I.T. v Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 01 January 2023
• Neutral Citation: [2023] IEHC 40
• Court: High Court
• Docket Number: [Record No. 2022/143 JR]

Between:

I.T.

Applicant

and

Minister for Justice

Respondent

[2023] IEHC 40

[Record No. 2022/143 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Residence permission – Retention – Applicant seeking an order of certiorari quashing the decision of the respondent to refuse a residence card to the applicant – Whether the decision was taken in breach of the requirements of fair procedures by reason of a failure to disclose the material relied upon in advance

Facts: The applicant, in August, 2018, sought retention of his residence permission. His application was refused in October, 2019. By letter dated the 17th of October, 2019, the applicant’s solicitor sought a review of the decision. The review application was determined in November, 2021. The applicant applied to the High Court seeking an order of certiorari quashing the decision of the respondent, the Minister for Justice, refusing a residence card to the applicant as communicated by letter dated the 22nd of November, 2021. A preliminary issue was raised that the proceedings were out of time and the respondent argued against the grant of an extension of time. The parties argued for different interpretations of the one-year employment requirement contained in Regulation 6(3)(c) of the of the European Communities (Free Movement of Persons) Regulations, 2015 (S.I. 548/2015) and Article 7(3)(b) of the Citizens' Rights Directive 2004/38/EC. The applicant contended that a cumulative approach which allows for the addition of periods of work across several years is permitted. The respondent maintained that the one-year requirement is only met by one continuous period of work. It was contended on behalf of the applicant that the payment of Jobseeker’s Allowance by the Department of Enterprise Affairs and Social Protection (DEASP) is evidence of duly recorded involuntary unemployment, whereas the respondent maintained that the test for eligibility for Jobseeker’s Allowance does not involve a determination that a person is involuntarily unemployed within the meaning of the 2015 Regulations and a burden remains on the person seeking to secure a right of residence under the Regulations to satisfy the respondent as to the fact that the EU national was involuntarily unemployed. It was the respondent’s position that in addition to establishing that the EU national was involuntarily unemployed at the material time, it is also necessary to adduce evidence of having registered as a job seeker. It was contended that the decision was taken in breach of the requirements of fair procedures by reason of a failure to disclose the material relied upon in advance.

Held by Phelan J that there is no mandatory requirement under Article 7(3)(b) or Regulation 6(3)(c)(ii) properly construed for a reckonable term of twelve months employment to be worked either continuously or immediately prior to registering as involuntarily unemployed for the purpose of Article 7(3) of the 2004 Directive or Regulation 6(3) of the 2015 Regulations. She held that there are some circumstances in which a temporary loss of employment does not re-start the clock. She held that whether such circumstances were established on the evidence in the case was a matter for the respondent. Phelan J held that nothing in the 2004 Directive or the 2015 Regulations require that the qualifying period of employment must immediately precede registration as involuntarily unemployed. In her view the failure to disclose the EU citizen spouse’s contribution records for the years 2009, 2010, 2011 and 2012 in some redacted or appropriate form, if contained in the information received from the DEASP and available to the respondent, or to transparently address them in the decision making process, undermined the fairness of the process in circumstances where the respondent was on notice that the applicant contended that his former spouse was working during those years and had submitted some supporting evidence to that effect but he had no access to further information by reason of her lack of co-operation.

Phelan J extended time for the bringing of the proceedings and granted an order of certiorari quashing the decision of the respondent as communicated by letter dated the 22nd of November, 2021.

Application granted.

JUDGMENT OF Ms. Justice Siobhán Phelan, delivered on the 1 ^st day of February, 2023

INTRODUCTION

1 . The issues raised in these proceedings turn on the proper interpretation and application of Regulation 6(3)(c) of European Communities (Free Movement of Persons) Regulations, 2015 ( S.I. 548/2015) [hereinafter “the 2015 Regulations”] giving effect to the requirements of the Citizens' Rights Directive 2004/38/EC [hereinafter “the 2004 Directive”], in particular Article 7(3) thereof. Regulation 6(3)(c) of the 2015 Regulations provides for the retention of a right to residence on the part of an EU citizen exercising free movement rights in the State in prescribed circumstances including, in material part (under Regulation 6(3)(c)(ii)), where he or she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with a relevant office of the Department of Enterprise Affairs and Social Protection [hereinafter “DEASP”].

2 . An issue arises as to whether the Respondent should, when determining whether a person is involuntarily unemployed for the purpose of Regulation 6(3)(c)(ii) of the 2015 Regulations, have regard to the decision of the DEASP to award Jobseeker's Allowance pursuant to the provisions of the Social Welfare (Consolidated) Act, 2005 [hereinafter “the 2005 Act”]. A further question arising from the terms in which the proceedings have been opposed is whether, where an EU citizen spouse is in involuntary unemployment, it is necessary for the said EU citizen spouse to have been in continuous employment for more than a year immediately prior to registering as involuntarily unemployed in order to successfully rely on retained rights as a worker to establish a derived right of residence at the time of initiation of divorce proceedings or whether periods of earlier employment prior to that time could suffice.

3 . A preliminary issue as to time is raised in relation to the Applicant's entitlement to maintain these proceedings in circumstances where the papers were filed one day outside the three-month time period prescribed under O.84, r. 21(1) of Rules of the Superior Courts 1986. The leave application was moved some eight days outside the prescribed period and accordingly an extension of time pursuant to O. 84, r. 21(3) is required.

BACKGROUND

4 . The Applicant is a non-EEA national and divorced spouse of an EU citizen. He entered the State on foot of a student visa in October, 2002. In July, 2009 the Applicant married the EU Union citizen in the State and applied for a residence permission pursuant to the 2004 Directive and Regulations on the basis of being the spouse of an EU citizen. This application was refused in February, 2010. The Applicant made further application on the 17 ^th of July, 2011 and this was again refused on the 9 ^th of February, 2012. In both instances the reason for refusal was that enquires made with the EU citizen's employer as detailed on the application forms (different in each application) revealed that she was at the time of assessment of the application, which was sometime after the application was made on each occasion, no longer in employment with the employer identified in the application. The Applicant made a third application for residence permission in March, 2013 and on this occasion was granted permission valid for five years until September, 2018.

5 . Subsequent to the grant of residence permission to the Applicant deriving from the exercise of his EU citizen spouse of EU Treaty Rights in the State, the Applicant and his former spouse were divorced. The divorce was effected by foreign decree issued in the EU citizen spouse's country of origin in July, 2014 on foot of proceedings initiated in June, 2014. The marriage had subsisted for five years by the date of its dissolution. The Applicant's permission to reside was not revoked following his divorce. He continued to work. His former spouse continued to reside in the State (albeit with possible periods of absence during return trips to her country of origin) and information disclosed from the DEASP during the decision-making process confirms that she was receipt of Jobseeker's Allowance and Child Benefit.

6 . In August, 2018, the Applicant sought retention of his residence permission in a personal capacity in reliance on Regulation 10(2) of the 2015 Regulations. Regulation 10(2) provides for retention of a derived status in the event of divorce in certain circumstances where a marriage has lasted for three years or more including at least one year in the State. At that time of his application in August, 2018 the Applicant had periods of lawful residence which well exceeded five years when periods of residence as a student and periods of residence pending determination of his application for recognition of his EU derived rights are added together with the five year residence permission which issued on foot of his March, 2013 application as spouse of an EU citizen exercising EU Treaty Rights in the State.

7 . No issue arises regarding the duration of the marriage or the period of married residence in the State in these proceedings.

8 . The Applicant's application for retention of residence permission was refused in October, 2019. The Applicant was advised in the refusal letter that his derived rights were dependent on his EU spouse continuing to exercise her EU Treaty Rights in the State. He was advised that once his Union citizen spouse ceased to comply with the conditions of Regulation 6(3)(a) of the 2015 Regulations, he ceased to hold any derived right to reside in the State in accordance with...