Hemida v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 22 May 2019
• Neutral Citation: [2019] IEHC 363
• Docket Number: 2018 No. 994 JR
• Court: High Court
• Date: 22 May 2019

[2019] IEHC 363

THE HIGH COURT

Barrett J.

2018 No. 994 JR

Between:

HANY HEMIDA

Applicant

– and –

THE MINISTER FOR JUSTICE AND EQUALITY

Respondent

Residence card – Revocation – EU Treaty rights – Applicant seeking an order of certiorari – Whether the respondent’s review decision was unreasonable

Facts: The applicant, Mr Hemida, an Egyptian national, lived and worked in Ireland. He was separated from his EU-national wife who lived in Ireland, appeared last to have worked in Ireland in 2013 and received welfare payments, including a ‘jobseeker’s allowance’. By review decision of 05.10.2018, the respondent, the Minister of Justice and Equality, revoked Mr Hemida’s residence card on the basis that his wife was not exercising EU Treaty rights consistent with the EC (Free Movement of Persons) Regulations 2015.

Held by the High Court (Barrett J) that under the Social Welfare Consolidation Act 2005, persons with a right to reside in Ireland – and under that Act (ss.141, 246) one must be habitually and lawfully in Ireland to receive jobseeker’s allowance – include a person with “the right under the…[2015] Regulations…to enter and reside in the State or…deemed [thereunder]…to be lawfully resident”; it was not suggested that the applicant’s wife had been so deemed. Barrett J held that the Department of Social Protection (DSP) must consider that she had the right to be in Ireland under reg. 6(3)(c); by contrast, the respondent considered that she was not so entitled. Barrett J held that the respondent may in principle reach this contrary conclusion but to do so properly, he must reason through how Mr Hemida does not enjoy a derivative right of residence under the Regulations, in circumstances where the DSP had apparently concluded that his wife (with whom it would have liaised directly) enjoyed a primary right of residence thereunder. Barrett J held that the respondent could not side-step, ignore, or close his eyes to, the ‘elephant in the room’ that was presented by the DSP’s stance; he must confront it head-on. In failing to do so, Barrett J held that the respondent’s review decision appeared unreasonable, even irrational.

Barrett J held that an order of certiorari would issue.

Order granted.

JUDGMENT of Mr Justice Max Barrett delivered on 22nd May, 2019.

1 Mr Hemida, an Egyptian national, lives and works in Ireland. He is separated from his EU-national wife (Ms C) who lives here, appears last to have worked...