Singh v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 08 April 2016
• Neutral Citation: [2016] IEHC 202
• Date: 08 April 2016
• Court: High Court
• Docket Number: Record No. 2013/83/JR Record No. 2012/873/JR Record No. 2012/984/JR

[2016] IEHC 202

THE HIGH COURT

JUDICIAL REVIEW

Mac Eochaidh J.

Record No. 2013/83/JR

Record No. 2012/873/JR

Record No. 2012/984/JR

Between:-

KULDIP SINGH

Applicant

- and -

THE MINISTER FOR JUSTICE AND EQUALITY

Respondent

Between:-

DENZEL NJUME

Applicant

- and -

THE MINISTER FOR JUSTICE AND EQUALITY

Respondent

Between:-

KHALED ALY

Applicant

- and -

THE MINISTER FOR JUSTICE AND EQUALITY

Respondent

International law – Reference under art. 267 of the Treaty on the Functioning of the European Union (TEFU) – Art. 13 (2) of the Directive 2004/38/EC – European Communities (Free Movement of Persons) (No.2) Regulations 2006 – Divorce – Refusal of retention of right of residence – Practice & Procedures – O. 99 of the Rules of the Superior Courts – Costs – Identification of event

Facts: Following the decision of the European Court of Justice (ECJ) on reference that the rights of the non-EU nationals were limited and contingent on the exercise of the EU treaty rights in the host State by the EU citizen, the applicants now sought an order for costs against the respondent. The applicants being non-EU nationals originally sought orders of certiorari for quashing the decision of the respondent for denying retention of residence rights on the basis that they had no independent right to remain in the State of Ireland as their rights were derived from their respective spouses/EU citizens. The contentions of the applicants were that art. 13 (2) of the Directive 2004/38/EC permitted the third country national spouse of an EU citizen whose marriage had ended in divorce, as was the case with the named applicants herein, to claim entitlement to retention of residence in personal capacity provided that their marriage had lasted for three years, including one year in the host member state.

Mr. Justice Mac Eochaidh granted orders for costs in favour of the applicants for reference while refusing costs in relation to the purely domestic element of the underlying proceedings. The Court refused to award costs in favour of the respondent despite the success of the respondent in both domestic and international proceedings. The Court held that it had discretion to depart from the normal rule of “costs follow the event” in cases where the decision had clarified an unexplored area of law. The Court found that since the issue involved for reference, which was the interpretation of the art. 13 (2) of the Directive 2004/38/EC, was the issue wherein Irish law contained conflicting opinions and it had not been addressed by ECJ itself, it was appropriate to go beyond the said normal rule and award costs to the applicants despite their failure to pursue their claims successfully. The Court reiterated the law clarified by the ECJ that a non-EU national could not enjoy right of residency under art. 7(2) of the said Directive if his spouse/Union citizen would depart from the host member state and choose to settle in another member state; however, in cases where the Union citizen had obtained divorce in previously commenced proceedings following her departure, the right of residency of non-EU national under said art. 13 (2) must be examined but not otherwise where the Union citizen had left the host member state before the initiation of divorce proceedings.

Judgment of Mr. Justice Mac Eochaidh delivered on the 8th day of April, 2016

1 This a judgement on applications for costs in three cases and for substantive orders in the first two cases named in the title of the proceedings above. The applicants seek their costs in the cases. In the Aly case, no formal orders of any sort are sought save an order as to costs. In the Singh and Njume case, the applicants seek orders and costs but effectively concede that it is not appropriate to make orders of certiorari but it is said that the Court should, in view of the decision of the Court of Justice on the reference, make certain declarations in relation to matters affecting or of interest to the applicants in those cases.

2 The respondent is looking for the costs of the proceedings including the reference to the E.C.J. in respect of the Singh and Njume case and they seek their costs in respect of the Aly case save those costs in respect of the reference where they seek no order as to costs.

3 The text of the Art. 267 Reference sent by this Court to the E.C.J. sets out all relevant matters in relation to these proceedings and I therefore incorporate it in this ruling as follows:-

‘The Text of the Article 267 Reference

A. INTRODUCTION

1. Three cases before the High Court in Ireland involve questions of EU law where non EU citizens married non Irish EU citizens in Ireland. In each case the EU citizen departed Ireland and obtained a divorce in another EU Member State.

2. The questions concern the interpretation of Council Directive 2004/38/EC and in particular whether the Minister was entitled deny the non-EU citizens permissions to continue to reside in Ireland on the basis that the EU citizens (former spouses) ceased to exercise their EU Treaty rights in Ireland on the date of the various divorces. Related questions arise as to the correct interpretation of Article 7(1)(b) of the Directive concerning the EU citizen spouse's right of residence, and whether “sufficient resources” may take into account the resources of a non-EU citizen spouse and whether non-EU citizens may have a right to work in a host Member State in order to provide “sufficient resources”.

B. RELEVANT PROVISIONS OF EU LAW

3. The relevant provisions of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States are as follows.

Recital (5):

(5) 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. For the purposes of this Directive, the definition of ‘family member’ should also include the registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage.

Recital (15):

Family members should be legally safeguarded in the event of the death of the Union citizen,

divorce, annulment of marriage or termination of a registered partnership. With due regard for family life and human dignity, and in certain conditions to guard against abuse, measures

should therefore be taken to ensure that in such circumstances family members already

residing within the territory of the host Member State retain their right of residence exclusively on a personal basis.

Article 1 under the subheading “Subject” states:

This Directive lays down:

(a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;

(b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;

(c) the limits placed on the rights set out in (a) and (b) on grounds of public policy, public

security or public health.

Article 2 defines ‘family members’ for the purpose of the Directive –

2)‘Family member’ means:

(a) the spouse;

(b) …;

(c) the direct descendants who are under the age of 21 or are dependants and those of the

spouse or partner as defined in point (b);

(d)…..;

3) ‘Host Member State’ means the Member State to which a Union citizen moves in order to

exercise his/her right of free movement and residence.

Article 3 defines the beneficiaries for the purposes of the Directive:

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 Article 2 who accompany or join them.

Article 7:

Right of residence for more than three months

1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a) are workers or self-employed persons in the host Member State; or

(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

(c) - are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and

– have comprehensive sickness insurance cover in the host Member State and assure the

relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or

(d) are family members accompanying or joining a Union citizen who satisfies the conditions

referred to in points (a), (b) or (c).

2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c).

Article 8(4) defines ‘sufficient resources’:

4. Member States may not lay down a fixed amount which they regard as ‘sufficient resources’, but they must take into account the personal situation of the person concerned. In all cases this amount shall not be higher than the threshold below which nationals of the...