About this case:

• Citation:
  [2020] IESC 27
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Marie Baker

The judgment concerned the interpretation and application of 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 L/158 (the Citizens Directive), transposed into Irish law by the European Communities (Free Movement of Persons) Regulations 2015 (SI 548/2015).

Regulation 5(1)(b) of the 2015 Regulations includes within the definition of permitted family member a person who is a partner of a Union citizen and with whom the Union citizen has a durable relationship duly attested. Such persons can seek liberty to enter and remain in the State as a result of such a relationship.

Background

Muhammad Uzair Pervaiz claimed to be in a committed relationship with Ms L, a citizen of Spain, who has been resident and working in the State for a number of years, in exercise of her rights of free movement as an EU citizen. The couple had been living together for four years. Mr Pervaiz sought liberty to enter and remain in the State under the 2015 Regulations.

He made an application for liberty to reside in the State in October 2017. The Minister refused his application, finding that Mr Pervaiz had failed to demonstrate that he and Ms L were in a durable relationship. The refusal was upheld by an internal review. He sought judicial review.

In the High Court (Pervaiz v Minister for Justice and Equality [2019] IEHC 403), Mr Justice Max Barrett granted certiorari of the Minister’s refusal. The State parties argued that the proceedings were improperly constituted, in that Mr Pervaiz did not have standing to challenge the decision in his own right and that Ms L, the EU citizen, was a necessary party to the challenge, either alone or as a co-applicant. The court rejected that argument.

The Minister appealed to the Supreme Court.

Supreme Court

Ms Justice Marie Baker held that the High Court had erred in finding that the Directive was not properly incorporated into Irish law. The court also held that he had erred in holding that the test applied by the Minister concerning “durable” relationship with an EU citizen was vague and uncertain, and in finding that the department decision maker had fettered her discretion. The judge said the Regulations “permit a plain reading and do not lack clarity or sufficient precision”.

The “durable” requirement does not amount to “permanent” but means that “the relationship be one which has continued for some time and to which the parties are committed, with an intent that the commitment continues, one, therefore, which carries the indicia of commitment such that, at the present time, each of the parties to the partnership would express a view and a hope that the relationship will continue for the foreseeable future”.

Ms Justice Baker noted that since Mr Justice Barrett delivered his judgment, the issue came for consideration in the Court of Appeal in Safdar v Minister for Justice and Equality, where the State’s argument on standing was rejected. She cited her judgment in that case, with which the other two members of the Court of Appeal agreed, where she said that while the rights of the third country national were “derivative in nature, in that they were rights that supported and depended upon the rights of free movement of the Union citizen, the third country national had an entitlement in his own name to challenge the decision”.

She noted that the reasoning behind the Citizens Directive is that a European Union citizen may be “less inclined to take full advantage of the right to freely move, live, and work in the other Member States were he or she to be constrained by existing family ties, existing moral or other obligations, or by the fact that he or she is in a durable relationship with a person who has no right to travel to the host Member State, the loss of which would have personal, emotional, and social consequences for the Union citizen”.

While finding that Mr Pervaiz’s rights are derivative, the judge said that she did “not accept that the rights sought to be engaged by Mr Pervaiz are the rights of Ms L. It is true that she is interested in the result of the application, and that the 2015 Regulations exist to facilitate and assist the exercise by her of her rights as a Union citizen. The rationale for the creation of the rights in the Citizens Directive and in the 2015 Regulations does not, it seems to me, define by whom the rights may be asserted.”

Ms Justice Baker said the Grand Chamber of the Court of Justice of the European Union (CJEU) in Secretary of State for the Home Department v Rahman stated that the requirement in article 3(2) of the Directive to “facilitate” entry and residence to extended or permitted family members “is mandatory and confers on that category of persons ‘certain advantages’ when their application comes to be considered”.

That reasoning led to the conclusion that member states must “make it possible” for such persons to “obtain a decision on their application”, and that that application must involve an “extensive examination of their personal circumstances”, and that a refusal is to be justified by reasons. Their application for entry and residence in the State is to be facilitated, but they do not have an automatic right of entry or such a right to remain: “To ‘facilitate’ an application in those circumstances does not mean that the requirements be easily met.”

She said that the application form and explanatory leaflet both contained detailed instructions, and that it could not be said that no guidance had been published to assists applicants. The court overturned Mr Justice Barrett’s finding that the Statutory Instrument did not provide an effective remedy, noting the availability of a full internal review and that the internal review decision can be judicially reviewed.

The judge said that the couple may make a fresh application, noting that nothing in the judgment was “intended to, or can, impact upon the decision-making process or the approach to the evidence and submissions on such further application”.

The Court said that the relationship does not appear to be a relationship of convenience, and that Ms L had supported Mr Pervaiz throughout the process, including by swearing three affidavits. The judges recognised that Mr Pervaiz has the support of her family, and that Ms L attended the hearing of the appeal with Mr Pervaiz.

The Court upheld the appeal, but dismissed the Minister’s appeal concerning the question of the standing of Mr Pervaiz to maintain these proceedings without joining Ms L as a co-applicant.