Sheharyar Rahim Subhan and Asif Ali v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Clarke C.J.,MacMenamin J.,Dunne J. |
| Judgment Date | 20 July 2020 |
| Neutral Citation | [2020] IESCDET 89 |
| Date | 20 July 2020 |
| Court | Supreme Court |
| Docket Number | Supreme Court record no: S:AP:IE:2020:000059 High Court record no: 2016 No. 707 JR |
AND
[2020] IESCDET 89
Clarke C.J.
MacMenamin J.
Dunne J.
Supreme Court record no: S:AP:IE:2020:000059
Court of Appeal record no: A:AP:IE:2018:000362
High Court record no: 2016 No. 707 JR
THE SUPREME COURT
DETERMINATION
RESULT: The Court grants leave to the Applicants to appeal to this Court from the Court of Appeal
| COURT: Court of Appeal |
| DATE OF JUDGMENT OR RULING: 19th December, 2019 |
| DATE OF ORDER: 5th February, 2020 |
| DATE OF PERFECTION OF ORDER: 22nd April, 2020 |
| THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 6th May, 2020 AND WAS IN TIME. |
This determination relates to an application for leave to appeal from a decision of the Court of Appeal.
The general principles applicable by this Court in determining whether to grant or refuse leave to appeal, having regard to the criteria incorporated into the Constitution, as a result of the 33rd Amendment, have now been considered in a large number of determinations, and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v. Director of Public Prosecutions [2017] IESC DET 134, and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v. Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called “leapfrog appeal”, direct from the High Court to this Court, can be permitted were addressed by a full panel of this Court in Wansboro v. Director of Public Prosecutions [2017] IESC DET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.
Furthermore, the application for leave filed, and the respondent's notice, are published, along with this determination, (subject only to any redaction required by law), and it is therefore unnecessary to set out the position of the parties.
In that context, it should be noted the respondent seeks an order dismissing the appeal, affirming the order of the Court of Appeal, and an order for costs for the respondents.
This application arises from a judgment of the Court of Appeal [2019] IECA 330, where that court affirmed a judgment of the High Court (Keane J. [2018] IEHC 458), which rejected the applicants’ application for judicial review of a decision made by the respondent Minister on the 15th March, 2016. The application to this Court concerns the interpretation of the term “member of the household of the Union citizen”, contained in Article 3(2) of Directive 2004/38 (The Citizens Directive). This was implemented in Irish law by the EC Communities (Free Movement of Persons) (No. 2) Regulations, 2006 (S.I. 656/2006, as amended). In the impugned decision, the Minister, who is the respondent, held that the second named applicant was not a member of the household of the first applicant, who was a U.K. and E.U. citizen. The applicants sought to challenge that decision in the judicial review proceedings.
The second applicant is a cousin of the first named applicant. Both were born and grew up in Pakistan. The first named applicant came to the United Kingdom, and became a U.K., and thereby an E.U., citizen. The second named applicant later came to join him. The second applicant lived with the first applicant in his house in England. It is said that he was financially dependent upon him. On occasion, he also made financial contributions to the household whilst in the U.K. Later, the first named applicant moved to Ireland, apparently for commercial reasons. The second named applicant then joined him, although he was not entitled in law to enter this State. Since that time, the evidence was that the second named applicant had continued to live with the first named applicant. In that capacity, the second named applicant applied for an E.U. residence card, pursuant to the Directive and the Regulations. Both applicants submit that the term “member of the household” contained in the Directive covers family members of a Union citizen who have lived with such citizens under the same roof, or co-habited with them in the country from which they have come.
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S v Minister for Justice
...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......