Ogidan v The Minister for Justice

APPROVED NO REDACTION NEEDED THE COURT OF APPEAL CIVIL Neutral Citation No.: [2026] IECA 32 Court of Appeal Record No.: 2025/184 High Court Record No.: 2023/54JR Whelan J. Hyland J. Collins J. BETWEEN/ BABATUNDE AMORUWA OGIDAN APPLICANT/ APPELLANT - AND - THE MINISTER FOR JUSTICE RESPONDENT/ RESPONDENT JUDGMENT of Ms. Justice Hyland delivered on the 13th day of March 2026 INTRODUCTION 1. This is an appeal from a decision of the High Court (O’Donnell J. [2025] IEHC 246), refusing to grant an Order of certiorari of a decision of the Minister for Justice (the “Minister”) of 27 October 2022 (the “Decision”) affirming the revocation of Mr. Ogidan’s (the “Appellant”) residence card as a family member of an EU national because of the submission of false and/or misleading information/documentation. I uphold this appeal on the basis that the Minister failed to consider relevant material and proceeded on incorrect assumptions when making the Decision, and that the trial judge erred in refusing to quash the Decision in those circumstances. 2. A question was raised early on at the appeal hearing as to whether the Appellant could challenge the Decision, given that he conceded that he was not entitled to a residence permit based on derived rights from his EU spouse, as she had left Ireland during the relevant period. However, the Appellant has explained that given the finding of abuse of rights, the Decision has serious implications for him and will potentially affect his application for a public service vehicle licence and/or his application for citizenship. In those circumstances I am satisfied that he has the requisite standing to maintain his appeal. FACTUAL BACKGROUND 3. The Appellant is a Nigerian national who arrived in Ireland without permission in 2007. On 3 January 2013, he married a British national who will be referred to as the “EU spouse”. On 15 January 2014, he was granted a five-year residence card on the basis of his marriage to an EU national and was accordingly exercising rights derived from the European Communities (Free Movement of Persons) Regulations 2015 (the “Regulations”) which transpose Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (the “Directive”). The right of a spouse of an EU national to reside in a Member State derives from the presence of the EU national in that Member State. -2- Here the Appellant’s right to reside in Ireland depended upon his EU spouse residing in Ireland. 4. On 6 November 2018, the Appellant’s solicitors wrote to the Department of Justice informing them that he was separating from his EU spouse. On 15 November 2018, he was asked to submit documents for the relevant period evidencing the residency of himself and his EU spouse in Ireland. On 29 December 2018 he sent in various documents. At some later unspecified point but prior to March 2019, he sent in the self-assessment document generated by the Revenue Commissioner for his EU spouse for the year ending 2017 in respect of her employment situation (referred to as the “2017 self-assessment”). There is no evidence that he submitted self- assessments for her for any other year at this point. 5. On 20 March 2019, the Appellant received a letter from the Department of Justice indicating that the documents provided in response to the letter of 15 November 2018 were false and misleading as to a material fact, and that he knowingly submitted this documentation to retain his right of residence which he would not otherwise enjoy. Reliance was placed upon Regulation 27(1) of the Regulations/Article 35 of the Directive. Regulation 27(1) provides in relevant part: 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 of fraud or abuse of rights … 6. The Minister sought representations on the proposed Decision from the Appellant. The Appellant sought an extension of time for same but that was refused so no representations were received. DECISION OF APRIL 2019 -3- 7. On 11 April 2019, a decision was made revoking the permission granted in 2014 under Regulation 27(1) and Article 35 of the Directive. Reference was made to documents submitted, including a TV licence bill, self-assessment form for the EU citizen spouse from the Revenue Commissioners dated 24 April 2018, PRTB letter, Electric Ireland utility bills, and a rent book. The letter referred to information received from the Department of Employment Affairs and Social Protection (“DEASP”) stating that the EU citizen last had made returns in the State in 2013, when she had 52 weeks self-employment with income of €15,227. It was noted that there were no returns or earnings for the years 2014 to the present or any claims or benefit history in the State and that it was not plausible she could have resided in the State without any source of income or State benefit. This in turn was stated to give rise to concerns as to the authenticity of the self-assessment form for 2017, as the information provided did not equate with that obtained from DEASP. 8. Separately, the Department of Justice noted that the divorce application submitted stated that the EU spouse would not have been resided in the State from at least July 2017, yet that change in circumstances was only notified by the Appellant in November 2018. It was indicated that, based on the above information, the Minister was of the opinion that the documentation provided to evidence the exercise of rights of residence of the Appellant’s spouse were false and misleading as to a material fact, that the documents were submitted to retain a right of residence which the Appellant would not otherwise enjoy and that this constituted a fraudulent act within the meaning of the Regulations/Directive. 9. On 24 April 2019, solicitors for the Appellant wrote seeking a review of the decision to revoke the permission and enclosing proof that the Appellant was living in Ireland until 2017, including self-assessments for the EU spouse for the years 2013, 2015, -4- 2016 and 2017 from the Revenue Commissioners, as well as a bank account statement of 18 December 2015 for the EU spouse’s account showing payments to the Revenue Commissioners on 27 November 2015. It was stated that the Appellant and his EU spouse lived together from 2013 to 2017 and would soon be divorced. DECISION UNDER REVIEW 10. On 27 October 2022, a Decision was made by the Minister in response to the application for a review. In summary, the Decision upheld the decision of April 2019 and concluded that the Appellant sought to rely on documentation that he knew to be false and/or misleading to maintain a derived right of free movement and residence and this was an abuse of rights under Article 27 of the Regulations. 11. Under Regulation 25, a review is a de novo decision and new material can be considered. It will be recalled that the Appellant submitted self-assessment returns for 2013-2017 (with the exception of 2014) post the 2019 Decision. There is no reference at all in the Decision to those returns. In my view, the Minister did not avert to that additional information in the review process, with important implications for this appeal. The Decision is in very similar terms to the April 2019 decision. The dispositive parts of the Decision are as follows: Information provided to the Minister by the Department of Employment Affairs and Social Protection indicates that the UK citizen in this case has not made any contributions in respect of employment or self-employment since 2013. She made 52S contributions as a self-employed person during that year, with an income of €15,227. However, she did not make any returns or contributions after that date, and she has never made any applications for State benefits. The deciding officer in this case noted that it was not plausible that the UK citizen could have resided in the State since 2014 without any source of income or without applying for any State benefits. The deciding officer noted, moreover, that you had submitted a document entitled “application for a divorce” dated 12/07/2018. This document stated that the UK citizen had been “habitually resident in England and Wales and had resided there for at least a year immediately prior to the presentation of the application”. As -5- such it is apparent that the UK citizen would have ceased to reside in this State from July 2017 at least. However, you did not inform the Minister of the change in your circumstances until November 2018. Having considered all of the above documentation, information, and submissions, the Minister is not satisfied that the UK citizen in this case has been living in Ireland in exercise of her Treaty Rights since 2014. It follows, therefore, that the documentation and/or information that you submitted as putative evidence of the UK citizen’s residence and exercise of rights in the State since that time was submitted with the intention of misleading the Minister into thinking that the UK citizen was living and working in Ireland when this was not the case. In particular, the Revenue self-assessment document that you submitted for 2017 does not appear to reflect a situation of genuine and effective employment or self-employment in the State. 12. The Minister concluded that there had been an abuse of rights under Regulation 27 and affirmed the April 2019 decision to revoke the residence card. DECISION OF HIGH COURT 13. The High Court refused the Appellant’s judicial review of the decision affirming the revocation of his residence card, noting that although the Appellant acknowledged that he no longer met the requirements to retain the card, he sought to challenge the Minister’s finding that he had submitted false or misleading information. 14. The trial judge concluded that the Decision provided adequate reasons, that the Appellant had been afforded an opportunity to respond to the concerns raised, and that the Minister’s reasoning was neither circular nor irrational. 15. The Appellant had maintained an argument that the Decision contained an erroneous conclusion that the 2017 self-assessment form itself was not genuine. The trial judge correctly rejected that argument, noting that the appropriate interpretation of the Decision was that the information contained within the self-assessment form did not reflect the true position. I explain below why I agree with that conclusion. 16. In respect of the conclusion in the Decision that the Appellant had submitted false and misleading information, the trial judge noted that the tax returns from 2014 onwards suggest that the EU spouse was not earning sufficient income to support -6- herself in the State and that the DEASP information showed that his former spouse had not applied for social protection, which reinforced the conclusion that she was not residing in the State (paragraph 56). At paragraph 57, he observed that the DEASP inquiries showed that that his former spouse had made no PRSI payments for 2017 and had made no payments since 2014, that the Minister was entitled to conclude that the lack of payment of PRSI, in combination with low income and no application for social protection, showed that the Appellant had not provided sufficient evidence that his former spouse was exercising her Treaty rights. 17. The trial judge also noted that the Appellant submitted documentation intending to prove residency in Ireland when he was aware through the divorce proceedings that his spouse was resident in the UK (paragraph 58). The trial judge concluded that the document submitted by the Appellant was inconsistent with the information provided by the DEASP and the divorce papers. The Court concluded that the conclusion flowed from factual findings about the sufficiency of the evidence submitted by the Appellant. On that basis, the High Court refused relief, concluding that the decision‑making process was lawful and that the Minister was entitled to make the findings reached on the evidence before her. ANALYSIS 18. Before considering the detail of the Decision, it is necessary to emphasise that it contains a finding of abuse of rights which has serious implications for the Appellant. Such a finding must be based upon a rigorous assessment and investigation and there must be a sound evidential basis for the actual fraud alleged (see Saneechur v Minister for Justice and Equality [2021] IEHC 35). EU law requires that fraud be established through both objective and subjective elements supported by a consistent -7- body of evidence (see Ömar Altun, Case C-359/16, ECLI:EU:C:2018:63). The decision of the trial judge must be evaluated through this prism. 19. I will first consider the point emphasised by counsel for the Appellant at the appeal hearing i.e. that the Minister disputed the authenticity of the 2017 self-assessment document submitted as not being a document from the Revenue Commissioners, that she ought to have contacted the Revenue Commissioners in this respect and that the failure to do so rendered the decision unlawful. The trial judge concluded that the contested paragraph in the Decision meant there was a concern that the information provided to Revenue forming the basis for the self-assessment document was incorrect. I entirely agree. The correct interpretation of the reference to the 2017 document was not that it was a fake but that the information in it could not have been true because the Appellant had neither been working nor self-employed since 2014. The Decision notes that the self-assessment document “does not appear to reflect a situation of genuine and effective employment or self-employment in the State”. The context strongly suggests not that it was being asserted that the actual document was a forgery but rather that the information in it was incorrect. 20. Moreover, even if I had agreed with the Appellant’s interpretation of the sentence, I have grave reservations about his argument that there would have been an obligation on the Minister to check and make her own enquiries. However, it is not necessary to consider this issue further since it does not require to be decided in these proceedings. 21. Turning now to the substance of the appeal, it is necessary to consider the relevance of the fact that the legitimacy of the information in the 2017 self-assessment document was evaluated in the context of findings that no returns or contributions had been made after 2013 and that therefore the EU spouse had no source of income. -8- The Minister maintains that there is no basis for the Appellant’s claim that the Minister ignored the 2015 and 2016 tax returns, noting that the decision expressly stated that all documentation was considered. I cannot agree with this submission. The Decision summarises in the seventh paragraph the information submitted following the Minister’s letter of 15 November 2018 and refers explicitly to the 2017 self-assessment document provided and in the ninth paragraph to the divorce document submitted. There is no reference to any other documentation. The tenth paragraph states that “Having considered all of the above documentation, information and submissions”, the Minister is not satisfied that the UK citizen has been living in Ireland since 2014. It is true that the twelfth paragraph refers to a consideration of all the information, documentation and submission on “all of your files”. But given there is no reference to the other self-assessments submitted, and an inaccurate statement that no returns were made after 2013, I cannot accept the Minister’s submission in this respect. In any case, that argument does not avail her, since if those returns were considered, they were entirely ignored. 22. I pause at this point to consider the self-assessment documents submitted by the Appellant post the 2019 decision given their importance in this case. All the self- assessment documents received by the Minister issued from the Revenue Commissioners and acknowledged receipt of the income tax return and self- assessment provided by the EU spouse for the relevant year. The 2014 self- assessment i.e. for the year ending 2013, identified the amount of income/profit as €15,227, with €609.08 identified for PRSI and €408.36 identified for USC. No 2015 self-assessment is exhibited. The 2016 self-assessment identified the amount of income/profit being €8,654, with €500 chargeable for PRSI and €0 for USC. The 2017 self-assessment document identified the amount of income/profit as €9,385 and -9- PRSI of €500 and €0 for USC. The 2018 self-assessment document identified the amount of income/profit as €10,962, with PRSI of €500 and €0 for USC. 23. Each of the self-assessment documents contained details of how to make a payment of the monies owing. It goes without saying that the submission of a tax return is not the same as payment of the tax due and owing under the self-assessment. Thus, showing that a person has not paid the tax or contribution due cannot be used as the basis of a conclusion that the person did not earn any money during the relevant tax year or that they did not submit a return. 24. In oral submissions, the Minister contended that the mere act of generating a self- assessment does not constitute the filing of a “return” for the purposes of the Tax Consolidation Act 1997, as amended. It was submitted that the Decision correctly recorded that no returns had been filed and that the absence of returns involves more than the Appellant simply producing or generating a self-assessment calculation. The Minister further indicates that the DEASP has access to completed Revenue returns, and that in this case no such completed return was visible on the system. The Minister therefore asserts that the available records disclosed no evidence of any completed or filed Revenue return, which supports the conclusion reached in the decision. 25. During the hearing, counsel for the Minister helpfully provided a copy of the Finance Act 2012. Section 959R provides that every return delivered under Chapter 3 shall include a self-assessment by the chargeable person to whom the return relates. Subsection (2) provides a self-assessment shall be made in and as part of the return and shall include such details as the Revenue Commissioners may require. Under s. 959S there is an exemption whereby a person is not required to provide a return if the return is delivered on or before a particular date. In this situation, the Revenue Officer shall make the self-assessment on behalf of the chargeable person. - 10 - 26. Although there does not appear to be a definition of “return” under the Act, contrary to the submissions of the Minister, in my view s. 959R and 959S of the Act make it clear that reference to a return is a reference to the annual mandatory return made by a person subject to income tax and that a return includes the self-assessment required as part of the return unless a person comes within the terms of an exemption. 27. Therefore, returning to the Decision, in concluding that the EU spouse made no returns after 2013, the decision maker was incorrect. The solicitors for the Appellant had submitted the self-assessment documents received from Revenue for the years 2014-2017. Those documents are only generated where a person has made a return, as is clear from the face of the self-assessment document. 28. In respect of contributions, I understand that to mean the payment of a PRSI or USC contribution. One can see from the summary above of the self-assessment documents that contributions of €500 were payable for 2015, 2016 and 2017. A failure to make contributions does not necessarily mean that that no income had been earned: income might have been earned, but no contribution paid. Yet, the decision maker appeared to have drawn an inference that because no contributions were paid, no income was earned and used that to ground in part the conclusion that the 2017 self-assessment document was fraudulent. 29. Therefore, the Minister arrived at a conclusion in respect of the 2017 self-assessment document i.e. that it did not reflect a situation of genuine employment/self- employment, on the basis of two distinct factual errors: that no returns had been submitted after the 2013 return, and that the lack of contributions for those years meant that no income was earned and therefore the EU spouse was not working in the State. These findings were critical to the Minister’s conclusion that the EU spouse had not been living in Ireland in exercise of her Treaty rights after 2014. This in turn - 11 - led to the conclusion that the documents provided, including the 2017 self- assessment, were submitted with the aim of misleading the Minister into thinking the EU spouse was living and working in Ireland when this was not in fact the case. 30. Of course, an error of fact is not necessarily fatal to a decision in the context of judicial review, since judicial review is largely concerned with the decision-making process rather than the substantive conclusions. Whether an error undermines the decision to such an extent that its validity is fatally undermined will depend on the materiality and/or seriousness of the error. In this case, the impugned findings were not the only basis for the Minister’s decision. She also referred to the lack of applications by the EU spouse for State benefits. But in this case, I consider that the finding of no returns and the conclusion that this meant there was no source of income were core building blocks of the decision that the 2017 self-assessment return was submitted to mislead. 31. Had the Minister known that returns had been made for the previous years and understood that a lack of contributions did not necessarily mean a lack of income, her view of the 2017 self-assessment might well have been very different. Given the seriousness of a finding of fraud, it is necessary that it be based on accurate facts and relevant factors are considered. This was not the case here. 32. The trial judge correctly concluded that the Minister was not arguing that the 2017 document was a fake. He referred to the self-assessment documents, noting that the tax returns from 2014 onwards suggest that the EU spouse was not earning sufficient income to support herself in the State and that the DEASP information showed that no social protection was applied for by the EU spouse which reinforced the conclusion that she was not residing in the State (paragraph 56). But he did not avert to the fact that the Decision proceeded on the assumption that no returns had been - 12 - filed, entirely ignoring the returns made post 2013. At paragraph 57, he observed that the DEASP inquiries showed that that his former spouse did not make any PRSI payments for 2017 and no payments had been made since 2014, that the Minister was entitled to conclude that the lack of payment of PRSI, in combination with low income, and no application for social protection showed that the Appellant had not provided sufficient evidence that his former spouse was exercising her Treaty rights If the Decision had stopped at this point, the analysis of the trial judge would be very difficult to disagree with. 33. But the Decision made findings of fraud against the Appellant. That necessitated a higher standard of review of the Decision. One problem with the trial judge’s analysis is that it treats the lack of payment of PRSI as a standalone factor: however, as I have sought to demonstrate above, the Minister treated the lack of PRSI payments as meaning that no income had been earned, a false equation for the reasons I have identified. Nor did the Decision refer to “low income” – instead it referred to no income based on the inaccuracies identified above. 34. In those circumstances, I take a different view to that of the trial judge in respect of the interpretation of the Decision and I agree with the Appellant’s submission that the evidence was insufficient to support the conclusion drawn, particularly in the context of a finding of abuse of rights/fraud. 35. The Appellant did not plead a breach of fair procedures on the ground he ought to have been given the DEASP information to allow him to reply to it. But it is hard to avoid the conclusion that the difficulties caused in this case might have been avoided had the material relied upon by the Minister from DEASP been put to the Appellant and the concerns identified (see Khan v. Minister for Justice [2025] IECA 230, where it was observed that if a new piece of evidence, unknown to the prospective recipient - 13 - of a decision, is obtained from a third party that is intended to be relied upon by the decision maker, fairness may require that the evidence is disclosed to the recipient and an opportunity given to them to respond to it.) Relevance of information relating to divorce 36. Finally, the Minister argued that, irrespective of the errors identified above, there is a sufficient basis for the Decision given the lateness of the notification of the date of separation by the Appellant. It is undisputed that the Appellant only notified the Department in November 2018 that he was separating from his spouse, even though she was no longer resident in the State after July 2017. But the height of the Minister’s complaint is that the Appellant delayed in notifying her that the EU spouse had left Ireland. That fact alone does not support the finding that the Appellant submitted documentation intended to mislead, including the 2017 self-assessment document, particularly where the entire inquiry into the grant of residency came about because of an unsolicited letter from the Appellant’s solicitors in November 2018 indicating that he was separating from his spouse. 37. If the Decision is shorn of its conclusions that the 2017 self-assessment document was submitted to mislead, the findings of the disclosure of the date of departure of the EU spouse would not, contrary to the submissions of the Minister, be sufficient to ground the findings of abuse of process. CONCLUSION 38. In summary, I cannot agree with the conclusion of the trial judge that the Minister’s decision was made on a sufficiently solid factual basis or that the reasons offered were rational in circumstances where two fundamental errors underpinned the finding of abuse of rights/fraud. For those reasons, I will uphold the appeal, quash the Decision of 27 October 2022 and remit the matter back to the Minister. - 14 - 39. In the light of the appellant’s success, he is presumptively entitled to his costs. If the Minister wishes to argue for a different result, he should provide written submissions within 10 days of the date of this judgment, with any reply to be lodged by the Appellant within a further 10 days. Since this judgment is being delivered remotely, Whelan and Collins JJ. have authorised me to indicate their agreement with it. - 15 -