Ahmed v Minister for Justice, Arshad v Minister for Justice

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 04 July 2024
• Neutral Citation: [2024] IEHC 412
• Docket Number: [Record No.: 2023 / 159JR]

Between:

Israr Ahmed

Applicant

and

The Minister for Justice

Respondent

Between:

Nazneen Arshad

Applicant

and

The Minister for Justice

Respondent

[2024] IEHC 412

[Record No.: 2023 / 159JR]

[Record No.: 2023 / 545 JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT OF Ms. Justice Siobhán Phelan, delivered on the 4th day of July, 2024.

INTRODUCTION

1 . These two cases arise from the refusal of applications for certificates of naturalisation under s. 15 of the Irish Naturalisation and Citizenship Act, 1956 (as amended) (hereinafter “the 1956 Act”) on the basis that the Applicants did not have the necessary five years reckonable residence. The net legal issue which arises is whether physical presence in the State of a person whose application for residence as a family member of an EU citizen has been accepted for consideration under the European Communities (Free Movement of Persons) Regulations 2015 (hereinafter “the 2015 Regulations”) is reckonable residence for the purpose of a subsequent application for a certificate of naturalisation under s. 15 of the 1956 Act. The cases were heard together, and the same legal team appeared in both.

FACTUAL BACKGROUND

2 . While there is no dispute on the facts and the issue of law which arises in each of the cases is the same, there are some factual differences. Common to both cases, neither Applicant sought permission to enter or remain in the State under s. 4 of the Immigration Act, 2004 (hereinafter “the 2004 Act”). Both Applicants entered the State to join EU citizen siblings working in the State and applied for residency based on their family relationship using Form EU1 which is entitled “ Application for a Residence Card for Non-EEA National Family Members”. Neither Applicant was requested to make a separate application under Regulation 5 of the 2015 Regulations for permission to be treated as a permitted family member.

3 . There is no evidence that either Applicant was ever advised to seek permission under s. 4 of the 2004 Act while the application was processed. Nor is it suggested on behalf of the Minister that there is a practice or convention whereby applicants for residence cards as Non-EEA National Family Members are advised to seek permission to be in the State. Nothing turns on the fact that the Minister elected to treat the date of registration rather than the date of approval of a grant of residency as the start date for reckonable residency as the resulting difference was not material to the decision. The broad factual circumstances of each Applicant are summarised as follows:

Application of Nazneen Arshad

4 . This Applicant is a national of Pakistan who claims to have lawfully resided in the State since 2015. She entered the State in September, 2015 as a family member of her brother who is a British citizen residing in the State on a permanent basis. She applied for a residence card using Form EU1. On the application form, she ticked the pre-populated box that her application was based on a sibling relationship.

5 . The Form EU1 is signed by the Applicant and her brother on the 23 ^rd of November, 2015, albeit date stamped received on the 21 ^st of December, 2015 and under Section 5 “ Declarations” records the Applicant's declaration as follows:

“I hereby apply for a residence card for myself”.

6 . She was subsequently advised that her application had been accepted for consideration on the 21 ^st of December, 2015. The first record of a communication in relation to the acceptance of her application for consideration appears to be a letter dated 25 ^th of March, 2016 which stated:

“I am directed by the Minister for Justice and Equality to refer to your application for a Residence Card under the European Communities (Free Movement of Persons) Regulations 2015 (“the Regulations”) which was accepted for consideration by this office on 21/12/2015.”

7 . The letter continued to request a range of documents to substantiate the application including documentation evidencing that the Applicant was a dependent of the EU citizen in the country from which they had come, evidence that she had been a member of the EU citizen's household in that country, evidence of the current activities of the EU citizen in the State and evidence of residence of the Applicant and the EU citizen in the State.

8 . There is no other record in evidence of the decision to accept the application for consideration. The only consideration of the Applicant as a family member by the Minister before the decision to grant residence made on the 7 ^th of February, 2017 exhibited in evidence is a consideration document dated the 7 ^th of February, 2017 which reflects the basis for the decision to grant the residence application. In this document, the evidence of the Applicant's relationship with her brother was assessed in the light of evidence submitted of:

(i) relationship (brother and sister);

(ii) dependence on the Union citizen in the country from which they had come; and

(iii) membership of the same household in the country from which they had come.

9 . There was also clear evidence available to the Minister that the Union citizen was exercising EU rights through active employment in the State.

10 . Following on from this consideration which resulted in a decision to grant residence on foot of the application for residence dated the 21 ^st of December, 2015, on the 7 ^th of February, 2017 the Minister also wrote to the Applicant to advise that her application for a residence card under the 2015 Regulations and 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 State (hereinafter “the Directive”) had been approved under Regulation 7 of the 2015 Regulations on the basis that she was a permitted family member of a Union citizen who is residing in the State in exercise of rights under the Directive. She was duly advised of required next steps to obtain a residence card as a family member of a Union citizen (Stamp 4 EU Fam). It appears that she was formally registered on the 1 ^st of March, 2017 having paid the required registration fee.

11 . The Applicant obtained employment from April, 2017 and thereafter was in receipt of maternity benefit from December, 2020 to June, 2021.

12 . The Applicant applied for a certificate of naturalisation on or about the 6 ^th of May, 2021.

13 . While her application for a certificate of naturalisation was pending, the Applicant also applied for permanent residence on the 18 ^th of May, 2021 using a Form EU3. The decision to approve this application was communicated by letter dated the 9 ^th of March, 2022 having regard to the provisions of the European Union (Withdrawal Agreement)(Citizen's Rights) Regulations, 2020 and the 2015 Regulations. She was advised on how to obtain a permanent residence document as a family member of a UK national (Stamp 4C). Accordingly, the Applicant has been granted permission to reside in the State valid until March, 2032.

14 . By letter dated the 9 ^th of March, 2023, the Applicant was advised that her application under s. 15 of the 1956 Act for a certificate of naturalisation had been refused. The refusal letter stated:

“Section 15 of the Irish Nationality and Citizenship Act, 1956, as amended, provides that the Minister may grant a certificate of naturalization if, among other things, that the applicant has been resident in the State for a period of one year immediately prior to the date of application and 4 years in the 8 year period before that. For the purpose of calculating this residency, no period may be taken into account where a non-national—

• 1. Was required to have the permission of the Minister to remain in the State but did not have that permission, or

• 2. Had permission to remain for the purpose of study (whether or not such study necessitated the employment of the non-national during the whole or part of the period of study), or

• 3. Had permission to remain for the purpose of seeking to be recognized as a refugee (within the meaning of the Refugee Act, 1996) where such application was either unsuccessful or withdrawn.

The documentation submitted with your client's application has disclosed that when such periods have been considered your client did not have five years reckonable residence as at the date of their application, therefore, your client's application for naturalization has been deemed ineligible.

It is open to your client to lodge a new application if and when they are in a position to meet the statutory requirements applicable at that time.”

15 . It transpired that the Minister had calculated the Applicant's residency as beginning on the 1 ^st of March, 2017 when she registered with the Garda National Immigration Bureau and obtained the Stamp 4 EU Fam (this is the date shown on a residency reckoner disclosed as part of the Minister's file) whereas the Applicant had lodged her application for a certificate of naturalisation on the basis that she was resident at the latest from the 21 ^st of December, 2015 when her application for residence was accepted for consideration under Regulation 7 of the 2015 Regulations.

Application of Israr Ahmed

16 . The Applicant is a national of Pakistan who claims to have lawfully resided in the State since 2015. He claims to have entered the State in or around March, 2015 and to have submitted his application for residence to the Minister using a Form EU1 on the 31 ^st of July, 2015 on the claimed basis that he was a permitted family member of his EU citizen brother who was exercising his EU Treaty rights in the State. He ticked the pre-populated box on the Form EU1 identifying his family relationship as that of a sibling.

17 . A notice acknowledging the receipt of his application indicating that it had been accepted for consideration was issued on the 13 ^th of November, 2015. In this...