H v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Ms Justice Baker |
| Judgment Date | 18 December 2019 |
| Neutral Citation | [2019] IECA 335 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal No.: 2019/307 |
| Date | 18 December 2019 |
[2019] IECA 335
Appeal No.: 2019/307
THE COURT OF APPEAL
Residence card – Revocation– Order of certiorari – Appellant seeking to appeal from an order of certiorari quashing the decision of the appellant revoking the residence card of the respondent – Whether the trial judge failed to give appropriate consideration to the legal test set out in r. 6(3)(c) of the European Communities (Free Movement of Persons) Regulations 2015
Facts: The appellant, the Minister for Justice and Equality, appealed to the Court of Appeal from the order of Barrett J made on 31 May 2019 following delivery of a written judgment on 22 May 2019, [2019] IEHC 363, by which he granted an order of certiorari quashing the decision of the Minister of 5 October 2018 revoking the residence card of the respondent, Mr Hemida. The Minister appealed on the follows grounds: (a) the trial judge failed to give appropriate consideration to the legal test set out in r. 6(3)(c) of the European Communities (Free Movement of Persons) Regulations 2015 in that it is the Minister for Justice and not the Minister for Social Protection who makes the assessment for the purposes of revoking a residence card, and that the differing functions of the two Departments was not taken into account by the trial judge; (b) the trial judge erred in fact and law in coming to the conclusion that the Minister for Social Protection must have determined that the respondent’s wife, a Union citizen, was lawfully resident in the State for the purposes of r. 6(3)(c) of the 2015 Regulations when the evidence before the Minister and before the High Court was that the Union citizen could not have been lawfully resident in the State in exercise of her EU Treaty rights; (c) there was no evidence before the High Court that the Department of Social Protection had concluded that the Union citizen was exercising EU Treaty rights and the High Court had no information regarding the basis of the decision of the Department of Social Protection; (d) the approach taken by the Department of Social Protection has no bearing on the power of the Minister pursuant to r. 6(3)(c) of the 2015 Regulations, and any conflict must be resolved in favour of the decision of the Minister; (e) the reasons given met the test in the authorities that the obligation is to give reasons which are rational, cogent and adequate to ensure transparency in the decision-making process, so that the receiving party consider whether to appeal or review as the case may be: Connelly v An Bord Pleanála [2018] IESC 31.
Held by Baker J that the decision of the Minister was not flawed and that the trial judge was incorrect to conclude otherwise. Baker J held that the Minister made the decision on the uncontroverted evidence before him that the respondent’s wife had worked in the State for six months only and that evidence did not support a proposition that she was residing in the State in exercise of her Treaty rights. Baker J held that there was no error, therefore, and the continued making of social welfare payments to the respondent’s wife was not determinative of the residence application.
Baker J held that the appeal should be allowed.
Appeal allowed.
This is an appeal from the order of Barrett J. made on 31 May 2019 following delivery of a written judgment on 22 May 2019, Hemida v. Minister for Justice and Equality [2019] IEHC 363, by which he granted an order of certiorari quashing the decision of the Minister for Justice and Equality (“the Minister”) of 5 October 2018 revoking the residence card of Mr Hemida (“the respondent”).
The decision of the Minister was made pursuant to the powers contained in the European Communities (Free Movement of Persons) Regulations 2015 (“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 States, O.J. L158/77 30.4.2004 (“the Citizens Directive”).
The respondent is an Egyptian national who lives and works in Ireland. On 18 June 2013, he was granted permission to remain in the State for a period of five years pursuant to the European Communities (Free Movement of Persons) (No.2) Regulations 2006 (“the 2006 Regulations”), which were repealed by the 2015 Regulations. That permission was based on his marriage to a Union citizen, a national of Slovenia, whom I shall call “Ms C”. The couple have no children, although Ms C has two children of another relationship. The couple married on 7 December 2012 and are now separated, but not divorced.
The fact that the couple are separated and not divorced means that the respondent must be treated as still married to his estranged wife, as stated by the Court of Justice in Ogieriakhi v. Minister for Justice and Equality ( Case C-244/13) ECLI:EU: C:2014:2068, in which the Court stated that:
“[T]he marital relationship cannot be regarded as dissolved as long as it has not been terminated by the competent authority, and that is not the case where the spouses merely live separately, even if they intend to divorce at a later date”, at para. 37.
On 15 March 2017, the respondent notified the Minister that he and his wife had separated, but not when this happened. Thereafter, enquires were made by the Minister. By letter dated 14 May 2018, the Minister communicated to the respondent of his decision to revoke his permission to remain in the State, and following a review pursuant to the statutory provisions, and having received representations and engaged with the respondent, the Minister, by letter of 5 October 2018, notified the respondent that it was intended to upheld the 14 May decision to revoke his permission to be in the State.
The respondent has no primary right to reside in the State and his right derives from and rests on his estranged wife and her status as a person residing in the State in exercise of EU Treaty rights under the 2015 Regulations. In those circumstances, the rights of the respondent to continue to reside in the State involve an examination of the rights of his estranged wife to so do.
Regulation 6(3)(c) of the 2015 Regulations provide that where a Union citizen who previously worked, whether in employment or as a self-employed person in the State, ceases to be in employment or self-employment, he or she may continue to reside in the State in certain circumstances. For present purposes, the material condition is that he or she be in duly recorded involuntary employment after having been employed for more than one year and has registered as a job-seeker with the relevant office of the Department of Social Protection.
Ms C worked for six months in Ireland in 2013 and has since then been in receipt of social welfare payments. The evidence before the decision maker accordingly was that Ms C had not worked in the State, whether as a self-employed or employed person, for more than one year. She is at present, and has been for some time, in receipt of jobseeker's allowance from the Department of Social Protection.
On those facts Ms C could not have been said to be resident in the State in exercise of her Union citizen rights in accordance with r. 6 of the 2015 Regulations.
The trial judge found that the decision could not stand on account of a failure to reason or, as he put it at para. 2, “reason through” the fact that the respondent's estranged wife was and continued to be in receipt of social welfare payments and that the decision of the Minister was “unreasonable, even irrational” in that it failed to reconcile the fact that another department of State had concluded that Ms C did enjoy a primary right of residence in Ireland as she was and continued to be in receipt of social welfare payments, or explain why the Minister had come to a contrary view.
The short but precise decision of Barrett J. centres on his conclusion that neither the respondent nor the judge himself could understand why the Department of Social Protection had acted as it did.
On the separate but linked question of whether the respondent could provide further documentation relating to the residence status of his estranged wife, Barrett J. took the view that, as the respondent's evidence was that he did not have contact with his estranged wife, he could not reasonably be expected to provide any further documentation which was in control of the Department of Social Protection.
The Minister appeals on fifteen pleaded grounds which may be grouped as follows:
a) that the trial judge failed to give appropriate consideration to the legal test set out in r. 6(3)(c) of the 2015 Regulations in that it is the Minister for Justice and not the Minister for Social Protection who makes the assessment for the purposes of revoking a residence card, and that the differing functions of the two Departments was not taken into account by the trial judge;
b) that the trial judge erred in fact and law in coming to the conclusion that the Minister for Social Protection must have determined that Ms C was lawfully resident in the State for the purposes of r. 6(3)(c) of the 2015 Regulations when on the evidence before the Minister and that before the High Court was that the Union citizen could not have been lawfully resident in the State in exercise of her EU Treaty rights;
c) that there was no evidence before the High Court that the Department of Social Protection had concluded that the Union citizen was exercising EU Treaty rights and the High Court had no information regarding the basis of the decision of the Department of Social Protection;
d) that the approach taken by the Department of Social Protection has no bearing on the power of the...
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