Pervaiz v Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Ms Justice Baker
• Judgment Date: 02 June 2020
• Neutral Citation: [2020] IESC 27
• Court: Supreme Court
• Docket Number: S:AP:IE:2019:000154
• Date: 02 June 2020

Between/

Muhammad Uzair Pervaiz

Applicant/Respondent

- And -

The Minister for Justice And Equality, Ireland

And

The Attorney General

Respondents/Appellants

[2020] IESC 27

Clarke C.J.

O'Donnell J.

Dunne J.

Charleton J.

Baker J.

S:AP:IE:2019:000154

THE SUPREME COURT

Permitted family member of a Union citizen – Third country national – Constitution of proceedings – Appellants appealing from the High Court order granting certiorari of a decision refusing the respondent’s application to be treated as a permitted family member of a Union citizen – Whether the proceedings were properly constituted

Facts: The respondents/appellants, the Minister for Justice and Equality, Ireland and the Attorney General, appealed to the Supreme Court from the order of Barrett J made on 21 June 2019 for the reasons given in his written judgment of 6 June 2019, [2019] IEHC 403, granting certiorari of a decision of the Minister refusing the application of the applicant/respondent, Mr Pervaiz, to be treated as a permitted family member of a Union citizen pursuant to 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. L/158, 30.4.2004 (the Citizens Directive) and the European Communities (Free Movement of Persons) Regulations 2015 (S.I. 548/2015) (the 2015 Regulations). The appeal was primarily concerned with how the Minister is to approach an application by a third country national to be treated as a permitted family member by reason of being in a durable relationship with a Union citizen. The two other matters that arose for consideration were the manner by which the proceedings were constituted, and the argument by Mr Pervaiz that the 2015 Regulations do not properly transpose the Citizens Directive.

Held by Baker J that the Minister’s appeal concerning the question of the standing of Mr Pervaiz to maintain these proceedings without joining the Union citizen as a co-applicant should be dismissed, and that the trial judge was right in the view he took regarding the manner of the constitution of the proceedings. Baker J held that the trial judge was incorrect in his conclusion that the Citizens Directive has not been properly incorporated into Irish law, that the test applied by the Minister was vague and uncertain, and that the decision maker had fettered her discretion. Baker J held that the trial judge was also incorrect that the Irish transposing instrument fails to respect the principles of effectiveness.

Baker J held that the appeal should be allowed and the order of the High Court quashing the decision of the Minister must be set aside.

Appeal allowed.

JUDGMENT of Ms Justice Baker delivered on the 2 ^nd day of June, 2020

1 This judgment concerns the interpretation and application of the 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. L/158, 30.4.2004 (“the Citizens Directive”), transposed into Irish law by the European Communities (Free Movement of Persons) Regulations 2015 (S.I. 548/2015) (“the 2015 Regulations”).

2 The appeal is primarily concerned with how the Minister is to approach an application by a third country national to be treated as a permitted family member by reason of being in a durable relationship with a Union citizen. The two other matters that arise for consideration are the manner by which the proceedings are constituted, and the argument by Mr Pervaiz that the 2015 Regulations do not properly transpose the Citizens Directive.

3 This appeal is from the order of Barrett J. made on 21 June 2019 for the reasons given in his written judgment of 6 June 2019, Pervaiz v. Minister for Justice and Equality [2019] IEHC 403, granting certiorari of a decision of the Minister for Justice and Equality (“the Minister”) refusing the application of the respondent (“Mr Pervaiz”) to be treated as a permitted family member of a Union citizen pursuant to the Citizens Directive and the 2015 Regulations.

Background facts

4 The facts may briefly be stated. Mr Pervaiz claims to be in a committed relationship with Ms L., a citizen of Spain who has been resident and working in the State for a number of years, thereby exercising her rights of free movement as a citizen of the Union.

5 Mr Pervaiz made an application to be permitted to reside in the State, received by the Minister on 20 October 2017. The documentation furnished with the initial application and thereafter in response to a request for further supporting evidence will be dealt with in the course of this judgment.

6 The application was refused by letter dated 19 December 2017 on the stated ground that Mr Pervaiz had failed to demonstrate that he and Ms L. were in a durable relationship.

7 An internal review was requested, and further information sought and furnished. The review resulted in the original decision being upheld.

8 Certiorari by way of judicial review and certain declaratory orders more fully set out below were sought of the decision on the internal review. This is an appeal to this Court directly from the decision of Barrett J. in that judicial review.

9 The primary challenge is that the 2015 Regulations do not correctly transpose the Citizens Directive by reason of the absence of specific and detailed criteria and by reason of the fact that the material parts of the Regulation repeat the words of the Directive itself. It is also argued that the Minister fettered his discretion. There is no claim that the Minster acted unreasonably, or failed to explain the decision. This judgment is therefore primarily concerned with these general matters of high principle.

The judgment of the High Court

10 Barrett J. rejected the argument advanced on behalf of the State parties that the proceedings were improperly constituted on account of the fact that the Union citizen was not a party, it having been argued that Mr Pervaiz was not competent without the joinder of the Union citizen to assert rights under the 2015 Regulations, as these rights were promulgated in order to advance and give concrete support to the free movement rights of Union citizens.

11 Barrett J. also considered that the Citizens Directive had not been adequately transposed into domestic law by reason of the fact that the general nature of the language used in the Regulations coupled with the fact that no legislative, or other non-legislative, guidance had been provided for the purposes of the interpretation of the concept of “durable relationship duly attested” found in the Directive and the 2015 Regulations mean that domestic provisions are unclear.

12 Barrett J. considered that the making of provision for an internal review of the decision at first instance did not provide an effective appeal mechanism and that Irish law therefore infringed article 47 of the Charter of Fundamental Rights of the European Union.

13 For these reasons Barrett J. granted an order of certiorari but did not make any formal declaration to reflect his decision on the issue of the proper transposition of the Citizens Directive and the availability of an effective remedy in national law.

The scheme and purpose of the Citizens Directive

14 The Citizens Directive provides the framework within which application for residence in the territory of a Member State for Union citizens and their family members is to be considered. Recital 1 provides that the right to move and reside feely within the territory of the Member States is a “primary and individual right” of every citizen of the Union, subject to the limitations and conditions laid down in the Treaties. The broad principle of free movement is described as constituting “one of the fundamental freedoms of the internal market”, an area “without internal frontiers”. Recital 5 provides that the proper exercise of the right to move and reside freely within the territory of other Member States means that the right should also be granted to family members of Union citizens irrespective of nationality:

“The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality.”

15 Recital 17, having noted that the possibility of taking up the option of permanent residence in a host Member State “would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion”, provides that a right of permanent residence should be laid down for all Union citizens and their family members subject to the conditions in the Directive.

16 The scheme of the Citizens Directive provides for different approaches to two categories of family members. Family members who come within the definition in article 2(2) are afforded the right of entry and residence in the Union citizen's host Member State, provided certain conditions are met. A family member in that category is a spouse, a civil partner, a direct descendant under the age of twenty-one, or dependent, and those of the spouse or partner, and any dependent direct relatives in the ascending line of the Union citizen and of the spouse or partner.

17 The present case concerns the category of family members in article 3 who are more remote from the Union citizen and whose application for entry and residence in the host Member State is to be “facilitated”, but who cannot be said to have a right of entry or to remain.

18 Article 3 of the Citizens Directive is the focus of the present appeal, and it is convenient to quote the material part in full:

“1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of...