2026 IECA 82

AN CHÚIRT ACHOMHAIRC THE COURT OF APPEAL APPROVED – NO REDACTION NEEDED Court of Appeal Record Number: 2025 298 High Court Record Number: 2024 405 JR Neutral Citation Number: [2026] IECA 82 Binchy J. Pilkington J. Collins J. BETWEEN/ VIOLET MATEO APPLICANT/APPELLANT - AND THE MINISTER FOR JUSTICE RESPONDENT JUDGMENT of Mr. Justice Anthony M. Collins delivered on the 12th day of May 2026 -1- I.

1. Introduction This is an appeal against the High Court judgment (Bradley J. [2025] IEHC 574), delivered on 21 October 2025, and consequential order of 28 October 2025, whereby it declined to make an order of certiorari to quash the Minister for Justice’s (‘the respondent’) decision of 1 December 2023 to refuse Ms. Violet Mateo’s (‘the appellant’) application under the respondent’s Scheme to Regularise Long-Term Undocumented Migrants in Ireland (‘the Scheme’) and to remit the matter to the respondent to be determined in accordance with law. II.
2. The Scheme In her judgment in Bode (a minor) v Minister for Justice, Equality & Law Reform [2008] 3 I.R. 663 at 689 - 691, Denham J. (nem. diss.) observed that the State has the power to control the entry, residency, and exit of foreign nationals, which power the respondent may exercise on its behalf. The State may decide that the common good is served by facilitating residence by a category of third-country nationals on its territory. For that purpose, it may establish an administrative scheme to identify persons who satisfy the criteria the respondent chooses to apply. The respondent is free to choose those criteria and the means by which they criteria may be met. The respondent is under a duty to consider each application and to decide if it meets the applicable criteria. Unsuccessful applicants are therefore in no worse a position than they had been in prior to the submission of an application. In A.K.R. v Minister for Justice & Equality [2022] IEHC 325, Bolger J. well describes a similar administrative scheme at para. 17 of her judgment: -2- This is an administrative scheme pursuant to which the respondent decided to confer a benefit on certain undocumented migrants who would not otherwise have had the right to apply for residency. The Scheme does not engage any constitutional, convention or EU fundamental rights on an applicant. This means that the respondent has more scope to determine what she will or will not require from an applicant. In effect, it is the respondent’s scheme and it is up to her to determine how an applicant will be deemed to qualify, subject of course to the respondent acting lawfully in making that determination.
3. In a “Policy Paper on the Scheme to Regularise Long-Term Undocumented Migrants in Ireland” (‘the Policy Paper’) published on 13 January 2022, the respondent, in the exercise of her executive powers, announced the introduction of a timelimited scheme to provide residence permission to persons who had been living in the State for a long period without permission. So far as is relevant to these proceedings, applicants were required to have resided in the State without a valid residence permission continuously for a minimum of four years immediately prior to 31 January 2022 and to have continued to do so at the date they submitted an application. The Scheme was open for applications between 31 January 2022 and 31 July
5. Section 6 of the Policy Paper is headed up “Required Documentation to Apply for this Scheme”. It states that applicants were required to provide evidence of their identity and of their residency in the State for the four years immediately prior to 31 January
6. Proof of identity was to be furnished by submitting one or more identity documents and other supporting documents from a list of those “which will be accepted.” The proofs of -3- residence the respondent required are central to the issues in dispute in these proceedings. The Policy Paper stated that: Below is the list of residency documents, which will be accepted. An applicant is required to submit documentation for each of the previous three or four years (…) that each applicant was living undocumented in the State. … Previous Irish Residence Permit (IRP) card or GNIB Card Previous permission letter issued by the Immigration Service (formerly Irish Naturalisation and Immigration Service (INIS) Social Protection Statements, e.g. evidence of receiving the PUP payment, children’s allowance, etc. Utility bills (i.e. from electricity/phone/gas/cable television/broadband provider/mobile phone bills) Registration with the Residential Tenancies Board Employment Detail Summary/P60/P45/P21s or equivalent Marriage/civil partnership certificates relating to a marriage or civil partnership entered into in Ireland Evidence that the applicant sat the Junior Certificate and/or Leaving Certificate exams in Ireland Evidence that the applicant attended University or Third level college in Ireland A letter from a school principal in Ireland, confirming child’s attendance at a school if it was in the past three years Letter from doctor/hospital in Ireland Vaccination passport for children, or COVID-19 vaccination card issued in Ireland Statements or other correspondence from bank/building society/credit union including e-Statements with activity in the country (Statements from store cards/catalogue companies are not acceptable) Proof of money transfers between the applicant and a third party, carried out at a money transfer facility in the State e.g. Western union Correspondence from an insurance company regarding an active policy (home or car insurance policy only). A document that covers more than one person from the family for the required time period will be accepted, e.g. a letter from -4- a school principal which lists all children who attend or a joint bank statement in both applicants’ names. If an applicant has one document that covers more than one year of undocumented residence in the State, e.g. letter from school principal, this will be accepted. Other official correspondence from an Irish state agency e.g. Government departments; HSE; Register of Electors/polling card; CAO; An Garda Síochána; Public / Private hospitals; Residential Tenancies Board (RTB); Secondary school /training agency; NCT Reports or reminders; An Post; TV Licence; National Government Health Screening Programme(s); The above is not an exhaustive list and consideration may be given by the Immigration Service to accepting other forms of verifiable evidence, where appropriate. Note: Letters from friends/neighbours will not be accepted as the only proof of residency in the State. These documents along with other unverifiable material may be submitted as supporting documentation only. As part of the application process, Immigration Service Delivery (ISD) must be able to confirm the identification of all the applicants, who submit an application.
7. Section 7.1 of the Policy Paper represented that an application may be refused where an applicant failed to establish his or her eligibility under the terms and conditions of the Scheme. It stated that reasons for a refusal would be given, which included an applicant’s failure to meet the prior undocumented residence requirement or where he or she provided inadequate or -5- inconsistent information or documentation. An unsuccessful applicant had a right to appeal. Appeals would be considered and determined by a different officer of the respondent’s department, with the power to confirm the original decision or to grant access to the Scheme. Applications and appeals were to be considered within the parameters of the Scheme. III.
8. Factual Background The appellant avers she is a Zimbabwean national and the mother of three adult children who reside in that country. Despite the absence of any permission to reside in the State, she arrived in Ireland in 2010 for the purpose of working. She states that she was in “an exploitative job” for some eighteen months after her arrival in Ireland, which she quit with the assistance of a priest. Since then, she affirms that she has lived with a number of families, employed as a domestic worker receiving remuneration in kind and in cash.
9. By letter dated 30 June 2022, the appellant made an application under the Scheme through her solicitors. That application was supported by 24 documents or categories of documents. Four of these concerned her identity, which is not at issue in these proceedings. Nine categories consisted of character references from named individuals who claim to have met, supported and attended church services and events with the appellant at various dates between 2012 and
10. These were complemented by proof of the addresses of certain of those persons and various photographs of the appellant in their presence purporting to have been taken between 2016 and
11. There were -6- four categories of receipts of money transfers to members of the appellant’s family who live in Zimbabwe. These appear to show that S.M., who claims to have known the appellant since May 2013, transferred money on three occasions in 2018, twice in 2019, once in 2020 and once in 2021 to the appellant’s son-in-law, and once in 2015, once in 2016 and on two occasions in 2018 to the appellant’s son. There were also two receipts in the appellant’s name dated 3 April 2017 and 23 March 2022 evidencing transfers to her son-in-law and daughter-in-law respectively. These categories of documents were completed by an invoice/receipt in the appellant’s name for the purchase of a mobile phone in May 2014, a Facebook post in February 2017, a photograph taken in 2018, a church donation receipt for 2018, two stamped envelopes addressed to the appellant in 2021 and 2022 and three train tickets bearing the appellant’s name for travel in the State on various dates in May
13. By letter of 7 March 2023, the respondent acknowledged receipt of the appellant’s application. It stated that at least one document for each year must be submitted as evidence of continuous residence in the State during the relevant period and referred the appellant to a link to section 6 of the Policy Paper. The letter concluded that, after a review of the application, the evidence submitted was insufficient. It requested that a full copy of the appellant’s passport and proof of residency for 2018, 2019, 2020 and 2021 be provided within 15 working days.
14. The appellant’s solicitors responded by letter of 10 March
15. This enclosed another copy of her passport, confirmed that -7- the appellant had submitted all of the documents in her possession as evidence of proof of residence and represented that she was unable to submit any other proof of that nature. By letter dated 16 March 2023, the respondent replied that the evidence submitted on the appellant’s behalf was insufficient. It requested proof of residency for 2018, 2019, 2020 and 2021, adding that “At this time, please ask your client to provide anything they feel will support their application for these years. Please note that this is your final opportunity to provide the necessary documentation. If you fail to respond to this final request within 15 working days, then your application will be decided on the basis of the information and documentation provided, which may result in a refusal.” (emphasis in the original).
16. By letter dated 27 March 2023, the respondent informed the appellant of the refusal of her application. The reasons given for that refusal were that the appellant had not provided satisfactory documentary evidence to prove she had been living in the State continuously for the required period under the Scheme eligibility requirements, particularly those described in section 6 of the Policy Paper, notwithstanding the opportunities afforded to her on 2 February and 15 March 2023 to furnish additional residency documents. The letter advised that the appellant could request a review of that decision. A review was duly requested, and in support thereof an affidavit sworn by A.J. that attested to her having known the appellant since 2017 was produced.
17. By letter dated 1 December 2023, the respondent, having considered all of the material submitted on the appellant’s behalf, -8- upheld the refusal decision of 26 April 2023 on the grounds that the appellant had not provided satisfactory documentary evidence to prove she had been living in the State continuously for the required period under the Scheme’s eligibility requirements, notably those in section 6 of the Policy Paper. The initial decisionmaker had correctly interpreted the criteria in the Policy Paper.
18. A document entitled “Appeal Consideration” was appended to the letter of 1 December
19. That document represented that the respondent had considered all of the information and documentation concerning the appellant. It set out section 6 of the Policy Paper in full. Under the heading “Summation”, the following appears: The Appellants residence in the state between 2010 and 31 January 2018 was not taken into account in the original decision, and is not being taken into account in this appeal decision. Time spent in the State, whether as a documented or undocumented person, prior to 31 January 2018, is irrelevant for the purposes of this particular scheme. The Appellant has failed to produce satisfactory evidence that she was resident, either documented or undocumented during the qualifying period of the scheme i.e. 31 January 2018 up to the date of applying for the scheme on the 6 July 2022 and continuing to do so. Her solicitor has stated that she has three children in Zimbabwe, whom she tries to support, with the little income she gets from her informal jobs, and with the help of friends. However, she has submitted no evidence of having made Western Union or alternative financial transfers from the State to her children, one of the accepted proofs of residence. Affidavits can support an application but are not acceptable proofs of residence in of themselves. I therefore find that she has not provided satisfactory evidence that she has resided in the State for the required period. -9- I am further satisfied that the deciding officer fully considered the facts and circumstances of the Appellant’s original application and applied the criteria of the Scheme correctly and fairly. I affirm the original decision of 26 April 2023 and refuse the appeal. (emphasis in the original)
20. By way of response, on 13 February 2024, the appellant’s solicitors requested that the respondent withdraw her decision within 14 days. It represented that the finding that proof of residence from 2010 to 2018 was irrelevant went too far since evidence tending to show that the appellant had resided in the State during that period made it more likely that she had resided from 2018 to
21. Given the nature and aims of the Scheme, it was submitted that the respondent’s application of a strict approach to the requirement for documentary proof of residence was irrational and unreasonable and that the material the appellant had supplied had been unfairly discounted.
22. By letter of 4 March 2024, the respondent advised that applicants were required to provide evidence of residence in the State in order to meet the Scheme’s documentary requirements, which were not onerous. The appellant had submitted no evidence of having made Western Union or alternative financial transfers from the State to her children, one of the accepted proofs of residence. The letter represented that the Scheme had been set up by executive decision of the Government, that it was for the respondent to determine the qualifying criteria therefor and that she was entitled to apply those criteria when she assessed applications thereunder. The respondent was obliged to consider - 10 - the application to see whether it met the criteria under the Scheme. That did not preclude her from exercising her discretion in any particular case. The appellant could always request permission to remain in the State outside of the Scheme. IV. Judicial Review Proceedings
23. By Order of 13 May 2024, the High Court (Hyland J.) granted the appellant leave to seek the reliefs described at para. 1, above, by reference to the Statement of Grounds filed on her behalf. On 2 December 2024, the respondent filed a Statement of Opposition that made no admission in respect of the facts and matters set out in the Statement of Grounds and opposed the grant of the reliefs sought.
24. On a consideration of the nature and terms of the Scheme, the correspondence exchanged between the parties and some of the material (notably the evidence of money transfers for the benefit of the appellant’s children) that had been before the respondent, the High Court considered that she had been entitled to come to the view that the appellant had produced insufficient evidence of her continuous residency in the State for each of four years immediately prior to the opening of the Scheme.
25. Part III of the appellant’s written submissions lodged in the Office on 19 February 2026 identify four issues as central to the determination of this appeal, with which the respondent joins issue. The first is whether the decision of 1 December 2023 was vitiated by the exclusion of all evidence of the appellant’s residence in the State prior to
26. The second is whether the - 11 - respondent’s requirement of documentary proof of residence was irrational and unreasonable in the light of the nature and aims of the Scheme. The third is whether the respondent acted unreasonably and irrationally in failing to consider or to give any weight to the third-party affidavit and letter evidence that the appellant had submitted. The fourth is whether the respondent’s finding that the appellant had submitted “no evidence” of her having made financial transfers for the benefit of her children amounted to a fundamental error of fact that vitiated the decision of 1 December
28. These four issues are considered seriatim.
29. As for the first issue, the summation in the Appeal Consideration set out at para. 12, above, contains part of the reasons for the decision of 1 December
30. It represents that such evidence as there was of the appellant’s residence in the State between 2010 and 31 January 2018 had not been taken into account in the process that led to the refusal of the appellant’s application since that evidence was irrelevant for the purposes of the Scheme. It is submitted on the appellant’s behalf that the respondent could not treat material that purported to show that she had been resident in the State between 2010 and 2018 as irrelevant to establishing her residence in the State between 2018 and 2022 since as a matter of logic the former was relevant to, if not corroborative of, the latter.
31. That argument might have some weight if the consideration of applications under the Scheme imposed an obligation on the respondent to establish, on the basis of any form of evidence, that - 12 - the appellant had, on the balance of probabilities, been resident in the State between 31 January 2018 and the date on which she submitted her application. That argument is confronted with the insuperable obstacle that the Scheme sets out, in terms, the proofs which the respondent was prepared to accept for the purpose of establishing the appellant’s residence in the State throughout the relevant period. As Bolger J. observed at para. 24 of her judgment in A.K.R. v Minister for Justice & Equality, the documentation the applicant in that case had furnished might have been capable of proving his continued residence in the State, but it suffered from the fatal deficiency that it did not satisfy the respondent’s requirement as to the documentation accepted for that purpose. The appellant is in an analogous position.
32. The respondent introduced a Scheme that contains section 6, reproduced in relevant part at para. 4, above. That section 6 represents that the list of documents therein is not exhaustive and that consideration may be given to accepting what is described as “other forms of verifiable evidence” does not in terms purport to impose any obligation on the respondent to accept, let alone consider, any other form of evidence. The caselaw set out at para. 2, above, establishes that the respondent is entitled to operate ex gratia schemes that facilitate residence by third-country nationals in the State. For that purpose, the respondent may lawfully adopt whatever criteria he or she chooses, including the type of evidence that s/he is prepared to accept to prove that those requirements have been met, not limited to the duration of the appellant’s residence in the State deemed relevant to the Scheme. That caselaw is so well established as to indicate that any challenge to - 13 - the validity of the decision of 1 December 2023 on the grounds that the respondent was not entitled to have made a scheme in those terms would be unlikely to succeed. The appellant has, understandably, not sought to advance that case.
33. The second argument, that the respondent’s requirement of documentary proof of residence was irrational and unreasonable in the light of the Scheme’s nature and aims, encounters the same immovable barrier as the first: the caselaw establishes that the respondent is sovereign as to the choice of the nature and the aims of any ex gratia scheme that the State may wish to establish with a view to affording third-country nationals a right to reside on its territory. In the light of that caselaw, it is not open to the appellant to invite this Court to direct the respondent as to the nature or content of such schemes. As in A.K.R. v Minister for Justice & Equality (see para. 16 of the judgment of Bolger J.), the appellant’s challenge to the respondent’s requirements as to proof of residence amounts to asking the Court to engage with what the Scheme ought to have been, rather than what it is, a task that it has no mandate to carry out.
34. The third submission, that the respondent acted unreasonably and irrationally in failing to consider or to give any weight to the third-party affidavit and letter evidence that the appellant submitted in support of her application, perishes on the same hill as the first and second arguments and for the same reason. In that specific context, the Scheme could not be clearer where it invites the reader to note that letters from friends or neighbours “will not be accepted as the only proof of residency in the State. These - 14 - documents along with other unverifiable material may be submitted as supporting documentation only.” It is thus tolerably clear that the respondent will take such documentation into consideration only where an applicant has provided material that consists of or is akin to the “residency documents” stipulated in section 6 of the Policy Paper.
35. At the hearing, a debate arose as to the content of the references to verifiable evidence and unverifiable material in section 6 of the Policy Paper. Since the word verifiable may be equated to provable or demonstrable, it was contended on the appellant’s behalf that the respondent could have verified the letters and affidavits she had adduced by the simple expedient of contacting their authors. That material thus constituted verifiable evidence for the purposes of the Scheme that the respondent was accordingly required to take account.
36. That submission is neither supported by the nature of the Scheme nor by the specific context in which the word verifiable appears in the Policy Paper. The Scheme appears to be designed to operate exclusively by means of an examination of such approved documents as applicants may submit. There is no provision to interview applicants as to their compliance with the terms of the Scheme. Nor does the Scheme appear to envisage any mechanism whereby the respondent might engage with applicants to investigate the content or the truth of the material they submitted. The Scheme does not impose any requirement on the respondent to investigate the veracity of, or to query, such documentation. The documents adumbrated in section 6 of the - 15 - Policy Paper share the characteristic of being generated by individuals and bodies who could be said, in a broad sense, to exercise authority over, or to provide services to, applicants in such a manner as would prevent the latter from exercising any authorship or control over the content of those documents. Should she wish to do so, the respondent may verify those documents by contacting the individuals or bodies that issued them, which exercise can be reduced to writing in most, if not all, cases. The nature of the Scheme and the established caselaw to which reference has already been made allows the respondent to accept only those documents as may be verified through formal written contact with such individuals and/or bodies.
37. The context in which the words verifiable and unverifiable appear in section 6 of the Policy Paper supports that interpretation of the terms of the Scheme. Applying the ejusdem generis maxim, acceptance of the “other forms of verifiable evidence” that appears at the end of a list of documents that share the characteristics of the documents described in section 6 of the Policy Paper, refers to documents of a character similar to those contained in that list. That interpretation is also consonant with the description of “unverifiable material” in the note that immediately follows in section 6 of the Policy Paper which includes “letters from friends/neighbours”. Unverifiable material thus consists of material that the respondent cannot readily verify in the same manner as the “verifiable evidence” section 6 of the Policy Paper describes. - 16 -
38. The appellant’s fourth and final submission is that the finding in the decision of 1 December 2023 that the appellant had submitted “no evidence” of having made financial transfers for the benefit of her children was a fundamental error of fact that undermined its validity. Counsel for the appellant accepted that, for certiorari to issue, the impugned decision must contain a material or fundamental error that goes to its root.
39. For that plea to succeed, the appellant must first establish the existence of an error in the decision under challenge. Amongst the stated categories of residency documents the respondent accepts as proof of residence in the State during the relevant period is “proof of money transfers between the applicant and a third party, carried out at a money transfer facility in the State” (my emphasis). Paragraphs 59 to 76 of the judgment under appeal examine in considerable detail all of the material the appellant caused to have placed before the respondent by way of proof of the money transfers to Zimbabwe for the benefit of her children that she claims to have caused to have been made. Having done so, at para. 77, the learned trial judge concluded that: In this case, the Applicant’s name and address were not on the copy transfers furnished and relied upon by the Applicant for each of the years, 2018, 2019, 2020, 2021 notwithstanding that it was the Applicant who chose the category of criteria which required “proof of money transfers between the applicant and a third party, carried out at a money transfer facility in the State e.g. Western union” as the method to prove her continuous residency in the State for each of the four years immediately prior to the opening of the scheme in 2018, 2019, 2020 and
40. None of the examples of what were described, on behalf of the Applicant as corroborative letters, or the documents submitted between 2010 to 2018, were of assistance to the Applicant in meeting the failure to meet the stated criteria. - 17 -
41. That paragraph of the judgment under appeal contains two findings. The documents the appellant placed before the respondent did not constitute proof of money transfers between her and a third party, carried out at a money transfer facility in the State. Absent any other of the proofs that section 6 of the Policy Paper required the appellant to submit, the “unverifiable material” she submitted was incapable of supporting any evidence that the respondent was prepared to receive under the terms of the Scheme. Since the supporting documentation the appellant submitted by way of letters and affidavits could not cure that deficiency in the proofs that the Scheme demanded of her it was open to the respondent to conclude that there was no evidence of the appellant having made those financial transfers to her children.
42. Whilst it is well established that this Court is in as good a position as the High Court to assess material placed before it on affidavit (see Northern Bank Finance Corporation Ltd. v. Charlton [1979] I.R. 149 at 180 per O’Higgins C.J., at 192-3 per Henchy J., cited with approval in A.K. v. U.S. [2022] IECA 65 at para. 51 by Murray J.) the appellant does not contest the veracity of these two findings. It is instead submitted on her behalf that the High Court erred in two ways.
43. First, it is alleged the High Court did not decide the question whether the respondent’s finding that no evidence had been submitted amounted to a fundamental error of fact. I read paras. 59 to 77 of the judgment under appeal as a finding to the effect that the decision contains no error of fact, whether fundamental or - 18 - otherwise, which determination is dispositive of the issue. In so far as the appellant contends that the supporting documentation by way of letters and affidavits constitutes evidence, it is clear from the decision that the respondent did not consider that material as constituting residency documents that she was prepared to accept as evidence for the purposes of the Scheme. The decision of 1 December 2023 is to be read in the context of the operation of the Scheme and not as a description of evidence in a general sense.
44. Second, and in the alternative, the appellant contends that, by reaching its own conclusions on the material before the respondent, the High Court substituted its assessment of that evidence for the respondent’s, thereby impermissibly stepping into the latter’s shoes and introducing a new basis for the refusal of the decision that it was clearly not entitled to do.
45. A plea that a decision contains an error of fact that is fundamental to its validity may be rejected on at least one of two grounds: by a finding that the decision did not in fact contain the alleged flaw or that any flaw identified is not fundamental to the decision’s validity. Having raised the issue of the existence of a flaw of a fundamental character in the decision of 1 December 2023, the appellant cannot then criticise the High Court for exercising its jurisdiction to find facts in order to determine that issue by an examination of the materials that were before it. V. Conclusion
46. For the reasons set out at Part IV, above, I would dismiss this appeal and affirm the judgment and order of the High Court. - 19 -
47. The default position under s. 169