High Court: Judicial review dismissed where minister had yet to make a decision on deportation

About this case:

• Citation:
  [2025] IEHC 494
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Mark Heslin

Delivering judgment for the High Court, Mr Justice Mark Heslin concluded that “the present case is not about whether the applicant comes within Chenchooliah. Rather, it is about whether the applicant has a right to tell the respondent Minister what decisions to make, and when to make them. In short, the applicant is, in my view, impermissibly seeking to prescribe a particular procedure or approach, and to exercise control over the process of the Minister’s decision-making, in the manner deprecated in A.B.”

Background

The applicant, a citizen of Pakistan, arrived in the State via Belfast in May 2016 and married a UK citizen, prior to the UK exiting the European Union.

The applicant sought a residence card pursuant to Directive 2004/38/EC (the Citizens’ Rights Directive) and the European Communities (Free Movement of Persons) Regulations 2015.

That application was refused in circumstances where the supporting documentation proffered did not satisfy the respondent that his EU citizen spouse was exercising her rights through employment, self-employment, the pursuit of a course of study, in voluntary employment or the possession of sufficient resources in accordance with the requirements of Regulation 6(3) of the Regulations in the State.

The applicant requested a review of the decision, pending which the applicant was granted temporary permission to remain in the State.

The said review having been unsuccessful, the applicant’s solicitors applied on his behalf to the respondent’s Repatriation Unit for a temporary Stamp 1 permission to remain in the State.

That application was made on the basis that the applicant’s case came within C–94/18 Chenchooliah v. Minister for Justice and Equality, which considered whether domestic law could be used to seek the removal of an individual from a Member State who had previously enjoyed rights derived under the Citizens’ Rights Directive, a matter which the CJEU answered in the negative on the basis that once rights under the Directive had been acquired, any measure seeking to restrict or remove those rights needed to strictly conform with the Directive’s provisions and safeguards.

With no response having been received, the applicant’s solicitors in the interim unsuccessfully applied on his behalf under the Scheme for the Regularisation of Long-Term Undocumented Migrants. The applicant’s solicitors sought a review of that decision.

In the meantime, the applicant’s solicitors having repeatedly called upon the respondent to make a decision on the Stamp 1 application and having sought updates in relation to same, on 28 September 2023 an email from the Repatriation Division stated inter alia by way of update that based on the factual matrix before the respondent, it was the respondent’s position that the case would fall to be processed under the Immigration Act 1999 but that no decision would be made pending the outcome of the appeal under the Scheme.

Application for Judicial Review

On 19 February 2024, the applicant was granted leave by Ms Justice Niamh Hyland to seek inter alia an order of mandamus compelling the respondent to consider his case as one falling within the ambit of Chenchooliah, but was refused leave to seek an order of certiorari quashing the respondent’s purported decision to refuse to consider the applicant’s application to be considered under the Chenchooliah principles.

The High Court

At the outset of his judgment, Mr Justice Heslin considered that the gravamen of the applicant’s case was that the 28 September 2023 email was an express decision not to proceed by way of a removal order and that the applicant’s deportation would be pursuant to the 1999 Act.

In that regard, the judge expressed the view that when that email was read objectively and in context, “the respondent neither decided that the applicant should be removed from the State, at all, nor did she decide the manner in which to seek the applicant’s removal.”

Having analysed Chenchooliah, the court was satisfied that the principles therein concerned a decision to expel a third-country national whereas in the case before the court, no decision had been reached that the applicant was to be removed from the State.

The court was further satisfied that there was nothing in Chenchooliah obliging the respondent to make a decision between the Chenchooliah principles and the 1999 Act before making a decision as to whether the applicant should be removed in the first place.

Mr Justice Heslin observed that it was common case that the applicant had no lawful basis to remain in the State, and that “Chenchooliah deals with the manner in which someone can be removed from the State, the simple fact is that no decision has been made by the respondent which engages the principles in Chenchooliah. Thus, the applicant’s reliance on Chenchooliah is, in my view, misplaced.”

The judge accepted the respondent’s characterisation of the application as a “pre-emptive attack on any decision which the Respondent may or may not make” and that having regard to the principles in Damache v. Minister for Justice [2022] 1 IR 669 and Leng v. Minister for Justice [2015] IEHC 681, the application was premature where not even a proposal on part of the respondent to make a decision had been established.

Mr Justice Heslin emphasised: “Not having made any decision to date, the proposition at the ‘heart’ of the applicant’s case is that a decision which the Minister may make in the future will be an unlawful one and, therefore, this Court must intervene by way of judicial review. In my view, this proposition is unsupported by fact and wrong in law. There is not a ‘shred’ of evidence to the effect that the respondent intends to act other than in accordance with law and it seems to me that this Court must act on the presumption that, in making any future decision, the respondent Minister will act lawfully.”

The judge further highlighted that the applicant was in substance asking the court to direct the respondent as to how to exercise the executive power, noting that this would offend the separation of powers principle and could have the effect of compelling the respondent to bring forward a decision as to whether the applicant should or should not be removed from the State, and further would bind the respondent to applying Chenchooliah at some future point, regardless of the then factual or legal position.

The court also drew a parallel between the applicant’s case and that in A.B v. Minister for Justice [2016] IECA 48, pointing out that it was “trite law to say that judicial review concerns process not outcome, there is in fact no process in being in the present case, and the applicant is seeking to compel the respondent to follow a process of his choosing, with a view to obtaining a certain outcome”.

Concluding that the applicant was impermissibly seeking to prescribe a particular procedure or approach for the respondent and to exercise control over the respondent’s decision-making, the Court was satisfied that the applicant had not established any right to be removed from the State under the Chenchooliah principles as opposed to by way of deportation.

Conclusion

Accordingly, the High Court dismissed the application.

M v Minister for Justice [2025] IEHC 494