The High Court has dismissed an application for judicial review brought by a Pakistani national who sought to compel the Minister for Justice to consider his case under the principles set out in Chenchooliah v. Minister for Justice and Equality. Mr Justice Mark Heslin held that the applicant was impermissibly attempting to dictate how and when the Minister should exercise her decision-making powers, contrary to established principles of judicial review and the separation of powers.
The applicant had entered the State in 2016 and subsequently applied for a residence card on the basis of marriage to a UK citizen. That application was refused on the grounds that his spouse had not demonstrated the exercise of EU Treaty rights as required under the Free Movement Regulations. Following unsuccessful reviews and applications, including to the Scheme for the Regularisation of Long-Term Undocumented Migrants, his solicitors sought temporary permission to remain, arguing that his situation fell within the Chenchooliah judgment. That decision confirmed that once rights under the Citizens’ Rights Directive are acquired, any restriction or removal must comply with the Directive’s procedural safeguards.
When pressed for updates, the Department indicated by email in September 2023 that the case would likely be dealt with under the Immigration Act 1999, but that no decision would be made until an appeal under the Regularisation Scheme was concluded. The applicant subsequently sought an order of mandamus compelling the Minister to process his case in line with Chenchooliah.
The High Court rejected this argument, holding that no removal decision had yet been taken and that Chenchooliah applies only once such a decision is made. Mr Justice Heslin stressed that judicial review concerns process rather than outcome, and that the court could not intervene on the basis of speculation about a possible future decision. He accepted the Minister’s submission that the application was, in essence, a pre-emptive challenge and reiterated that the court must presume the Minister will act lawfully.
The judge also drew parallels with A.B. v. Minister for Justice, noting that the applicant was effectively asking the court to direct the Minister’s exercise of executive power in advance, which would offend the constitutional separation of powers.
Concluding that the applicant had not demonstrated any entitlement to have his case considered under Chenchooliah rather than under the 1999 Act, the High Court dismissed the proceedings.