Opinion of the Advocate General — ECLI:EU:C:2026:11
Date: 2026-01-15
Language of the case: English

C-560/24 - 1
COURT OF APPEAL
THE COURT OF APPEAL 
Record No. 2023/142
Ni Raifeartaigh J.
Power J.
Meenan J.
BETWEEN/
APPELLANT
- AND -
THE MINISTER FOR JUSTICE
RESPONDENT
REQUEST FOR A PRELIMINARY RULING
ARTICLE 267 TFEU
COURT OF APPEAL
To:
The Registrar,
Court of Justice of the European Union
L- 2925 Luxembourg
The Court of Appeal of Ireland (Ms. Justice Nf Raifeartaigh, Ms. Justice Power, and
Mr. Justice Meenan) hereby refers to the Court of Justice of the European Union
(“the Court” or “CJEU”) for preliminary ruling in accordance with Article 267
TFEU the following question;
(1) Does Directive 2004/3 8/EC apply to a person who previously obtained 
the benefit of derived residence in a Member State by virtue of being a 
spouse of an EU national exercising Treaty rights in the host State but 
who has more recently become a citizen in the host State and is no longer 
the beneficiary of any derived benefit in the host State under the 
Directive, solely for the purpose of investigating and (if appropriate) 
making a determination or reaching a conclusion that he engaged in a 
fraud or abuse of rights and/or a marriage of convenience in the past 
within the meaning of Article 35 of the Directive in order to obtain a 
benefit under the Directive?
The facts of the case, the legal issues engaged, the need for the reference and all 
other relevant matters are set out in the judgment of the Court of Appeal dated the 
21st of June 2024. That judgment is as follows:-
COURT OF APPEAL
MS JUSTICE NI RAIFEARTAIGH 
"ne * Pek o.4 024
MR JUSTICE MEENAN
1-071014.
N HeSHICE O MODRE
DATED THE 2ND DAY OF JULY 2024
THE COURT OF APPEAL
Record Number: 2023/142
High Court Record Number: 2022/348
Ni Raifeartaigh J.
Power J.
Meenan J.
BETWEEN/ 
R.S.
APPELLANT
-AND-
THE MINISTER FOR JUSTICE 
RESPONDENT
JUDGMENT of Ms. Justice Ni Raifeartaigh delivered on the 21st day of
June 2024
curia GREFFE 
\h. Luxembourg
19 AOUT 2024
Issue to be decided
1. The primary issue in this case is whether the Minister had an entitlement pursuant to 
the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 
2015 to make a determination or finding that the appellant had entered a marriage of 
convenience and/or had submitted false or misleading information in respect of a residence 
card which had since expired in circumstances where, at the time of that determination, the 
appellant was a naturalised Irish citizen. The High Court held that the Minister did have such 
a power and that conclusion is the subject of this appeal.
2. The Minister also raises a secondary issue of delay, having regard to the passage of 
time between the dates of two of three allegedly invalid Ministerial decisions and the 
commencement of the proceedings.
The relevant legal framework
Directive 2004/38/EC (Citizens’Rights Directive)
3. Directive 2004/38/EC, often referred to as the Citizens’ Rights Directive (hereinafter 
“the Directive”) provides for the right of citizens of the European Union and their family 
members to move and reside freely within the territory of the Member States. It is not 
necessary for present purposes to set out the rights which are conferred by the Directive, but 
it is necessary to note the scope of beneficiaries under the Directive, given that the appellant, 
who was originally considered to have derived rights from his EU spouse and obtained a 
residence card on that basis, subsequently acquired Irish citizenship.
4. Article 3 states those to which the Directive applies: 
2
“...Article 3
Beneficiaries
1. This Directive shall apply to all Union citizens who move to or reside in a Member 
State other than that of which they are a national, and to their family members as 
defined in point 2 of Article 2 who accompany or join them.
2. Without prejudice to any right to free movement and residence the persons 
concerned may have in their own right, the host Member State shall, in accordance 
with its national legislation, facilitate entry and residence for the following persons:
(a) any other family members, irrespective of their nationality, not falling under the 
definition in point 2 of Article 2 who, in the country from which they have come, 
are dependants or members of the household of the Union citizen having the 
primary right of residence, or where serious health grounds strictly require the 
personal care of the family member by the Union citizen;
(b) the partner with whom the Union citizen has a durable relationship, duly attested.
The host Member State shall undertake an extensive examination of the personal 
circumstances and shall justify any denial of entry or residence to these people." 
(Emphasis added)
5. Article 35 on ‘Abuse of rights’ provides that:
“Member States may adopt the necessary measures to refuse, terminate or withdraw 
any right conferred by this Directive in the case of abuse of rights or fraud, such as 
marriages of convenience. Any such measure shall be proportionate and subject to the 
procedural safeguards provided for in Articles 30 and 31. ”
3
(Emphasis added)
6. It may also be noted that Recital 28 of the Directive states that one of its objectives is:
“(28) To guard against abuse of rights or fraud, notably marriages of convenience or 
any other form of relationships contracted for the sole purpose of enjoying the right 
of free movement and residence, Member States should have the possibility to adopt 
the necessary measures. "
European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 
548 of 2015)
7. The 2015 Regulations (hereinafter “the Regulations”) give effect to the Directive in 
this jurisdiction. They were amended during the timeline of events leading to these 
proceedings, but nothing turns on the amendments.
8. Regulation 27, as amended, is entitled ‘Cessation of entitlements’ and provides:
“27. (1) The Minister may revoke, refuse to make or refuse to grant, as the case may 
be, any of the following where he or she decides, in accordance with this Regulation, 
that the right, entitlement or status, as the case may be, concerned is being claimed 
on the basis offraud or abuse of rights: ...
(b) a residence card...
(2) Where the Minister suspects, on reasonable grounds, that a right, entitlement or 
status of being treated as a permitted  family member conferred by these Regulations 
is being claimed, or has been obtained, on the basis of fraud or abuse of rights, he 
or she shall be entitled to make such enquiries and to obtain such information as is 
reasonably necessary to investigate the matter.
4
(4) In this Regulation, ‘abuse of rights’ shall include a marriage of convenience... ” 
(Emphasis added)
9. Regulation 28, entitled ‘Marriages of convenience’, provides that:
“ ...28. (1) The Minister, in making his or her determination of any matter relevant 
to these Regulations, may disregard a particular marriage as a factor bearing on that 
determination where the Minister deems or determines that marriage to be a marriage 
of convenience.
(2) Where the Minister, in taking into account a marriage for the purpose of making 
a determination of any matter relevant to these Regulations, has reasonable grounds 
for considering that the marriage is a marriage of convenience, he or she may send a 
notice to the parties to the marriage requiring the persons concerned to provide, 
within the time limit specified in that notice, such information as is reasonably 
necessary, either in writing or in person, to satisfy the Minister that the marriage is 
not a marriage of convenience. " (Emphasis added)
Background
10. It is not necessary to set out the factual background other than in general terms. The 
appellant is a non-EU national who married an EU national (not from Ireland) in 2010 and 
was granted a residence card for five years in October of that year. He successfully applied 
for citizenship in 2015 and his residence in the State since that date has been on the basis of 
his citizenship (and not the Directive or Regulations). In 2018, he and his EU wife divorced. 
In 2019, a third-party non-EEA national made an application for residence on the basis that 
5
she was the mother of an Irish citizen child of whom the appellant was the biological father. 
This led the Residence Unit to make a notification to the EU Treaty Rights Investigation 
Unit and in turn to the Minister having concerns that the appellant’s 2010 marriage to the 
EU national, on the basis of which he had previously obtained a residence card, had been a 
marriage of convenience.
11. On the 18th December 2019 the Minister sent a letter to the appellant proposing to 
“revoke” his residence card (notwithstanding that the basis for his residence in the State at 
that time was his Irish citizenship). The appellant was informed of the Minister’s concerns 
that he had submitted false or misleading information and that the appellant’s marriage with 
the EU citizen had been one of convenience. These concerns were said to arise from a 
number of matters: the accelerated nature of the marital relationship, the lack of 
documentary evidence of a subsisting relationship prior to the marriage, the nature of his 
relationship with the third party non-EEA national, the fact that the student permission on 
foot of which he had been residing in the State had been due to expire some sixteen days 
after his marriage to the EU national, information from the Department of Employment 
Affairs and Social protection indicating limited economic activity on the part of the EU 
national in the State, the appellant’s never having informed the Minister of any change of 
circumstances.
12. The appellant made representations to the Minister by way of response. On 13th 
February 2020, the Minister “revoked” the appellant’s residence card (i.e. the card issued in 
2010) on the basis that the documentation he had provided in support of his application for 
residence was misleading, and the marriage to the EU citizen had been one of convenience.
13. The appellant sought a review and by letter dated 8th September 2020, it was indicated 
that the reviewer had reached the conclusion that the first instance decision should not be 
6
overturned. A request for a further review was declined. By letter dated 10th March 2021, 
the appellant’s solicitors wrote a letter threatening litigation on the basis that the 
“revocation” decision was invalid because the appellant was not subject to the Directive or 
Regulations because he was a naturalised Irish citizen, and therefore the Minister erred in 
law and acted ultra vires the Regulations in purporting to revoke his residence card.
14. There followed correspondence between the appellant’s solicitors and the Minister 
which culminated in a substantive response from the Minister on 1st February 2022. A letter 
of this date from the Minister indicated that the decision of 8th September 2020 had been 
rescinded and that, following a re-examination of the case, the initial decision of 13th 
February 2020 revoking the residence card had been set aside and substituted with a new 
decision of 1st February 2022.
15. The wording of new decision of 1st February 2022 was different and, significantly, did 
not purport to “revoke” anything. It said:-
“Having considered all of the information, documentation the Minister is satisfied 
that you submitted and sought to rely upon documentation and/or information that 
you knew to be false and/or misleading in order to obtain a status or entitlement, to 
which you would not otherwise be entitled, under Council Directive 2004/38/EC or 
the measures adopted by individual Member States to transpose the Directive. This 
is an abuse of rights in accordance with the Directive and Regulations. In making 
her determination, the decision maker in this case considered all the information 
available to her and you had previously been provided with ample opportunity to 
respond to the issues arising.
Moreover, the Minister is satisfied that your marriage to Union citizen, [name of 
EU national] was one of convenience that was contracted for the sole purposes of 
7
attempting to obtain an entitlement or status, which you would not other be entitled, 
under Council Directive 2004/38 EC or any measure adopted by a Member State to 
transpose the Directive. This marriage was never genuine, and any entitlement or 
status conferred under the Directive from your marriage to the Union citizen 
concerned are deemed withdrawn from the outset. ”
(emphasis added)
16. I pause here to note the precise character of the Minister’s decision. It was not and did 
not purport to be a revocation or refusal of a right of residence. It was what might (and will, 
in this judgment) be described as a determination or a finding or a conclusion as to a past 
state of affairs and/or the past conduct of the appellant. The phrase “deemed withdrawn from 
the outset” may be noted.
17. The new decision hinted that the determination or finding might be considered in the 
context of a re-assessment of his citizenship status, while acknowledging that any future re­
assessment would take all circumstances (including the appellants right under Article 8 of 
the European Convention on Human Rights) into account:-
“It is noted that you became a naturalised Irish citizen in 2016.
The above decision does not interfere with any rights which you may have under the 
Constitution or Article 8 of the European Convention on Human Rights. In any 
subsequent proposed decision where such interference may arise, please note that 
full and proper consideration will be given to these rights. "
8
The proceedings
18. On 20th June 2022, the appellant was granted leave to apply by way of judicial review 
for orders of certiorari in respect of all three decisions (of 1 st February 2022, of 13th February 
2020, and of 8th September 2020) on the ground that the Minister erred in law and the 
impugned decisions were ultra vires the 2015 Regulations in that the appellant, as an Irish 
citizen residing in the State, was not subject to any provisions of the Regulations or 
Directive.
19. The High Court (Owens J) delivered an ex tempore judgment on the 18th May 2023. 
He observed that the application had been brought on the ground that by the time the inquiry 
into the genuineness of his marriage was initiated, he was an Irish citizen and was not subject 
to those Regulations or to the Directive. He considered that the Minister was entitled to 
conduct the inquiry which related to a status between 2010 and 2015, and had nothing to do 
with the fact that he had acquired citizenship since that time. The Minister did not purport 
to revoke or refuse anything, and so a power to revoke or refuse was not in issue. The later- 
acquired citizenship did not confer immunity from the Ministerial inquiring into or 
investigating the grant of permission in the past. He was of the view that the decision of the 
CJEU in Lounes v Secretary of State for the Home Department (C-165/16, 14th November 
2016) (hereinafter ^Lounes'"'), relied upon by the appellant, was of no relevance to the issue 
before him.
20. The appellant appeals on a number of grounds which have not been reproduced here 
in full and are instead summarised for present purposes:
9
i. The High Court judge erred in finding that the appellant’s Irish citizenship 
was irrelevant to the Minister’s vires to make the decisions challenged by the 
appellant.
ii. The High Court erred in holding that there was nothing in the 2015 
Regulations or Directive 2004/3 8/EC to prevent the Minister from making 
the decisions challenged by the appellant because the provisions of Directive 
2004/3 8/EC cease to apply when a person becomes a naturalised citizen of a 
Member State.
iii. The High Court judge erred in failing to find that the applicant as an Irish 
citizen residing in the State was not subject to the 2015 Regulations or Article 
35 of Directive 2004/3 8/EC.
iv. The High Court judge erred in failing to find that if the Minister had concerns 
that naturalised Irish citizens had procured their certificates of naturalisation 
by fraud or concealment of material facts, the appropriate procedure was 
pursuant to s.19 of the Irish Nationality and Citizenship Act 1956 (or 
whatever version thereof is legislated for by the Oireachtas following the 
decisions in Damache v. Minister for Justice and Equality [2020] IESC 63 
and Damache v Minister for Justice and Equality [2021] IESC 6 (hereinafter 
,'‘'Damache',.>)
v. The High Court judge erred in failing to find that the Minister erred in law 
and acted ultra vires the 2015 Regulations and without jurisdiction.
10
Submissions on appeal
The appellant
21. The appellant notes that the respondent is raising an issue of delay in relation to the 
challenging of the earlier two decision, of 13 th February and 8th September 2020 and submits 
that because the last decision in time ( the decision of 1st February 2022) rescinds and 
revokes these earlier decisions, he needs only to challenge the latest decision in any event. 
However, the appellant also submits that if the Court finds for the appellant on the central 
net issue, it follows that the two earlier decisions, of 13th February 2020 and 8th September 
2020, were also misconceived and unlawful and that it would be open to the Court to grant 
certiorari of all three decisions. The appellant submits that it was appropriate not to 
challenge the first two decisions any earlier than he did, given that he was engaging with the 
Minister and giving the Minister a chance to set aside those decisions.
22. As to the substantive issue, the appellant submits as follows. He says that the High 
Court did not engage in any analysis of Regulations 27 or 28 of the 2015 Regulations. He 
submits that Regulation 27(1) allows for the taking of concrete decisions with a real and 
genuine effect and that where a person is seeking a decision on something not yet granted 
or recognised, the Minister is empowered to “refuse to make” the decision in the person’s 
favour or to “refuse to grant” the right of residence being claimed. He points out that the 
wording of Regulation 27(1) allows the Minister to revoke a residence card where it “is 
being claimed on the basis of fraud or abuse of rights”, which is written in the present tense. 
He submits that Regulation 27(1) does not give any power to the Minister to revoke a 
residence card that is no longer operative. That sort of power would not be necessary, he 
contends, because once a residence card has expired, it no longer has any effect. He submits 
that the only part of Regulation 27 that might potentially be read as applying to an Irish 
11
citizen who previously enjoyed a right under the Regulations is Regulation 27(2) (noting the 
phrase “has been obtained” therein), but he contends that it must be read in the overall 
context of Regulation 27. He submits that Regulation 27(2) does not give the Minister a 
freestanding investigative power to be invoked for the purpose of some sort of standalone 
inquiry that could result in a finding or declaration on some factual matter. Rather, a 
Regulation 27(2) inquiry can only be for the purpose of making a Regulation 27(1) decision.
23. The appellant also submits that Regulation 28, which sets out how a suspected 
marriage of convenience can be investigated, cannot provide the basis for a freestanding 
investigation which is not linked to a determination of any matter relevant to the 2015 
Regulations.
24. The appellant also submits that the High Court judge erred in failing to find that 
Directive 2004/3 8/EC and the 2015 Regulations do not apply to an Irish citizen living in 
Ireland and relies on the judgment of the CJEU in Lounes in support of the proposition that 
Directive 2004/38 ceases to govern the residence of a Union citizen who has exercised their 
right to reside in a Member State from the date they are naturalised as a citizen of the relevant 
Member State. He submits that once he ceased to be a “beneficiary” under the Directive, it 
ceased to apply to him in its entirety.
25. The appellant submits that if the Minister has concerns that a naturalised Irish citizen 
may have procured the certificates of naturalisation by fraud or concealment of material 
facts, the appropriate route is to take steps to revoke the certificates of naturalisation within 
the citizenship legal regime. He accepts that there is currently a lacuna in this regime by 
reason of the Supreme Court decision in Damache (which held subsections (2) and (3) of 
s.19 of the Irish Nationality and Immigration Act 1956 as amended were unconstitutional), 
but he contends that this does not permit the Minister to fill that lacuna by invoking the 
12
2015 Regulations or Directive 2004/3 8/EC against a naturalised Irish citizen as a prelude to 
invoking the applicable revocation power under s. 19. The appellant submits that the real 
reason the Minister has opted to rely on the 2015 Regulations in this case is because of the 
outcome of Damache, which currently prevents the procedure previously contained in s. 19 
from being utilised. He submits that the respondent is in reality seeking to mount a collateral 
attack on the appellant’s Irish citizenship, and that this constitutes an unlawful and improper 
purpose. He also submits that if the appellant did not take these proceedings, there would be 
a real risk that in due course the Minister would in the future invoke an amended version of 
the s.19 of procedures against him and rely on any failure on his part to challenge the 
impugned decisions as part of that procedure.
26. The appellant contended that if an amended s.19 procedure were in place and the 
Minister sought to use that procedure, the inquiry as to past events would be carried out in 
that context and reliance could not be placed on the impugned ‘determination’ made under 
the Directive. This, he said, made it manifestly clear that the impugned determination was 
an exercise in futility as it could not lead to any concrete action being taken on foot of it or 
any reliance being placed on it in the future. He contended that the Regulation should not be 
interpreted by the Court as permitting such a futile exercise.
The respondent
27. In the statement of opposition, the Minister raised an issue as to the failure of the 
appellant to comply with the time limits contained in Order 84, Rule 21 of the Rules of the 
Superior Courts, as amended, in respect of the first two decisions and suggest that the 
proceedings should be dismissed on grounds of delay. The Minister refers to relevant 
caselaw relating to the obligations imposed in law on an applicant seeking an extension of 
time under Order 84, Rule 21: O’Donnell v Dun Laoghaire Corporation [1991] IRLM 301; 
13
de Roiste v Minister for Defence [2001] 1 IR 190; Dekra Eireann Teoranta v The Minister 
for the Environment and Local Government [2003] 2 IR 270; and more recently, M O’S v 
The Residential Institutions Redress Board & Ors [2018] IESC 61. The Minister submits 
that these cases indicate that sufficient explanations must be offered for delays. The Minister 
also refers to G.K v Minister for Justice [2002] 2 IR 418 and Alam v Minister for Justice 
[2022] IEHC 439 for the proposition that there should be circumstances outside the 
applicant’s control which could not reasonably have been anticipated.
28. On the merits, the Minister submits as follows. She submits that the High Court judge 
was correct in determining that whether the Minister has the power to revoke a residence 
card that is no longer operative does not fall for decision and that the case concerns the 
power to investigate only. In respect of that power to investigate, the Minister’s position is 
that the subsequent acquisition of citizenship by a former family member of an EU national 
does not extinguish the Minister’s powers under Regulation 27 and/or 28 of the 2015 
Regulations to investigate a reasonable suspicion that the person concerned claimed or 
obtained a right or entitlement or status conferred by the 2015 Regulations on the basis of 
fraud and/or abuse of rights, notwithstanding that the appellant no longer benefits from any 
derived rights of residence under the Regulation/Directive.
29. She submits that the Directive and the 2015 Regulations give the Minister wide powers 
to take corrective action in cases of fraud, in particular marriages of convenience. The 
prohibition of fraud and abuse of rights is an important principle enshrined in EU law. In 
this regard the Minister refers to Recital 28 and Article 35 of the Directive on the right to 
guard against abuse of rights, fraud, and marriages of convenience. The Minister also notes 
that the European Commission’s Handbook on addressing the issue of alleged marriages of 
convenience (Comm (2014) 604 final) defines abuse under the directive as ^an artificial 
14
conduct entered into solely with the purpose of obtaining the right of free movement and 
residence under EU law which, albeit formally observing the conditions laid down by EU 
rules, does not comply with the purpose of those rulesy The Minister also refers to the “rich 
vein” of EU caselaw on fraud and abuse of rights: Case C-251/16 Edward Cussens and 
Others v. T. G. Brosmany Case C-33/74 Johannes Henricus Maria van Binsbergen v. 
Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid, para. 13; The Queen v 
Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for Home 
Department (Case C-3 70/90, 7th July 1992, hereinafter “Singh"), para. 24; Case C-212/97 
Centros Ltd v. Erhvervs 240/25; Case C-110/99 Emsland-Starke GmbH v. Hauptzollamt 
Hamburg-Jonas). The Minister notes that in Omer Altun & ors v Openbaar Ministerie (Case 
C-359/16, 6th February 2018) the CJEU held, in a judgment delivered by the Grand 
Chamber, that:-
“49. The principle of prohibition of fraud and abuse of rights, expressed by that 
case-law, is a general principle of EU law which individuals must comply with. The 
application ofEU legislation cannot be extended to cover transactions carried out for 
the purpose of fraudulently or wrongfully obtaining advantages provided  for by EU 
law... "
30. The Minister submits that Lounes, a central plank of the appellant’s case, did not 
concern any alleged abuse of rights or marriage of convenience. She submits that the fact 
that the appellant was not a beneficiary under the Directive is not determinative of whether 
the appellant could be the subject of a finding of fraud or abuse of rights under the Directive. 
The Minister also relies on Singh and O and B v. Minister for Immigration (Case C-456/12, 
12th March 2014, hereinafter “O and B”) as authorities for the proposition that one does not 
15
have to be a beneficiary under Article 3 of the Directive or a Union citizen to fall within the 
scope of the Directive.
31. The Minister refers to authorities concerning statutory construction (including 
Montemuino v Minister for Communications [2013] IESC 40 and Heather Hill Management 
Company CLG v An Bord Pleanala & Ors. [2022] IESC 43) and submits that on a plain 
reading of Regulation 27(2) of the 2015 Regulations, the Minister is empowered to 
investigate a reasonable suspicion that any right, entitlement or status conferred by these 
Regulations that “has been ” obtained on the basis of fraud or abuse of rights; that is to say, 
the Minister is entitled to investigate a past state of affairs even if the person’s current status 
no longer depends upon it. Further, and contrary to the submission of the appellant, it is not 
necessary that an investigation under Regulation 27(2) be related to a (refusal or revocation) 
decision made under Regulation 27(1).
32. The Minister also submits that the determination of the Minister was authorised by 
Regulation 28 because it involved a determination about a ‘matter relevant to these 
Regulations’. The determination was, inter alia, that the appellant’s marriage was one of 
convenience following the investigation into the bona fides of his marriage, the subject of 
Regulation 28.
33. The Minister invokes Heather Hill for necessity to engage in a contextual 
interpretation and submits that the purpose of Regulation 28 is to empower the Minister to 
take the necessary measures to deal with marriages of convenience, consistent with and in 
furtherance of Article 35 of the Directive.
34. The Minister also submits that the caselaw establishes that she is not precluded from 
investigating the circumstances which led to the grant of the residence card permission to 
the appellant at a time later than the time of the granting of the residence card. She relies on 
16
Islam & Ors. v Minister for Foreign Affairs and Trade [2019] IEHC 559; MAM (Somalia) 
v Minister for Justice & Ors [2020] 3 IR 50 and S.S.A v Minister for Justice [2023] IEHC
32 (upheld by this Court in SSA v Minister for Justice [2023] IECA 277; see paragraph 28 
in particular). The Minister notes that in M.K.F.S (Pakistan) v Minister for Justice and 
Equality [2020] IESC 48, McKechnie J. noted that the possibility that the marriage in that 
case was a marriage of convenience only seriously surfaced more than five and a half years 
later in the course of a second residency card application. She submits that parties to a 
marriage of convenience often contrive to give the Minister the impression that the marriage 
is genuine and that compliance with the Regulations have been formally observed, and it 
often takes years for the true picture to emerge and therefore the ability of the Minister to 
investigate at a later stage the initial grant of a residence card forms an important part of 
ensuring the integrity of the immigration system.
35. The Minister submits that the appellant did not obtain leave to argue the point about 
collateral attack/preparing for future revocation. In the Minister’s submission, it falls outside 
his one ground of complaint as pleaded in the Statement of Grounds and the issue cannot 
therefore be properly advanced in these proceedings. In the alternative, the Minister submits 
that there is no question of the Minister attempting to collaterally attack the appellant’s 
citizenship. As set out by Dunne J. in Damache v Minister for Justice [2020] IESC 63 at 
paragraph 70 in the context of possible revocation of citizenship, the process of revocation 
is an entirely separate exercise. Any process regarding the Appellant’s citizenship would 
need to be initiated under the legislative procedures contained in the Irish Nationality and 
Citizenship Act 1956, as amended. Further, as the letter of 1st February 2022 expressly states, 
the decision to revoke the Appellant’s residence card does not interfere with his 
Constitutional and Article 8 ECHR rights which ‘will’ be considered in any subsequent 
decision that may interfere with such rights.
17
36. At the oral hearing, the appellant maintained that it was not necessary for him to argue 
that the Minister was engaged in a collateral attack on his citizenship and that he was content 
to rely on the arguments without that dimension being included. It is therefore not necessary 
in this judgment to address the issue of any alleged collateral attack as a self-standing ground 
of challenge.
Discussion and conclusions
The delay objection by the Minister
37. As to the issue of the time limit/delay raised by the Minister, this is raised in respect of 
the first two decisions of the Minister (the first instance decision and the review decision), 
but not the third decision which contained the determination with which we are concerned. 
The third decision rescinded the second decision (the review decision), and set aside the first 
decision. In circumstances where there is no objection to the timeframe within which the 
appellant challenged the third decision containing the impugned determination, and in a 
context where he was engaging with the Minister with regard to the earlier decisions (both 
of which were deprived of effect in any event by the Minister’s own third decision), in my 
view the court should consider all three decisions, not least because it is somewhat difficult 
to consider the third decision without reference to the first two.
The substantive issues
38. The detailed submissions of the parties on the merits demonstrate that there are two 
connected issues, one of which is a question as to the scope of the Directive in EU law, the 
other as to the proper interpretation of the 2015 Regulations. The first of these questions 
concerns whether or not the appellant was a “beneficiary” under the Directive at the time of 
18
the Minister’s determination and whether or not the answer to this question necessarily 
determines the applicability or otherwise of the Directive to him more generally. This 
question as to the scope of the Directive is a question of EU law. The second question, 
concerning the interpretation of the Regulations, relates to whether the Minister has, as the 
appellant put it, a “free-standing” power under the Regulations to make certain factual 
determinations at a time and in a context where there is no possibility of linking the 
determination to any decision to “revoke, refuse to make or refuse to grant” any right, 
entitlement or status in accordance with the Regulation (this being the wording of Article 
27(1) of the Regulations). This is a question of statutory interpretation albeit one that is 
linked with the question of EU law described above. Although the two questions are 
interrelated, I will address the EU law question in the first instance.
Does the Directive apply to an Irish citizen after he has ceased to be a 
beneficiary of it by reason of acquiring citizenship?
39. A central plank of the appellant’s case concerning the interpretation of the scope of the 
Directive is the decision in Lounes. He contends that this establishes a “bright-line” rule that 
where a person ceases to be a beneficiary under the Directive, the Directive simply ceases 
to have any application to him. In Lounes, a third country national (male) living in the United 
Kingdom married a Spanish national (female) who had become a naturalised British citizen, 
having originally entered and worked in the United Kingdom under the Directive. A 
question was referred to the CJEU as to whether the wife ceased to be covered by the 
Directive from the date of her naturalisation and whether or not the husband could rely upon 
a derived right of residence under the Directive from that date onwards.
19
40. The court held that the husband did not have a derived right of residence under the 
Directive, although it went on to hold that he was eligible for a derived right of residence 
under Article 21(1) TFEU on conditions which must not be stricter than those provided for 
by the Directive. What we are concerned with in the present case is the question of the scope 
of the Directive.
41. Concerning the applicability of the Directive, the key paragraphs of the court’s 
judgment are as follows
“37 The Court has accordingly held that, since, under a principle of international 
law, a Member State cannot refuse its own nationals the right to enter its territory 
and remain there and since those nationals thus enjoy an unconditional right of 
residence there, Directive 2004/38 is not intended to govern the residence of a Union 
citizen in the Member State of which he is a national. Consequently, in view of the 
case-law referred to in paragraph 32 of this judgment, nor is the directive intended 
to confer, in the territory of that Member State, a derived right of residence on family 
members of that citizen who are third-country nationals (see, to that effect, 
judgments of 5 May 2011, McCarthy, C-434/09, EU:C:2011:277, paragraphs 29, 34 
and 42, and of 12 March 2014, O. andB., C-456/12, EU:C:2014:135, paragraphs 42 
and 43).
38 In the present case, it is common ground that Ms Ormazabal, who is a Spanish 
national, exercised her freedom of movement by moving to and residing in a Member 
State other than that of which she was a national when she left Spain for the United 
Kingdom in 1996. It is also common ground that she had the status of a ‘beneficiary’ 
of Directive 2004/38 within the meaning of Article 3(1) thereof and that she was 
20
resident in the United Kingdom under Article 7(1) or — as the United Kingdom 
Government appears to accept — Article 16(1) of the directive, at least until she 
acquired British citizenship by naturalisation.
39 However, as the Advocate General has noted in points 48 and 63 of his 
Opinion, Ms Ormazabal’s acquisition of British citizenship gave rise to a change in 
the legal rules applicable to her, under both national law and the directive.
40 Since then, Ms Ormazabal has in fact been living in one of the Member States 
of which she is a national and consequently enjoys an unconditional right of 
residence there in accordance with the principle of international law mentioned in 
paragraph 37 of this judgment.
41 It follows that, since she acquired British citizenship, first, Ms Ormazabal has 
ceased to fall within the definition, recalled in paragraph 34 of this judgment, of a 
‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38. Secondly, in 
view of the reasoning set out in paragraphs 36 and 37 of this judgment, the directive 
no longer governs her residence in the United Kingdom, as that residence is 
inherently unconditional.
42 That being so, it must be held that Directive 2004/38 has not applied to 
Ms Ormazabal’s situation since she was naturalised as a British citizen.
43 That conclusion is not called in question by the fact that Ms Ormazabal has 
exercised her freedom of movement by going to the United Kingdom and residing 
there or by the fact that she has continued to hold Spanish nationality in addition to 
British citizenship. Despite that combination of circumstances, the fact remains that, 
since she acquired British citizenship, Ms Ormazabal has not been residing in a 
21
‘Member State other than that of which [she is] a national’, as referred to in 
Article 3(1) of Directive 2004/38, and therefore no longer falls within the definition 
of a ‘beneficiary’ of that directive within the meaning of that provision.
44 In the light of the case-law referred to in paragraphs 32 and 37 of this 
judgment, her spouse, Mr Lounes, who is a third-country national, likewise does not 
fall within that definition and thus cannot benefit from a derived right of residence 
in the United Kingdom on the basis of Directive 2004/38.” (Emphasis added)
42. Obviously the factual distinction between the present case and the factual matrix in 
Lounes is that it is the non-EU national (the appellant) who has obtained citizenship of the 
Member State in which he is living, and not the EU national as in Lounes. The appellant 
maintains that the same principle applies, however, and that from the date upon which he 
acquired Irish citizenship, the Directive no longer governs his residence in Ireland and that 
the Minister had no power to do anything in relation to him under the Directive/Regulations 
quite simply because he was no longer subject to that legal regime.
43. The Minister responds by saying that the decision in Lounes should be distinguished 
because it arose in an entirely different factual and legal context. She says that (i) there was 
no suggestion of any fraud or abuse of rights in Lounes; and (ii) a concrete benefit from the 
Directive was being sought in Lounes (i.e. a right of residence for the husband) whereas the 
question of obtaining a benefit under the Directive/Regulations does not arise, as the 
appellant’s citizenship is now the source of his right of residence.
44. The factual landscape as between the two cases is indeed different in the two respects 
identified by the Minister: Lounes did not involve any suspicion of fraud or marriage of 
22
convenience, and the applicant therein was seeking to derive a benefit under the Directive 
.However, neither of these points may necessarily be determinative as to whether the 
reasoning of Lounes can be applied or whether it should be distinguished in the present case. 
It is true that, as Advocate General Bot pointed out in his opinion, the issue involved a 
question of the scope of the Directive ratione personae. For example, having referred to 
Article 3(1) of the Directive at paragraph 47, he continued:
“48. That provision thus makes nationality a determining criterion for the scope 
ratione personae of the directive, so that acquisition by Ms Garcia Ormazabal of the 
nationality of the host Member State clearly gave rise to a change in the legal rules 
applicable to her. It is upon those grounds that the United Kingdom relies in order to 
demonstrate that, by reason of her naturalisation, Ms Garcia Ormazabal can no 
longer fall within that definition.
49. While it is clear that Ms Garcia Ormazabal fell within the scope of Directive 
2004/38 when she exercised her freedom of movement by leaving Spain, her 
Member State of origin, to move to the United Kingdom in September 1996 in order 
to reside there, first as a student and then as an employee at the Turkish Embassy, 
(14) the fact that on 12 August 2009 she acquired the nationality of the host Member 
State in which she had resided for a continuous period since 1996 now excludes her 
from the scope ratione personae of the directive.
50. While it is true that, according to settled case-law, the provisions of the 
directive must not be interpreted strictly, the fact remains that the wording of Article 
3(1) of the directive, as interpreted by the Court, does limit its scope ratione personae 
23
to Union citizens who reside in a Member State other than that of which they are 
nationals.
51. Extending the scope ratione personae of the directive to a Union citizen who, 
like Ms Garcia Ormazabal, has acquired the nationality of the host Member State 
would therefore lead to departing from the very wording of Article 3(1) of Directive 
2004/38 and from the Court’s firmly established case-law.”
45. Accordingly, it is arguable that the Directive simply does not apply ratione personae 
because an applicant or his/her spouse do not fall within its scope as defined in Article 3(1). 
On this view, the points of distinction as between the present case and Lounes raised by the 
Minister (as set out at paragraph 43 above) would not necessarily be relevant. However, this 
point of view arguably fails to take account of Article 35 of the Directive.
46. The Minister referred to the decisions in Singh and O and B, but it seems to me that 
these decisions tend to support the appellant rather than the Minister. In neither case was the 
Directive held to apply; rather the outcome was anchored in more general Treaty provisions, 
as we shall see.
47. The Singh case, decided in 1992, concerned a predecessor measure to the current 
Directive and involved a British wife and an Indian husband, who married in the UK and 
moved to Germany to work (in an exercise of the wife’s rights under the Directive). They 
then returned to the UK to open a business, but subsequently separated and divorced. The 
basis for the wife’s re-entry into the UK was the exercise of her citizenship rights, and the 
question was whether the non-EEC husband was entitled to enter and remain in the UK in 
those circumstances. While it was held that he was so entitled, the conclusion was reached 
on the basis of Articles 48 and 52 of the Treaty of Rome and not on the basis of rights directly 
24
conferred by the Directive, with the court saying that the non-EEC spouse must enjoy at 
least the same rights as would be granted to him or her under Community law as if his or 
her spouse entered and resided in the territory of another Member State.
48. Similarly, in O and B, two third country spouses of two Dutch nationals, who had 
been living in Spain and Belgium respectively (on the basis of an exercise of the Dutch 
nationals’ rights under the Directive), sought residence in the Netherlands in order to join 
their spouses there and were refused. The court held that Article 21(1) TFEU must be 
interpreted as meaning that where a Union citizen has created or strengthened a family life 
with a third-country national during genuine residence in a Member State other than that of 
which he is a national, the provisions of the Directive apply by analogy where that Union 
citizen returns, with the family member in question, to his Member State of origin. In 
Lounes, Attorney General Bot confirmed that in O and B, the court “found that Directive 
2004/38 was not applicable, ruling that a third-country national who is a family member of 
a Union citizen may not, on the basis of that directive, invoke a derived right of residence in 
the Member State of which that citizen is a national.” He added: “In doing so, the Court 
relied upon a literal, systematic and teleological interpretation of the directive” (See paras 
56 and 57, Lounes).
49. In the above decisions, the question of whether or not the Directive applied to the 
individual appears to have been treated as coterminous with whether or not the EU spouse 
was receiving a “benefif' under the Directive. In this regard, the decision in Chenchooliah 
v Minister for Justice and Equality (Case C-488/21, 10th September 2019, hereinafter 
^iChenchooliah'‘,) is of interest, insofar as it does not appear to have treated the two issues as 
identical. This in turn raises questions as to whether Lounes should be read as applying to 
all situations involving persons who have ceased to rely upon Treaty rights (whether direct 
25
or derived) because they have become citizens, or whether the conclusion arises from the 
particular facts which involved a question of potential benefit under the Directive as distinct 
from a declaration as to a past state of affairs involving fraud or abuse of rights.
50. In Chenchooliah, a third country national (a Mauritian woman) married a Portuguese 
national working in Ireland; he was therefore exercising his rights under the Directive at that 
time. She initially received a three-month residence permit pursuant to the Directive, but 
after her husband returned to Portugal, where he was imprisoned for a criminal offence, the 
Minister refused the wife any further right of residence under Article 7 and proposed to make 
a deportation order pursuant to the Immigration Act 1999. The wife contended that the 
appropriate regime to consider her removal from the jurisdiction was the Directive and not 
the 1999 Act, s.3 of which automatically imposed an indefinite ban on entry into the 
territory.
51. A question was referred to the CJEU as to whether an expulsion in such 
circumstances should be carried out in compliance with the provisions of the Directive, or 
whether it fell within the competence of the national law of the Member State. The court 
held that the Directive was applicable to a decision to expel a third-country national and that 
in those circumstances the relevant safeguards laid down in Articles 30 and 31 of Directive 
2004/38 were applicable. This was despite the fact that the applicant, since her spouse’s 
return to Portugal, no longer enjoyed the status of ‘beneficiary’ within the meaning of Article 
3(1) of the Directive. The concept of ‘beneficiary’, it said, was “a dynamic concept” in that, 
even though acquired in the past, the status may subsequently be forfeited if the requirements 
laid down by that provision are no longer met. Nonetheless, the expulsion regime in the 
Directive continued to apply:
26
“It should be noted in that regard that Directive 2004/38 does not contain only rules 
governing the conditions under which one of the various types of residence rights it 
makes provision for may be obtained and the conditions to be met in order to be able 
to continue to enjoy the rights concerned. That directive also lays down a set of rules 
intended to govern the situation arising in which entitlement to one of those rights is 
lost, inter alia where the Union citizen leaves the host Member State.” (para 70)
The continued applicability of the Directive’s expulsion provisions could, the court 
considered, be “reconciled” (para 78) with the fact that the person concerned no longer has 
the status of ‘beneficiary’ within the meaning of Article 3(1) of the Directive even though 
the loss of that status was that the person concerned no longer had the rights of movement 
and residence they previously held for a certain period of time. Thus, in Chenchooliah the 
scope of the Directive encompassed an individual despite her no longer being a potential or 
actual ‘beneficiary’ under the Directive.
52. Counsel for the appellant in his reply suggested that any apparent contradiction or 
inconsistency between Lounes and Chenchooliah could be understood by reason of the fact 
that Lounes concerned a person who has acquired the status of citizenship, whereas 
Chenchooliah did not. He submitted that once an individual has acquired the special status 
of citizenship in the Member State in question, Article 3(1) precludes the Directive from 
applying to that individual with regard to any matter at all, including an inquiry and 
conclusion as to whether the individual had in the past obtained a benefit under the Directive 
through fraud or abuse of rights.
53. Having considered the wording of Article 3 (1) of the Directive together with the above 
authorities concerning the scope and applicability of the Directive, I am inclined to the view 
that the appellant entirely ceased to be the subject of the regime established by the Directive 
27
from the date that he acquired citizenship of Ireland, but the matter is not free from doubt. 
If the Directive continues to govern the expulsion of a non-EU spouse who has lost 
entitlement to the benefit of residence under the Directive because the Union citizen spouse 
has left the host Member State (as was decided in Chenchooliah), it is possible to argue by 
analogy that the Directive continues to govern the question of making a determination of 
whether a person had originally obtained the benefit of residence under the Directive by 
fraud even if the person has departed from the Directive’s regime of benefits by virtue of 
having obtained citizenship in the host Member State.
54. Accordingly, while I lean to one particular interpretation of Lounes, I do not think the 
matter is free from doubt as a matter of EU law. I will return to this uncertainty and its 
implications for how the Court should proceed in this case after I have addressed the next 
major theme in the parties’ submissions.
Should the Regulations be interpreted as authorising the Minister to make 
an adverse finding in respect of the appellant when no issue of refusal or 
revocation of residence was in question any more by reason of his having 
acquired Irish citizenship?
55. The net question is whether the Regulations authorise the Minister to make a finding 
or determination, at a time after the appellant had become an Irish citizen, that in the past he 
had entered a marriage of convenience and/or submitted false and misleading information 
in order to obtain residence rights under the Directive.
56. The appellant contends that in circumstances where the Minister was not, in the 
decision of 1st February 2022, purporting to revoke the previous grant of permission to reside 
(because he had no power to do so in circumstances where the appellant was an Irish citizen), 
28
he had no power to engage in a “free-standing” investigation leading to a determination as 
to a past state of affairs which was simply incapable as a matter of law of leading to any 
concrete decision such as revocation of, or refusal to grant, a residence permit.
57. The Minister contends that the Regulations should be read as entitling the Minister to 
make a determination about a past state of affairs both because of their wording and also 
having regard to the context to the Regulations, implementing a Directive in which the 
prevention and detection of fraud and abuse of EU residence rights is an important 
component. The Minister’s position found favour with the High Court. Both parties relied 
upon the wording of provisions and context of the Directive and the Minister drew attention 
to certain authorities.
Certain authorities cited do not advance the argument
58. Before turning to the wording of the Regulations, particularly Regulations 27 and 28, 
I would observe that most of the authorities relied upon by the Minister were not of particular 
assistance, either because they arose out of factual situations where residence pursuant to 
the Directive/Regulations was a live issue being considered by the Minister at the time of 
the investigation and determination, unlike the present case, or because the case arose in the 
context of a different legal regime.
59. For example, the Minister referred to MAM (Somalia) v Minister for Justice & Ors 
[2020] 3 IR 350, where the Supreme Court held that, as a matter of statutory interpretation, 
a refugee who subsequently acquired Irish citizenship by naturalisation did not lose the right 
to apply for family reunification under section 18 of the Refugee Act 1996. (This was 
important in circumstances where the conditions for family reunification were less onerous 
under the 1996 Act than under the Immigration Act 2004 Act and Ministerial policy 
thereunder). The court held that eligibility depended upon a declaration of refugee status
29
being in force and not on the person actually being a refugee at the time. I do not think the 
decision can be viewed as creating a general principle or one which transposes to the present 
context, because the judgment of MacMenamin J (with whom all other members of the 
court agreed) demonstrates that there was a detailed and close reading of the text of the 
particular Act in its entirety as well as a consideration of the overall legislative and 
international context concerning refugees. We are concerned here with a different regime 
entirely, namely an EU Directive and its transposing domestic Regulations.
60. Also cited by the Minister is S.S.A v Minister for Justice [2023] IEHC 32. The 
Minister contends that this supports the proposition that the Minister is entitled to revisit an 
earlier decision granting residence if information later emerges which suggests there may 
have been a marriage of convenience. However, in that case the revisiting by the Minister 
(in 2017/2018) of the earlier decision to grant permission (in 2013) was carried out in the 
context of a live application for a further permission to reside. Such a live possibility did 
not exist in the present case. It is in that context that one has to read what was said at 
paragraph 17 by the High Court (Bolger J), noting in particular the opening words of the 
quotation:
“When revoking the applicant’s permission, the Minister is permitted to rely 
on facts and circumstances that existed when the applicant was granted his 
residence card in 2013. The review decision was not a review of 2012 and 
2013 but was a decision based on, inter alia, the absence of evidence of a 
relationship between 2012 and when the parties separated in December 2017 
or January 2018. The marriage that the Minister accepted in 2012 cannot be 
forever beyond the Minister’s examination given that the Regulations 
expressly provide for a power to revoke and the legislative scheme envisages 
30
the possible revocation of a residence card, a power that is not conditional on 
evidence of an error in the original decision to grant that residence card.”
(Emphasis added)
61. Much the same can be said of Mistu v Minister for Justice and Equality [2023] IEHC 
499, where the High Court (Barr J) remarked at paragraph 70 that “[t]here is no time 
limitation on the revoking of a permission, where a finding of fraud has been made”. That 
was in a context where the Minister revoked the permission to reside ab initio on the ground 
of the marriage having been one of convenience. The context was again one where the 
revocation power was under live consideration. The objection in the present case is not so 
much to the retrospective nature of the inquiry as to the making of a finding which is 
untethered to any determination as to residence or status under the Regulations.
The wording of Regulations 27 and 28
62. Let us turn now to a close analysis of the wording of the Regulations, and first to 
Regulation 27(1). It provides that the Minister may “revoke, refuse to make or refuse to 
grant” any of the items (to use a neutral word) on a list of items (a)-(h) (which is then set 
out) where she decides in accordance with the Regulation that the right, entitlement or status 
“is being claimed on the basis of fraud or abuse of rights”. Item (a) in the list is a decision 
that a person be treated as a “permitted family member”. Item (b) is a residence card, 
permanent residence certificate or permanent residence card. The remaining items are rights 
of residence under various sub-parts of regulations 9, 10 and 12.
63. The use of the present tense in Regulation 27(1) may be noted; it is clearly talking 
about a current or live application for a residence card (“is being claimed). The Minister 
acknowledges this wording, and accepts that there was no live application for residence or 
31
live residence card at the time of the impugned determination, but asks us look closely at 
the wording of Regulation 27(2), which contains an investigative power. This gives the 
Minister the power “to make such inquiries and to obtain such information as is reasonably 
necessary to investigate the matter. This is said to apply not only where a right, entitlement 
or status of being treated as a permitted family member “is being claimed” but also where it 
“has been obtained’  (on the basis of fraud or abuse of rights.) Clearly, therefore, this power 
to investigate applies not only to a situation where the applicant seeks the right, entitlement 
status prospectively, but also where the applicant has already obtained the right, entitlement 
or status. It is clearly capable of being exercised retrospectively in the sense of conducting 
an inquiry and making a determination about events in the past. But again, the objection in 
the present case is not so much to the retrospective aspect of the Minister’s determination 
but to its “free-standing” nature. Is the investigative power in Regulation 27(2) “free­
standing” or is it to be exercised in the context of some other power to take some concrete 
action, such as revoking or refusing a right of residence?
64. Both sub-parts of Regulation 27 are sub-parts of a single provision which is entitled 
“Cessation of entitlements”. They are not separate provisions within the Regulations, which 
might have supported the view that one provisions concerns a revocation/refusal power, and 
the other an investigative power. Instead, both are grouped under a common heading which 
suggests that each is linked to the other, and that the investigative power is linked to the 
overall issue of “cessation of entitlements” as Regulation 27 is entitled. Further, there is no 
reference in either sub-part to making a “determination” or “declaration” of any kind. This 
could suggest that the investigative power is envisaged as a stepping-stone in a process 
which may lead to the cessation of an entitlement, rather than something which is intended 
to lead to a declaration of a state of affairs which stands alone and has no further 
32
consequence. Further, the list of items in Regulation 27(l)(a)-(h) inclusive sets out a list of 
rights or entitlements under the Regulations themselves. On this view, the retrospective 
power in Regulation 27(2) to investigate whether something “has been obtained” on the 
basis of fraud or abuse of rights is not at large but is linked to the possibility of making a 
decision involving the cessation of one of the rights or entitlements in Regulation (l)(a) to 
(h) inclusive. This presupposes that the cessation of any such rights or entitlements is still a 
live issue at the time of the investigation and determination (which was not the case when 
the impugned determination was made in respect of the appellant).
65. We look now at Regulation 28. Regulation 28(1) provides:
“The Minister, in making his or her determination of any matter relevant to these 
Regulations, may disregard a particular marriage as a factor bearing on that 
determination where the Minister deems or determines that marriage to be a 
marriage of convenience.”
This begs the question of what constitutes a “matter relevant to these Regulations”. Here 
M.K.F.S. (Pakistan) comes into play.
66. The Supreme Court decision in M.K.F.S. is an important decision generally with 
regard to the consequences of a determination that a marriage is one of convenience under 
the 2015 Regulations, with the court holding (1) that that such a determination may be relied 
upon by the Minister in the context of any subsequent deportation process and (2) that such 
a determination does not render the marriage a nullity at law but rather was limited to the 
immigration/deportation context. For present purposes, the Minister argues that it also 
constitutes authority for the proposition that an investigation into a marriage of convenience 
33
may take place retrospectively and after a residence card has issued or even expired. The 
Minister points out that it was not until 2015 that it was determined that there had been a 
marriage of convenience in that case, although the first residence card had been obtained in 
2010. Again, however, an important factual point of distinction is that the determination in 
that case was made in the context of, and as a precursor to, a concrete decision to refuse a 
residence card, unlike the present case. The deportation order under challenge in M.K.F.S. 
was made only after the determination had been made in the context of an application for a 
residence card (and which led to its refusal).
67. However, of particular interest is the following passage in the judgment of 
McKechnie J:
“65. These measures [(the provisions of the Directive)] also apply to family members 
of the Union citizen, as so defined but regardless of nationality. Without these 
provisions, but of course subject to any other international obligations so entered into, 
it would have been the sovereign right of each state to control its borders via its own 
asylum and immigration system. As we know, the 2015 Regulations gave effect in 
domestic law to this Directive. Accordingly, it seems to me that at the level of principle 
there is an inextricable link and direct relationship between the various legislative 
measures which deal with the right to enter and remain in this jurisdiction and on 
what basis, and being refused that right or being removed from the State, as the case 
may be. Such of course would have to yield to any express or necessarily implied 
reservation outlined in any such legislation. It is against that broad backdrop that the 
Appellants’ submission that the Minister’s finding of a marriage of convenience 
cannot be transposed into or relied on in the immigration process must be considered.
This argument is based on an asserted interpretation of Regulation 28, taking subpara. 
34
(1) as an example. It reads: “The Minister, in making his or her determination of any 
matter relevant to these Regulations, may disregard a particular marriage ...” 
(emphasis added) It is suggested therefore that the finding can only apply to the 
residency card situation, and cannot find its way through any avenue of law into the 
deportation process.
66. Leaving aside altogether how disjointed and incoherent an interpretation this 
would give rise to, I am satisfied that Regulation 28(6) provides a complete answer to 
this assertion. That provision defines a marriage of convenience as one entered into 
for the sole purpose of obtaining an entitlement under the Directive or the 2015 
Regulations; or under any other measure adopted to transpose the Directive; or, it then 
continues, under: “(c) Any law of the State concerning the entry and residence of 
foreign nationals in the State or the equivalent law of another State.” In my view the 
reference to “entry and residence” must necessarily include removal. The whole point 
of having a marriage of convenience provision under Regulation 28 is to prevent one 
obtaining an advantage or entitlement, in the general immigration process, by reason 
of that fact. Accordingly, it seems to me that on any proper interpretation of the 
measure last mentioned, the Immigration Act 1999, or more accurately section 3 
thereof must be regarded as coming within its provisions. That Act clearly covers, 
inter alia, the entry and residence of persons like the First Appellant, who is not a 
Union citizen. Having been unsuccessful in his residence card application, he was then 
a person, as pointed out in the letter of the 20th March, 2017, who had no right to be 
in the State. That being the situation, the Minister was perfectly entitled to regulate 
and determine his status within this jurisdiction. Hence, the operation of section 3 of 
the 1999 Act. The previous finding was thus directly relevant to the matters which the 
Minister must consider under subs (6) of that section. Accordingly, lam satisfied that 
35
the Minister was entitled to carry into the immigration process the decision previously 
made by him under the 2015 Regulations." (Emphasis added)
68. Of course, this puts beyond doubt that the power under Rule 28( 1) to make a finding 
that a foreign national entered a marriage of convenience can be carried into a subsequent 
deportation process, but arguably it leaves unanswered two questions: (i) Can the power be 
exercised when a deportation process has not yet begun and there is no longer any live issue 
as to the right of residence under the Regulations because the person has become an Irish 
citizen?; (ii) Does the reference to “foreign national” in Regulation 28(6)(c) include a person 
who has become an Irish citizen?
69. The wording of Article 28(1) should also be closely noted. Essentially, that provides 
that the Minister, in making a ‘determination’ of any matter relevant to the Regulations, may 
‘disregard’ a marriage of convenience as a factor bearing upon that determination. If, as the 
Minister submits, the ‘determination’ in issue here was that the appellant’s marriage was 
one of convenience, then that would lead to the rather senseless proposition that ‘The 
Minister, in making a ‘determination’ that a marriage is one of convenience may ‘disregard’ 
a marriage of convenience as a factor bearing upon that determination.’ Logic and syntax 
militate against this interpretation of Article 28. Therefore, in my view, the entitlement of 
the Minister to do what she did in the present case, if it is to be found anywhere, is more 
likely to be found in Regulation 27.
The purpose and context of the Regulations
70. I also wish to turn to the purpose and context of the Regulations as a whole, a matter 
to which any exercise in interpretation must have regard, particularly having regard to recent 
36
caselaw of the Superior Courts including the comprehensive judgment of Murray J in 
Heather Hill. The Minister submits that an important part of the context is that it is a 
fundamental aspect of the EU citizenship regime that there should be a strong system of 
preventing, detecting and eradicating fraud and abuse of rights. She points out that this theme 
is repeatedly emphasised in the legal instruments of the EU and in the authorities of the 
CJEU.
71. It is beyond question that the prevention, detection and denunciation of fraud and 
abuse (including marriages of convenience) is of fundamental importance in the EU 
citizenship regime (and indeed the Irish immigration system as a whole) and I note the 
emphasis laid on this issue in certain Recitals and Article 35 of the Directive as well as the 
repeated statements of the CJEU on the topic. I have also considered the helpful information 
provided by the Minister’s deponent, Ms. Katherine Grace, who swore an affidavit in 
November 2022 in which she gave an indication of the scale of the problem of abuse and 
fraud in this context. She said that since 2015, the EU Treaty Rights Investigation Unit had 
commenced over 5,000 investigations and that this had led to revocations in 70% of cases. 
She also confirmed the unsurprising fact that it often takes some time for the information 
that a marriage is one of convenience to emerge, which means that inquiries and 
determinations often need to be retrospective.
72. That said, even accepting that prevention and detection of fraud is highly significant, 
a slightly different issue is whether this points to any particular interpretation of Regulation 
28(1). At the hearing of the appeal, there was some debate as to whether a finding such as 
that made by the Minister in this case might assist various other State authorities to whom it 
was communicated, who might then be in a position to take concrete action, such as by 
prosecuting a person for a criminal offence, or commencing a deportation process. It is also 
37
clear, of course, from M.K.F.S. that findings can be used by the same Minister in the 
deportation context albeit as one among other potentially relevant factors.
73. In this regard, a distinction might usefully be drawn between the Minister making a 
determination and the Minister simply passing on the information which led to the concerns 
or suspicions of fraud in the first place to other State authorities as appropriate. It is arguable 
that a determination as such is not necessary in order to provide assistance to the other State 
authorities (such as the Garda Siochana), and that it would be sufficient for that purpose for 
the Minister simply to pass on such information as she has, which would enable that body 
to carry out investigations prior to any decision as to whether or not to prosecute or take 
other appropriate action.
74. Less clear, however, is the position of the Minister in the context of any future 
revocation of citizenship process. It is true of course that as matters currently stand post­
Damache, no procedures for conducting an inquiry with a view to revoking citizenship have 
been introduced to replace those which were struck down as unconstitutional by the Supreme 
Court. However, if and when any such replacement (and constitutionally-compliant) 
procedures are introduced, there is nothing to stop the Minister from taking into account any 
existing determination by the Minister that the appellant had previously obtained a residence 
card under the Regulations on the basis of fraud or abuse of rights, specifically on the basis 
of a marriage of convenience and/or submission of false or misleading information. That 
much was made clear in M.F.K.S. What M.F.K.S. does not address is whether, if there is no 
such determination already in existence, the Minister may make such a determination in the 
future as part of the revocation process. Suppose the Court in the present case were to decide 
that the Minister did not have the power contended for by the State when it is not tethered 
or connected to any concrete power of refusal or revocation. Suppose, further, that in the 
38
future the Minister commences a revocation of citizenship process and wishes to investigate 
whether the appellant’s marriage had been one of convenience; might she not be met with 
the argument that she has no legal basis for such a finding since an investigation into whether 
the marriage was one of convenience was one that could only have taken place within the 
context of the Directive/Regulations? If this argument proved to be correct, one might end 
up with a situation where the Minister is precluded from making a determination under the 
Regulations that there was a marriage of convenience either during a revocation of 
citizenship process or separately (and prior) to it, simply because the person is outside the 
remit of the Regulations by virtue of becoming a citizen. This would certainly run counter 
to the broad purpose of preventing and detecting fraud and abuse of rights.
Habte and correcting the record as to questions of status
75. Another interesting dimension to the argument is provided by a relatively recent 
decision of this Court in Habte v Minister for Justice [2020] IECA 22, [2021] 3 IR 627, even 
though it did it not concern the Regulations. Ms Habte had obtained a certification of 
naturalisation and sought to correct the record as she had submitted an incorrect date of birth, 
thereby causing herself several practical difficulties. The Minister declined her request to do 
so and adopted a fixed policy approach, insisting that she could not amend the certificate of 
naturalisation, once issued, because the Act conferred no power upon her so to do. Ms. Habte 
challenged the Minister’s refusal to amend the certificate on the basis of a blanket policy. 
The legislation in question did not expressly confer upon the Minister an entitlement to 
amend a certificate of naturalisation. This Court (judgments delivered by Murray and Power 
JJ) concluded that the Minister did have such a power notwithstanding the fact that it was 
not expressly articulated in the legislation. The Court found that the appellant’s contention 
39
that the Minister was empowered to cancel a certificate and to issue a new one so as to 
correct an error on the record was well founded.
76. Central to the decision was a recognition that there was an implied constitutional 
obligation on the part of the State to accurately record and represent central aspects of 
personal identity, in that case the question of the applicant’s age. It is, at least, arguable that 
an individual’s marital status is also an aspect of identity which requires accurate 
recognition. Therefore, if the status of marriage was entered into for the sole purpose of 
obtaining an entitlement under the Directive or under any law concerning the residence of 
foreign nationals (including naturalisation), then it is arguable that there is an implied power 
on the part of the Minister to investigate and make findings regarding the true nature of the 
marriage, and correct the record if necessary. Similar reasoning might come into play to 
support an implied power on the part of the Minister under the Regulations with regard to 
correcting the record as to whether an individual was previously entitled to have a marriage 
recognised and rights of residence derived from it, even though he has ceased to benefit from 
any such right of residence by virtue of the acquisition of citizenship.
Provisional conclusion
77. Taking all of the above into account, I would be inclined towards the following 
conclusions: (i) that Regulation 28(1) does not include the power to make a determination 
of the kind in issue in the present case; (ii) that although there is no express power in 
Regulation 27 or elsewhere in the Regulations to make a determination of this kind, such a 
power might be implied into Regulation 27(2).
40
78. The key question then becomes the following one: Should the Court interpret the 
Regulations to include such an implicit power? Here it seems appropriate to return to the 
question of EU law, which was temporarily left to one side earlier in this judgment
79. I said at the outset of the discussion that the scope of the Directive under EU law is 
linked to the question of interpreting the Regulations. The two questions posed by me were 
intended to separate out the strands of analysis but they are ultimately interconnected, not 
least by reason of the doctrine of “indirect effect’ as described in decisions of the CJEU in 
cases such as Marleasing SA v La Commercial Internacional de Alimentacion SA (Case C- 
106/89, 13th November 1990) [1990] 1 ECR 4135, and Criminal Proceedings against 
Pupino (Case C-105/03, 16th June 2005) [2005] ECR 1-5285. This is the principle requiring 
an interpretation of domestic law to comply with EU law insofar as this is possible and 
without engaging in a "contra legem " interpretation. In circumstances where the Court is 
faced with the interpretation of the Regulations and the possibility of reading an implied 
power into Regulation 27, it seems to me that it is essential to have clarity on the question 
of the scope of EU law, and specifically whether the Directive applies to a citizen solely to 
the extent of authorising the State to investigate a historic marriage of convenience at a time 
when the now-citizen was obtaining a benefit (derived residence rights) under the Directive 
by virtue of his marriage to an EU spouse. It seems to me, although I say this provisionally 
only, that it would not be contra legem to interpret the Regulations to encompass the power 
contended for by the Minister. Thus, the answer to the question as to the scope of EU law is 
necessary for the determination of the case.
80. Having reached the conclusion that the scope of the Directive is not clear, and 
bearing in mind the provisions of Article 3(1) and 35 thereof, as where there is a doubt as to 
41
the proper interpretation of the Regulations by reason of the wording therein, I am of the 
view that a question should be referred to the CJEU on the scope of the Directive, the answer 
to which in turn would be helpful in interpreting the extent of the Ministerial powers under 
the Regulations which were intended to transpose that Directive.
81. In my view, the appropriate question to refer to the CJEU is as follows:
Whether Directive 2004/3 8/EC applies to a person who previously obtained 
the benefit of derived residence in a Member State by virtue of being a spouse 
of an EU national exercising Treaty rights but who has more recently become 
a citizen in the host State and is no longer the beneficiary of any benefit under 
the Directive, solely for the purpose of investigating and (if appropriate) 
making a determination or reaching a conclusion that he engaged in a fraud 
or abuse of rights and/or a marriage of convenience in the past in order to 
obtain a benefit under the Directive?
82. This is the question which the Court proposes to send but if either party wishes to 
take issue with it, the matter will be listed for a short hearing on Wednesday 26th June 2024 
at 2p.m. to address any outstanding issues.
83. As this judgment is being delivered electronically, I wish to record the agreement of 
my colleagues Power J. and Meenan J. with it.
42