The High Court dismissed a judicial review challenge to a deportation order and discharged an injunction that had restrained the first applicant’s deportation. Mr Justice Richard Humphreys ruled on 6 February 2018 that the applicants could not contest, in these proceedings, an earlier ministerial finding that the first and second applicants’ marriage was one of convenience.
The Minister for Justice and Equality made that finding on 9 July 2016 and upheld it on review on 20 March 2017. The first applicant did not challenge the reviewed decision. The judge held that, once the time to challenge it had expired, the finding could not be contested in the later judicial review.
The first applicant had applied for a residence card based on the marriage to the second applicant, a Latvian citizen. He received permission to remain for five years from October 2010. The Minister later refused permission under the 2015 regulations, proposed deportation and made a deportation order on 30 June 2017, notified on 7 July. The applicants began judicial review proceedings on 8 August 2017. An ex parte injunction restraining deportation was granted on 14 August.
The applicants argued that the Minister should have reconsidered the marriage finding when making the deportation decision, and that family rights had been disregarded. The judge rejected those submissions. He said there was no general duty to revisit a formal, unchallenged administrative decision because a later step depended on it. He also held that rights could not be asserted on the basis of a relationship found to be fraudulent for immigration purposes.
The judgment recounted the first applicant’s account that the couple separated in March 2011 and reunited in April 2015, and that they had lived together since mid-2015. The judge noted that the separation had not been reported to the Department. He also questioned the validity of District Court orders appointing the first applicant guardian and providing for joint custody of the second applicant’s child, because the first applicant was not the child’s father. The judge said the Minister had considered the claimed relationship with the child and found it insufficient in weight.
The judge further held that a marriage of convenience was void from the outset, including before the Civil Registration (Amendment) Act 2014. He said that view did not alter the outcome: even if he were wrong on that legal question, the Minister was not required to consider rights said to arise from the marriage. He also said he would refuse relief in any event because of what he described as the applicants’ lack of candour and wrongful conduct, placing primary responsibility on the first applicant.
The court dismissed the action and discharged the injunction under the principles in Okunade v Minister for Justice, Equality and Law Reform. The order ended the restraint on the first applicant’s deportation; the judgment did not itself state that deportation had taken place.