About this case:

• Citation:
  [2019] IESC 37
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Peter Charleton

The arrest was made prior to the refusal of his application, and Mr Justice Peter Charleton said the man had the right to stay pending the outcome of the application.

Background

The applicant, SS, is a citizen of Pakistan. In June 2013, when he was 20-years-old, SS arrived in Ireland and applied for asylum.

In November 2014, SS’s father married NM, a Romanian national. It was noted that no one identifiably associated with the wife was listed as a witness on the marriage certificate. In July 2015, SS’s father was granted a residence card based on his marriage to an EU national. In April 2016, SS’s father made an application to permit his teenage children to come to Ireland. The Court heard that in July 2017, when SS’s father arrived in Dublin airport after a visit abroad, he “hesitated for a considerable period of time” before stating that his wife was polish. When NM was telephoned, she said she was not expecting anyone arriving through Dublin airport.

In the meantime, in February 2015, SS’s claim for asylum was deemed withdrawn due to his failure to attend the Refugee Application Commissioner for interview. A deportation order was made against him in July 2015, however, SS had unlawfully left Balseskin Reception Centre without a forwarding address. In January 2018, SS was served notice of the deportation order with a direction to leave the State by 9 February 2018 or present to the Garda National Immigration Bureau on 14 February 2018.

SS did not leave the State, but did present to the Garda National Immigration Bureau. In the interim, SS had made an application under Article 7(1) of the European Union (Free Movement of Persons) Regulations 2015 (SI 548 of 2015) as a qualifying family member on the basis that he was dependent on an EU citizen, being his step-mother, and her husband, his father. 

On 20 June 2018, SS was arrested in Portlaoise for deportation. On 27 June 2018, in a letter misdated as 21 June 2018, the Minister refused SS’s application under Article 7 on the basis that he was not a qualifying family member because he was not dependent on the EU citizen.

It was noted that SS’s father’s residence card was revoked on 27 June 2018, on the basis that the marriage was one of convenience.

Under the terms of the European Union (Free Movement of Persons) Regulations 2015, Article 7(6) declares that an “applicant under paragraph (1) may remain in the State pending a decision on the application.” The Minister claimed that this requires a non-literal construction.

Habeas corpus

After his arrest, an application for habeas corpus was then made on SS’s behalf. Thereafter, SS was granted bail.

In the High Court in July 2018, Mr Justice Richard Humphreys held that SS was in lawful custody. In the Court of Appeal in December 2018, Ms Justice Isobel Kennedy agreed that SS was in lawful custody.

Both the High Court and the Court of Appeal held that there should be read into the Regulations a requirement that in order to render a stay in Ireland lawful under Article 7(6), a person applying for a residence card must first establish that he or she is an actual qualifying family member. However, Mr Justice Charleton said this was not the procedure pursued by the Minister in dealing with this application, and added “there is no basis either from the plain words of the text or from the context for reading such an interpretation into the plain words of the Regulations”.

Mr Justice Charleton said that what was involved on the appeal was the issue of interpretation of domestic legislation. He said this issue could be resolved by posing the question: “did the Regulations grant the right to stay pending the resolution of an application?” Mr Justice Charleton said the answer was clearly that “the Regulations, in the replication of rights, did what was required by the Directive, but also granted that right”. He said, the phrase “may remain in the State pending a decision on the application” appeared in the Regulations, but not in the Directive. Instead, the Regulations replicate the entitlement of a person applying for refugee status to remain in the State pending the outcome of that application and the determination of any appeal, and that this is found in section 9 of the Refugee Act 1996, as amended.

Mr Justice Charleton said the concept of a two-part test was not made integral to the national legislation – i.e. that of demonstrating on application a prima facie case of entitlement by virtue of being a family member of a European Union national, as defined, followed by proof of dependency and relationship.

Finding that this could not be read into the national legislation, Mr Justice Charleton said SS’s arrest was unlawful and at the date of the application under Article 40 he was not detained in accordance with law.

• by Seosamh Gráinséir for Irish Legal News