The Court of Appeal has refused an appeal by S.K. and J.K. over the refusal to renew S.K.’s Irish residence card and the revocation of a card previously granted to her.
In a judgment delivered on 12 December 2023, the court upheld the High Court’s refusal to quash the Minister for Justice’s review decision of 12 November 2021. The appeal concerned whether the process was lawful, including whether S.K. had to be offered an oral interview, whether the Minister had wrongly shifted the burden of proof, and whether her submissions had been properly considered. The court did not decide afresh whether the marriage was genuine.
S.K., an Indian national, had received a residence card as the spouse of J.K., an EU citizen. When she sought renewal, the Minister raised concerns that the marriage was one of convenience. Those concerns included a GNIB interview record in which J.K. was reported to have said that the marriage was arranged to help S.K. obtain a visa. J.K. later denied making those statements. The couple disputed the Minister’s concerns and provided written representations and supporting material.
The court found that S.K. had been told the basis for the concerns and had opportunities to respond, including during a review. Although the couple had said they would be willing to attend an interview together, the court found that they had not requested an oral hearing as a fair-procedure requirement before the review decision. It also noted that they did not identify what S.K. would have raised in person that she could not address in writing. On the circumstances of this case, an oral interview was not required.
The court rejected the argument that the Minister had improperly placed the legal burden on the couple. It said the Minister had to have sufficient evidence to support a marriage-of-convenience decision, but after raising well-founded concerns could seek further information from the applicant. The court considered the GNIB report alongside the other material, including the limited evidence of the couple’s shared household, and found no legal error in the Minister’s process or her engagement with the submissions.
The court stressed that the Minister’s marriage finding did not invalidate the marriage generally. It allowed the Minister to disregard it only when deciding S.K.’s residence application under the relevant regulations. The appeal was refused. The court’s provisional view was that the Minister was entitled to costs, subject to the appellants applying within 21 days for a hearing on that issue.