S v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 21 December 2020
• Neutral Citation: [2020] IESC 78
• Date: 21 December 2020
• Court: Supreme Court
• Docket Number: Supreme Court appeal number: S:AP:IE:2020:000059 Court of Appeal record number 2018/362 [2019] IECA 330 High Court record number 2016/707JR [2018] IEHC 458

Between

Sheharyar Rahim Subhan

and

Asif Ali

Appellants/Applicants

- and -

The Minister for Justice and Equality

Respondent

[2020] IESC 78

Clarke C.J.

O'Donnell J.

McKechnie J.

Charleton J.

O'Malley J.

Supreme Court appeal number: S:AP:IE:2020:000059

[2020] IESC 000

Court of Appeal record number 2018/362

[2019] IECA 330

High Court record number 2016/707JR

[2018] IEHC 458

An Chúirt Uachtarach

The Supreme Court

Residence card – Judicial review – Member of household – Appellants seeking residence card – What are the circumstances in which parties may cite and rely on alternative language versions of Directives, Regulations or other EU instruments?

Facts: The respondent, the Minister for Justice and Equality, decided to decline a residence card to the second appellant, Mr Ali. The High Court dismissed the application for judicial review of the Minister’s decision, holding that the law was correctly applied and any findings of fact were within the bounds of fundamental reason and common sense and were based on an analysis of the papers submitted by the appellants. Keane J dismissed the argument of Mr Ali that he was a dependent of the first appellant, Mr Subhan. The Court of Appeal considered that it was necessary, on the appeal from the High Court, to further consider and exemplify what would be regarded in EU law as a person entitled to migrate from one EU country to another through accompanying the EU citizen as a member of that person’s household. Baker J found that who is or is not a member of someone’s household was a question of relationship, intention and degree, more a descriptive matter than one for precise definition. In the determination of the Supreme Court granting leave to appeal, dated 20 July 2020, [2020] IESCDET 89, the issues were set out as: (1) the circumstances in which parties may cite and rely on alternative language versions of Directives, Regulations or other EU instruments; and (2) the true meaning to be given to the term “member of household” in 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, OJ L158/77 30.4.2004, and in the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (S.I. No. 656 of 2006), as amended, applying that term.

Held by Charleton J that it is only at the stage of considering a reference that it should be necessary to consider any possible lack of clarity in other EU language versions. Charleton J held that the version of any Directive or Regulation is operative in English or in Irish; these are the official languages. Charleton J held that that version has equivalence and equal validity to any other language version. Charleton J held that EU legislation is not ordinarily to be read other than in the official languages of the State. Charleton J held that where there is doubt about the language of EU legislation as to what it means, a teleological interpretation should be adopted in the light of the recitals, the surrounding and referential text and the ultimate purpose of the legislation; only if a lack of clarity thereby emerges and in the context of considering a reference should any issue as to other languages emerge. Charleton J held that consulting such languages is for the purpose of clarity and not to bring a lack of clarity to what is expressed in the official languages. Charleton J held that if other languages are called in aid on a claim of ambiguity, and an asserted nuance is pointed out, this has to be done in an orderly manner. Charleton J noted that, in this case, the State never suggested that the translations offered were incorrect, and the Court was entitled to have regard to what was offered. Charleton J held that where unnecessary time and expense is devoted to a translation issue which goes against the asserting party, a court, in the exercise of discretion under Order 99 of the Rules of the Superior Courts, should start from the proposition that this will be a matter for the adverse award of costs on that aspect of the case, irrespective of the outcome.

Charleton J held that the issue as to who is a member of the household of an EU citizen when exercising rights of free movement from one country to another requires reference to the Court of Justice of the European Union because the meaning of who is a member of the household of an EU citizen is not acte claire.

Reference to CJEU.

Judgment of Mr Justice Peter Charleton delivered on Monday 21 December 2020

1 Two issues arise for decision on this appeal from the Court of Appeal: firstly, some guidance is sought as to the proper approach of a judge who is faced with an argument that the English or Irish version of European Union legislation may be informed by reading that text in another official language, such as French or Greek; secondly the meaning to be ascribed to defining or describing who is a “member of the household” of an EU citizen, whereby if he or she moves to another EU country, that other person or persons should be facilitated in accompanying him or her. The language issue may be resolved in concise form in this judgment. In contrast, the issue as to who is a member of the household of an EU citizen when exercising rights of free movement from one country to another, requires reference to the Court of Justice of the European Union.

Factual issue

2 At issue is the entitlement of Asif Ali, an able-bodied but unemployed man of 34 years who is a national of Pakistan, to move from Great Britain to Ireland with his first cousin Sheharyar Rahim Subhan, originally also solely a national of Pakistan. The latter became a naturalised British subject in February 2013. Asif Ali asserts that in his childhood, he and Mr Subhan lived in a family compound of two or more families in Pakistan. In due course Asif Ali asserts that he studied in university and gained qualifications in economics and related subjects. Meanwhile, Mr Subhan had moved to England. Some years later Asif Ali followed and they both lived in the same house. This was owned or rented by an older relative of them both. It is asserted that they later got a joint tenancy. On entering Britain, Asif Ali had a visa for higher study for four years and stayed with Mr Subhan, though the details of travel to university and accommodation are not clear.

3 In the months just before that visa expired, Mr Subhan had moved to Ireland. Just after the visa expired, Asif Ali moved to Ireland and sought residency on the basis of accompanying an EU citizen as a member of his household. This was on the basis of dependency on Mr Subhan and on the assertion of him being a member of Mr Subhan's household established in another EU country from which he was moving. This appeal consequently centred on the meaning of what it is to be a member of an EU citizen's household as a matter of national and of European Union law and on the definition or description whereby, under the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (S.I. No. 656 of 2006), as amended, which in turn implements 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, OJ L158/77 30. 4.2004, a person is assessed as being a “permitted family member” of a Union citizen by the Minister for the purposes of considering whether or not the Minister will grant to him or her a residence card.

Detailed Background

4 Both Mr Subhan, born 1978, and Mr Ali, born 1986, were born and raised in Pakistan. Mr Subhan moved to Great Britain with his parents in 1997, age 19, and became a naturalized British subject on 8 February 2013. Mr Subhan moved to Ireland in January 2015. He was employed thereafter for a few months, and since October 2015 has been self-employed within the State. After he came to reside in Ireland he married a woman who is a Pakistani citizen and who resides in Pakistan but in respect of whom an application has been made to the Minister for family reunification. Mr Ali asserts that he is the first cousin of Mr Subhan and also says that both were brought up in the same family compound in Peshawar until Mr Subhan moved to Britain, when Mr Ali would have been 10 or 11 years old. Mr Ali has a third level degree in economics from a university in Pakistan. It is asserted that Mr Subhan funded, to some unspecified degree, his study in Pakistan. Both the Minister and the High Court on reviewing the Minister's decision, rejected any contention that Mr Ali was a dependant of Mr Subhan. Ostensibly to pursue further study, Mr Ali sought a visa for foreign study in Britain. In 2010 he travelled to the Britain on a four-year student visa, following a course in accountancy and business administration. While he was studying, it is claimed that he resided for over four years with Mr Subhan and with Mr Subhan's parents and other family members. This is asserted to be in a house which was owned by the brother of Mr Subhan, also a British subject. It is asserted that Mr Subhan paid a rental out of his income to that brother, who spent much of his time in Pakistan. Mr Subhan and Mr Ali entered into a joint tenancy agreement for one year with that brother on 11 February 2014, some four years after Mr Ali came to reside in the England, and less than one year before Mr Subhan came to reside in the Ireland. Then Mr Ali's visa expired within that year, on 28 December 2014.

5 On 5 March 2015, Mr Ali entered the State without a visa by travelling through Northern Ireland. Mr Ali went to reside with his cousin Mr Subhan in a residence in a provincial town. On 24 June 2015, Mr Ali applied for an EU residence card as a permitted family member of Mr Subhan. Mr Ali claimed that he was dependent upon Mr Subhan, a citizen of another EU country, Britain, exercising his free movement rights, and was, for the...