Pervaiz v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 06 June 2019 |
| Neutral Citation | [2019] IEHC 403 |
| Court | High Court |
| Docket Number | 2018 No. 692 JR |
| Date | 06 June 2019 |
[2019] IEHC 403
THE HIGH COURT
Barrett J.
2018 No. 692 JR
AND
EU Law – Asylum Immigration and Nationality – Judicial Review – Applicant seeking order of certiorari quashing decision of the Minister – Whether applicant and his girlfriend had a durable relationship duly attested within the meaning of Art. 3(2) of the Citizen’s Rights Directive (Directive 2004/38/EC)
Facts: The applicant, a non-EU national, was living with his girlfriend in Dublin for approximately a year and applied to be treated as a permitted family member under the EC (Free Movement of Persons) Regulations 2015. His application was denied on the basis that he could not establish a “durable relationship,” which was necessary for Art. 3(2) of the Citizen’s Rights Directive (Directive 2004/38/EC) to apply. The applicant brought judicial review proceedings and sought an order of certiorari quashing the Impugned Decision of the Minister and other declaratory relief.
Held by Barrett J that the term “durable relationship” had no meaningful definition and the two-year bench-mark of cohabitation used by the Minister was not strictly applied. The decision-making process was therefore opaque and not susceptible to meaningful judicial review. Barrett J stated that a central characteristic of the rule of law is that the law must be accessible, and as far as possible intelligible, clear and predictable. The absence of a definition of “durable relationship” leads to a situation of arbitrary decision-making and puts the individual in a place where they do not know what their rights are, which is fundamentally at odds with the rule of law.
Barrett J held that the lack of clarity resulted in a breach in the rule of law, a breach of the principles of effectiveness and inconsistencies with the liberal thrust of the Citizens’ Rights Directive. Barrett J further found issues with unfair procedure, issues of reviewability of the Impugned Decision, and issues with the Minister’s exercise of discretion.
Barrett J granted an order of certiorari quashing the Impugned Decision and remitting the application to the Minister for fresh consideration.
Relief granted.
Mr Pervaiz, a non-EU national, claims to live in Dublin with his girlfriend, an EU national. According to Mr Pervaiz, he moved in with his girlfriend in September 2016 and they have resided together since. In September 2017, Mr Pervaiz applied to be treated as a permitted family member within the meaning of the EC (Free Movement of Persons) Regulations 2015. By that time, on his account, Mr Pervaiz would have been living with his girlfriend for about a year. Mr Pervaiz's application failed initially and also following internal review, the Minister not being satisfied that Mr Pervaiz is a person with whom his girlfriend has a ‘ durable relationship duly attested’. Mr Pervaiz has now brought the within judicial review proceedings concerning the review decision of 14.05.2018 (the “Impugned Decision”).
Under reg.5(2) of the 2015 Regulations ‘ Where a Union citizen has entered or is residing in the State in accordance with these Regulations or is proposing to do so, a person to whom paragraph (1) applies may apply to the Minister for a decision that he or she be treated as a permitted family member’. In Mr Pervaiz's case, to be treated as a permitted family member, he must be a person to whom reg.5(1)(b) applies. For reg.5(1)(b) to apply he must be a ‘ partner with whom a Union citizen has a durable relationship, duly attested’. This wording springs from Art.3(2) of the Citizens” Rights Directive ( Directive 2004/38/EC), which provides, inter alia, that ‘[T] he host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons…(b) the partner with whom the Union citizen has a durable relationship, duly attested’.
What is a ‘ durable relationship’? The phrase is not defined in the Citizens” Rights Directive, most likely so as to allow the various member states to proceed by reference to concepts of relationships/durability that suit their respective mores and traditions. Nor is the phrase defined in the 2015 Regulations (the domestic legislation that seeks to transpose the Citizens” Rights Directive). Nor has it separately been expounded upon, e.g., in departmental guidance. Even so, the court does not accept that the phrase cannot be defined or amplified upon. By declining, when transposing the Directive, to define in law or separately to state as a matter of policy what is, or what the Minister generally considers to be, subject to the application of discretion in any one case, a ‘ durable relationship’, the Minister has allowed a situation to arise in which no-one (applicants, officials or indeed the court) quite knows what a ‘ durable relationship’ is. It has emerged in these proceedings that a ‘ durable relationship’, as conceived by the Minister, inter alia, involves a “sort of” two-year benchmark (certainly that benchmark is mentioned, inter alia, in the Impugned Decision and in the application documentation); however a lower timeframe, it has been averred for the Minister in these proceedings, can be applied if that is considered to be merited on the evidence in any one case, though quite when the evidence will be (or is) considered to justify the application of a lower timeframe and how a particular lower timeframe is settled upon is entirely unclear.
All the foregoing means that Mr Pervaiz did not quite know how to pitch his application, the Minister is pretty much at large in terms of his decision-making, and the court has no benchmark by which to commence a consideration of reasonableness or rationality because it does not know what is meant by the term ‘ durable relationship’. Nor is the dictionary definition of ‘ durable’ especially enlightening: the online Cambridge English Dictionary defines ‘ durable’ as meaning, e.g., ‘ able to continue for a long time without failing’. But every romantic relationship is technically able to continue for a long time without failing. Counsel for the Minister drew the attention of the court to the fact that in the ‘ Explanatory Leaflet for Form EU1A’, a document issued by the Minister and concerning the completion of the form whereby one applies in Ireland to be treated as a permitted family member, there is reference to a ‘ durable relationship’ as a ‘ lasting’ relationship. However, if anything that serves only to add to the existing confusion. After all, a continuing relationship that lasts for any meaningful length of time is a lasting relationship.
In passing, the court notes the written submission by the Minister that: ‘[I] t should be noted that the Applicant submitted no documentation to evidence that he was in a durable relationship duly attested with [his girlfriend] other than that relating to their alleged cohabitation history’ [emphasis added]. The mention of the word ‘ cohabitation’ in the just-quoted submission is profoundly misplaced. Dictionary definitions of the word ‘ cohabitation’ typically embrace a couple living together and having a physical sexual relationship without being married or in a civil partnership. It would, of course, be possible – contrary to what the last-quoted submission appears to suggest – for an applicant to establish the existence of a ‘ durable relationship’ by reference solely to a committed physical sexual relationship. However, there is no suggestion in the Citizens” Rights Directive that a couple must: (i) be living together for them to be in a ‘ durable relationship’; and the court considers that it can take judicial notice of the fact that couples can be forced by work or other commitments to live partly and sometimes largely apart; or (ii) have a physical sexual relationship before they can be found to be party to a ‘ durable relationship’. If the Minister in his use of the word ‘ cohabitation’ in the last-quoted submission means to suggest that there must be a physical sexual dimension to a relationship before it could be a ‘ durable relationship’, that proposition is respectfully rejected by the court.
In the absence of Community rules, it is for the domestic legal system of each member state to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law. Those detailed procedural rules governing actions for safeguarding an individual's rights under Community law, inter alia, must not render practically impossible or excessively difficult the exercise of rights conferred by Community law (this is the principle of effectiveness). (See e.g., Case C-268/06 IMPACT v Minister for Agriculture and Food & ors). In a situation where no-one (applicants, officials or the court) quite knows what a ‘ durable relationship’ is and where the bench-mark applied by the Minister in any one assessment of durability is entirely unclear, the court cannot but conclude that the Minister is rendering excessively difficult the exercise of rights conferred by Community law, here the EU-inspired right existing under reg.5 of the 2015 Regulations to apply to be treated as a permitted family member. The court notes in this regard the cautionary note sounded by the Court of Justice in Case C-127/08 Metock, para.84 that when it comes to the Citizens” Rights Directive ‘ the provisions of that directive…must not in any event be deprived of their effectiveness.’ (See also in this regard: Case C-162/09 Secretary of State for Work and Pensions v. Lassal, paras. 30-31; Case...
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