Free Movement and Basic Rights
Cases
Ahsan v The Minister for Justice And Equality
(Approved) [2020] IEHC 179 (31 March 2020)
[2020] IEHC 179
THE HIGH COURT
[2018 No. 237 JR]
BETWEEN
MOHAMED AHSAN
APPLICANT
– AND –
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT
JUDGMENT of Mr Justice Max Barrett delivered on 31st March, 2020.
I. Introduction
1. This is a European Union Treaty rights (“EUTR”) related application that eventually came on for hearing after a number of adjournments. On the day before this application had been set down for hearing and marked ‘peremptory’, Mr Ahsan, a litigant in person, made a further application for an adjournment, which was refused by Humphreys J. At the outset of the hearing of the within application, Mr Ahsan sought to make what was in effect the same adjournment application. An affidavit was placed before the court which made some far-fetched claims about the previous day’s application and sought unsuccessfully to create the illusion that the application placed before this Court was somehow novel when in truth it was not. Given the foregoing, as the application had already been decided by another High Court judge, the court respectfully refused the renewed adjournment application and proceeded with the hearing of the substantive application. Mr Ahsan then indicated that, not being a lawyer, he had nothing of substance to say. At the court’s suggestion, counsel for the respondent then took the court carefully through the substance and detail of the within application, as documented. Thereafter, Mr Ahsan made a few brief observations (perhaps 2-3 minutes in length) and the court reserved its judgment, leading to the issuance of the within judgment today.
II. Background
2. Mr Ahsan, a European Union national, claims to have moved to Ireland in March 2015. EUTR applications were made in August 2015 for the issue of Irish entry visas to his wife and son, both third country nationals who are not applicants in the within proceedings. As part of those applications, Mr Ahsan stated that he was living and working in Ireland and wanted his wife and son to join/reside with him in Ireland.
3. As a matter of European Union law, once a European Union citizen has been resident in a host state for over three months he only retains a continued right of residence if the requirements of Art. 7 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 amending Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (“Citizens’ Rights Directive”) [2004] OJ L 158/77 are established to have been satisfied. It is trite law that the entitlement of family members, seeking to join a family member exercising European Union Treaty rights in Ireland, is dependent on and derivative from the existence of the said European Union Treaty rights. Under Art. 35 of the Citizens’ Rights Directive, Member States are entitled to restrict rights arising thereunder in instances of abuse of rights and/or fraud.
4. Assuming Mr Ahsan arrived in Ireland in March 2015, then, as the visa applications for his wife and son were made five months later, his continued residence in Ireland pursuant to his EUTR, and hence any derivative right of his wife/son to join him, was dependent on proof of satisfaction of the conditions outlined in Art. 7 of the Citizens’ Rights Directive.
5. The visa applications were refused in March 2017. The said refusals were unsuccessfully appealed. A notably comprehensive refusal letter issued in December 2017 which has been correctly summarised in the following terms in an affidavit sworn in the within proceedings by the relevant deciding officer:
“[I]n rejecting the appeals, I noted, inter alia, that:
(a) the applicants had failed to provide a convincing explanation for the inconsistencies in the visa application to the Applicant’s wife as concerns her proof of family relationship, in circumstances where she had previously stated that she was single and had described her relationship with the Applicant as ‘other’ than married on a previous unsuccessful UK visa application;
(b) taking into account, inter alia, the results of the Garda investigation, the applicants had failed to prove that they were joining an EU citizen who was lawfully exercising his free movement rights in the State;
(c) in particular, the applicants had failed to prove that the Applicant was genuinely resident or employed in the State;
(d) as concerns the Applicant’s alleged residence, the Visa Appeal Refusals noted that, based on Garda investigations, he did not appear to be resident at the alleged property of residence….Rather, Mrs [DS] and her husband, Mr [AQ] appeared to be resident at that address…[Mr AQ having], upon Gardaí visiting the premises, falsely described himself as the Applicant’s brother). In addition, electricity bills were paid by Mr [AQ ]….In sum, concerning the Applicant’s alleged residence, I concluded that the Applicant was not residing at [Stated Address ]…and that the alleged tenancy agreement and utility bills being put in the Applicant’s name was ‘merely to give the appearance that he has a life in Ireland and resides here’.
(e) similarly, as concerns the Applicant’s alleged bank accounts, I observed that these did not show transactions that any reasonable person would be expected to have on their account: no wages went into the account; no direct debits went out of the account; and this was indicative of a person who does not ordinarily reside in the country and who sought to give the appearance that he resided therein.
(f) as concerns the Applicant’s alleged employer from June 2015, ASQ Commercial Cleaning Services, I noted that no evidence had been provided of the location of any services provided by this company and, when contacted by the Gardaí, Mrs [DS]… who claims to be the Applicant’s employer, had refused to give any details of where the company conducts its business from and where [its] cleaning service[s] are provided. I noted that no relevant Revenue forms had been filed by the company. Further, there were clear inconsistencies in Mrs [DS’s]…claims, including her varying claims of address, which cast serious doubts on the veracity thereof.
(g) it was noted that the evidence that Mrs [DS]… had purported to give in support of the Applicant’s case also displayed significant inconsistencies and the Applicant and/or Mrs [DS]… had failed to prove that Mr and Mrs S [presumably Mr. AQ and Mrs. DS] is [sic] running a legitimate business.
(h) as concerns the Applicant’s flights to and from the UK, the Visa Appeal Refusals considered this evidence in detail in light of the Applicant’s comments thereon and concluded that they show that the Applicant ordinarily resides in the UK.”
III. Reliefs Sought and Complaints Made
6. In the within proceedings, Mr Ahsan seeks:
“(i) an Order for Certiorari quashing the Respondent’s decisions in the matter of the EUTR Visa applications of the Applicant’s wife…and the Applicant’s son…;
(ii) an Order awarding the Applicant damages for additional expenditure incurred arising from the Respondent’s negligence;
(iii) an Order awarding the Applicant damages for suffering arising from the Respondent’s breach of the Applicants Convention rights;
(iv) an Order for the costs of the within proceedings.”
7. The grounds for these reliefs are notably numerous, viz:
“(i) The Respondent erred in law in applying an incorrect standard of proof for such applications and the appeal of same. The decision-maker found there to be ‘serious concerns of abuse of rights’; any such findings of serious wrongdoing must be grounded upon cogent evidence which the Respondent in all the circumstances did not possess. The degree of probability required by the Respondent to ground a finding of potential abuse of rights was disproportionately low vis-à-vis the nature of the issue being investigated and the gravity of the consequences to the Applicant and his family members of such an adverse decision.
(ii) The Respondent further required the Applicant to disprove allegations of fraud and/or abuse of rights to an unrealistic standard of proof akin to beyond a reasonable doubt. The Respondent found the Applicant’s account to be ‘unconvincing’, ‘difficult to believe’, grounded on ‘insufficient evidence’ and subject to ‘huge doubt’.
(iii) Article 35 permits the State to adopt measures to refuse any right conferred by the Directive in the case of abuse of rights or fraud. However, any such measure must be proportionate and subject to procedural safeguards. The Respondent’s refusal of the within applications and appeals, on the basis of equivocal findings that ‘serious concerns of abuse of rights’ exist, constitutes a disproportionate measure.
(iv) The Respondent has denied the Applicant the procedural safeguard of an appeal as stipulated by Article 35. No clear allegation of fraud and/or abuse of rights was raised by the respondent in the first instance decision dated 7 March 2017. Concerns of abuse of rights were not expressly communicated until the appeal decision dated 20 December 2017.
(v) The Respondent acted in breach of Article 35 and/or the Applicant’s right to constitutional justice by holding back the information obtained during the investigation carried out by An Garda Síochána at first instance and thereby rendered the appeal procedure a nullity by requiring the Applicant to deal with the issues for the first time on appeal.
(vi) The Respondent erred in law by failing to disclose further new information which operated to materially change the picture before the appeal decision-maker before proceeding to make final, unappealable findings adverse to the Applicant and his family members.
(vii) The Respondent failed to have any regard to the limitations of his investigation into the Applicant’s exercise of free movement rights in this State. The Applicant entered the State on 16 March 2015; the Respondent contended that he had not commenced any significant examination of the visa applications even by October 2016. The visa officer at first instance held that the Applicant had not ‘genuinely moved his centre of life to Ireland at any stage’. The Respondent failed to give due consideration to the evidence of the Applicant that over a period of some two and a half years he proportionately spent very little time out of the State and that during the period 16 March 2015 to 15 March 2016 he was continually present in the State with two exceptions.
(viii) The Respondent failed to disclose to the Applicant and to thereby put him on notice of a concern in respect of a second UK visa application made in September 2012 and the statements made in the course of the said application.
(ix) Without prejudice to the foregoing, the Respondent considered only the Applicant’s wife’s command of the English language and failed to have any or any proper regard to the other explanations afforded for the mistakes made in the UK visa applications.
(x) The Respondent engaged in an unlawful exercise of speculation as to the true intentions behind the UK visa applications.
(xi) The Respondent failed to disclose to the Applicant and to thereby put him on notice of contradictory information obtained by the Gardaí from the property-owner of [Stated Address];
(xii) The Respondent failed to disclose the fact and products of his search of the Residential Property Price Register.
(xiii) The Respondent failed to disclose the fact and products of his search of the National Address Database.
(xiv) The Respondent failed to disclose the fact and products of his search of the Commercial Leases Register.
(xv) The Respondent failed to disclose the ‘information made available to [his] office’ presumably from the Revenue Commissioners pertaining to the tax records of ASQ Commercial Cleaning Services.
(xvi) The Respondent speculated as to the ‘behaviour of a person running a legitimate business’. It was irrational of the Respondent to suggest that there is one form of normative behaviour for each domain of human interaction. The decision-maker drew on the experience of the Gardaí.”
IV. Discussion/Conclusion
8. The court refers to its recent judgment in Khan v. The Minister for Justice and Equality [2019] IEHC 222 and does not propose to reiterate the various observations made therein concerning abuse of rights. Having regard to that judgment, the court would but make the following observations:
(a) the Minister has the right to restrict the use of free movement rights under European Union law in circumstances of abuse of rights;
(b) the impugned decision makes various findings as regards the facts and inconsistencies in, and the difficulties with, the appeals;
(c) the Minister was entitled at law, and on the evidence before him, to make the findings and reach the conclusions that he made and reached;
(d) notwithstanding that Mr Ahsan was given full and proper opportunity to address the Minister’s concerns regarding the difficulties/inconsistencies presenting in the EUTR applications, Mr Ahsan has at no stage made any meaningful effort, including in the within proceedings, to explain the inconsistencies or dispute the facts identified by the Minister;
(e) when it comes to abuses of rights, the same observations as were made by the court in Khan, at para. 5, apply, mutatis mutandis, with equal force in the within proceedings:
“5. Clearly, if…[the applicant] is engaged in an abuse of rights (as the Minister has found) then that is the end of the within application. Moreover, a judicial review application is a constrained exercise that does not involve a full appeal. In essence, the court has to find e.g., an error of fact/law, unreasonableness, or some breach of rights by the Minister in the Decision or how it was reached. The court sees no legal deficiency to present in the Decision or the process whereby it was reached: the Minister was entitled at law to reach the conclusion that he did on the evidence that was before him when the Decision was made”.
9. Freedom of movement of European Union nationals, among the greatest of the many great, and too often under-sung achievements of our wonderful European Union, has been constructed through law, can only be realised in accordance with law, and must be duly guarded by those tasked with policing/upholding the law. In this regard, the court would respectfully adopt the following observations made by counsel for the Minister in her written submissions:
“ The object of…Directive [2004/38/EC] is to facilitate the free movement of EU nationals between the Member States and in order that this object can be better fulfilled, the Directive also provides derived rights to their family members to accompany or join them. The Directive was not designed to facilitate entry by third country nationals into the European Union, although where that is the consequence of a family member moving to join or accompany an EU national who is moving between Member States it does have that effect. But that is a very different arrangement from one where the family seek to by-pass national immigration rules and enable a third-country national to enter the EU in circumstances [that the Minister lawfully found in the proper exercise of his decision-making power to be tainted by falsehood and fabrication].”
10. It follows from all of the foregoing that no legal deficiency presents in the impugned visa appeal refusals or the related decision-making process such as would justify the court in granting any of the reliefs sought. All of the said reliefs are, therefore, respectfully refused.
Reliefs refused.
Abouheikal v The Minister for Justice and Equality
(Approved) [2019] IEHC 124 (15 February 2019)
Page 1 ⇓BETWEENTHE HIGH COURTJUDICIAL REVIEWMENSHAWY ABOUHEIKALANDTHE MINISTER FOR JUSTICE AND EQUALITY[2019] IEHC 124[2018 No. 402 J.R.]APPLICANTRESPONDENTJUDGMENT of Mr. Justice Richard Humphreys delivered on the 15th day of February, 20191. The applicant is a national of Egypt, born in 1981, who has resided in the State since 2007. He was present without lawfulpermission between 2007 and 2013. He began a relationship with a Ms. K.S. who is a national of Lithuania born in 1986, and who heclaims to have been residing in Ireland since 2005, although this does not seem to have been demonstrated in any documentary orsatisfactory manner. The couple had what are described in the papers as two miscarriages, but what in fact seem to be stillbirths,one on 22nd February, 2011 and one on 29th April, 2012. On 16th May, 2012, the applicant married Ms. S. Her marital status on themarriage certificate was “divorced”. As appears from the chronology I have just referred to, the second stillbirth was just a matter ofweeks before the marriage.2. On or about 20th June, 2013 the applicant was granted a residence card as a family member of his spouse, pursuant to Councildirective 2004/38/EC. Information available to the Minister indicated that the EU citizen ceased exercising the EU Treaty rights in2013, when she worked for 26 weeks, and that she was in receipt of State benefits since 26th May, 2014. She obtainedsupplementary welfare allowance, job-seekers allowance and rent supplement. No payment was made under the heading of illnessbenefit. She was not working in 2014 or 2015 and had only eight weeks of recorded employment in 2016.3. In or around June, 2014, the couple separated. The applicant was allegedly stabbed at one point by his wife, and counsel for theapplicant indicates that some question of her capacity or mental health arose. The applicant did not inform the respondent of theseparation, contrary to reg. 11(2) of the European Communities (Free Movement of Persons) Regulations 2015. The applicant hasbeen self-employed in the State and says he has continued to provide financial support to his wife after the separation. No divorceproceedings were instituted. As of 23rd February, 2016, the wife was cohabiting with a Mr. R.K., according to records in theDepartment of Social Protection.4. The applicant travelled outside the State for a period to Abu Dhabi and was questioned on re-entry on 10th July, 2017, in thecourse of which he acknowledged to the Minister for the first time that he had separated. By letter dated 14th July, 2017 the Ministerwrote to the applicant seeking a schedule of documents relating to the continued exercise of EU Treaty rights in his case. These werenot provided. On 25th July, 2017 the applicant’s solicitors wrote to the Minister stating that while the applicant was in communicationwith his wife, she would not facilitate him with documentation. The Minister wrote on 28th July, 2017 indicating that the requireddocuments had not been furnished. On 12th October, 2017 the Minister proposed to revoke the residence card on the basis that thewife was no longer exercising her EU Treaty rights. Fifteen days were allowed for submissions, which were made on 2nd November,2017. On 15th January, 2018 the residence card was revoked.5. On 14th February, 2018 the applicant applied for a review of that decision. The review decision was issued on 11th April, 2018 andupheld the original revocation. The dates of the wife’s benefit claims are somewhat finessed in the review decision as against theoriginal proposal. A proposal to deport the applicant was made on 11th April, 2018.6. In previous proceedings, Menshawy Abouheikal v. Minister for Justice and Equality [2018 No. 269 J.R.] the applicant sought interalia an order of mandamus compelling the Minister to issue him with a permission to reside in the State pending the determination ofhis application for a review. I granted leave on 9th April, 2018 but those proceedings were overtaken by the review decision on 11thApril, 2018, and the first judicial review was struck out as moot with no order as to costs.7. I granted leave in the present proceedings on 17th May, 2018, and on 21st January, 2019 allowed an amendment to the statementof grounds to reflect the correct social welfare benefits which were being claimed by the wife. I have received helpful submissionsfrom Mr. Ian Whelan B.L. for the applicant and from Ms. Emily Farrell B.L. for the respondent.The right to reside of EU nationals8. The case contains the implementation of directive 2004/38/EC and the European Communities (Free Movement of Persons)Regulations 2015. Any rights of the applicant as a separated spouse are derivative on those of his estranged wife. Directive2004/38/EC provides certain conditions for rights of residence in excess of three months including that the EU citizen is a worker orself-employed or a student or alternatively that they “have sufficient resources for themselves and their family members not tobecome a burden on the social assistance system of the host member state during their period of residence” (art. 7(1)(b) and“have comprehensive sickness insurance cover in the host Member State” (art. 7(1)(c)). A person moving for the sole purpose ofclaiming benefits does not have the right to reside (see Case C-333/13 Elisabeta Dano and Florin Dano v. Jobcenter Leipzig (11thNovember, 2014)). A member state may impose a right to reside condition on eligibility for social welfare benefits (see Case C-140/12Pensionsversicherungsanstalt v. Peter Brey (19th September, 2013)). A person genuinely seeking work after the end of theemployment relationship may be a worker (see Case C-379/11 Caves Krier Frères Sàrl v. Directeur de l’Administration de l’emploi(13th December, 2012)), although such a person is not necessarily entitled to social assistance beyond a limited period (see Case C-67/14 Jobcenter Berlin Neukölln v. Nazifa Alimanovic and Others (15th September, 2015)). A person may retain their status as aworker if unable to work due to illness (see art. 7(3)(a) of the directive).9. The relevant provisions of the directive are given effect to in the 2015 regulations, in particular reg. 6(3)(a) which provides that anEU citizen “to whom [the relevant regulations apply] may reside in the State for a period that is longer than 3 months if he or she (i)is in employment or in self-employment in the State, or (ii) has sufficient resources for himself or herself and his or her familymembers not to become an unreasonable burden on the social assistance system of the State, and has comprehensive sicknessPage 2 ⇓insurance in respect of himself or herself and his or her family members”, as well as other conditions that do not apply here.Paragraph (c) provides that: “Where a person to whom subparagraph (a)(i) applies ceases to be in the employment or self-employment concerned, that subparagraph shall be deemed to continue to apply to him or her, where -…(ii) he or she is in dulyrecorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with arelevant office of the Department of Social Protection, (iii) subject to subparagraph (d), he or she is in duly recorded involuntaryunemployment after completing a fixed-term employment contract of less than a year, or after having become involuntarilyunemployed during the first year, and has registered as a job-seeker with a relevant office of the Department of Social Protection…”. Sub-paragraph (d) provides that: “In a case to which subparagraph (c)(iii) applies, subparagraph (a)(i) shall be deemed to applyto the person concerned for 6 months after the cessation of the employment concerned only, unless the person enters intoemployment or self-employment within that period.”Ground 1 – lack of reasons10. Ground 1 of the statement of grounds alleges that “the Respondent erred in fact and in law, acted unreasonably and irrationally,acted disproportionately and breached the principles of fair procedures and natural and constitutional justice and EU law in failing toprovide reasons for the decision arrived at. In particular the Respondent failed to provide any lawful reason for the finding that theApplicant had failed to demonstrate the fact that his EU citizen spouse had resided in the State in exercise of her rights of freemovement pursuant to EU law in circumstances where she is in receipt of jobseekers allowance/ unemployment benefit … and isthus unavailable for employment and in circumstances where her ability to reside in the State with sufficient resources to so do isfacilitated by payments made to her by the Applicant.”11. Insofar as the allegation of a lack of reasons is concerned, the punchline of the covering minute for the impugned decision is that“no further evidence has been submitted to indicate that the EU citizen is exercising her EU Treaty rights in the State” (Minute of11th April, 2018). The recommendation submission provides considerably more detail, noting that the EU citizen was not employed,apart from a brief period since 2013, and noted that “the Minister was of the opinion that the EU citizen was no longer residing in theState in exercise of her EU Treaty rights”. The decision noted the onus on the applicant and the applicant’s failure to providedocumentation. Thus, the decision here involves two reasons:(i). a rejection due to the applicant’s failure to provide documents, both in relation to himself and also from his spouse;and(ii). the decision contains a positive statement that the Minister’s view is that the wife is not exercising EU Treaty rights.12. I do not therefore accept that there is a lack of reasons. Reasons are stated. They may be valid or not, but that arises underground 2.Ground 2- irrationality or unlawfulness13. Ground 2 pleads that “the respondent erred in fact and in law, acted unreasonably and irrationally, acted disproportionately andbreached the principles of fair procedures and national and constitutional justice and EU law in determining that the EU citizen hadnot resided in the State in exercise of her rights of free movement. This finding was not open to the respondent to reach on thefacts of the case as presented and in particular where the applicant spouse is in receipt of job seekers allowance/unemploymentbenefit and has not at any time been faced with any proceedings to remove her from the State. The respondent was charged withthe assessment of the lawfulness of the applicant’s residence in the State the finding that the applicant was unlawfully resident inthe State is one which is not open to the respondent to arrive at on the basis of the case before him and is entirely inconsistentwith the respondent’s positon as regards the applicant’s spouse’s position in the State where no steps have been taken to removethe applicant’s spouse from the State and where she is in receipt of jobseeker’s allowance/unemployment benefit which would not bepayable to her in the event that she was not lawfully resident in the State and the decision is invalid.”14. While the ground is phrased in general terms, a fair reading of it in the light of the submissions made is that only three specificillegalities are identified, namely:(i). failure to remove the wife from the State,(ii). inconsistency with the Department of Social Protection having granted the wife benefits and(iii). failure to make a positive determination as to what the wife’s actual status is.Minister’s failure to remove the wife from the State15. As far as the issue of there being no steps having been taken to remove the wife from the State, that does not render hersituation one of exercising EU Treaty rights if she is not otherwise exercising them. I would therefore uphold the point made in para.13 of the statement of opposition that the fact that the Minister has not made a proposal to remove the wife is not evidence thatshe is exercising EU Treaty rights.Alleged inconsistency with the Department of Social Protection approach16. As far as receiving benefits is concerned, to obtain social welfare benefits one has to be habitually resident in the State (see s.141(9) of the Social Welfare Consolidation Act 2005 regarding jobseeker’s allowance). To be habitually resident, one has to be lawfullyresident (see s. 246(1) and (5)). Similar conditions apply to other benefits. It is clear from the review decision that the wife wasn’tclaiming social welfare benefits as of the date of that decision. The applicant certainly has not proved otherwise. An application ofthe conditions in reg. 6(3) of the 2015 regulations to the facts as found by the Minister shows that the wife does not qualify forsocial welfare benefits. Insofar as the material before the Minister was concerned, she was not in employment for one year and didnot re-enter employment within six months of the end of the previous employment. The logic of that is that she ceased to exerciseher EU Treaty rights six months from the end of the initial period of employment. The exact date she ended work in 2013 is notstated, but the loss of rights would have been mid-2014 at the latest. She entered into employment again in 2016. That restarted theclock, so she would have ceased to exercise such rights again by mid-2017 at the latest. The proposal to revoke was not issued untilOctober, 2017.17. Turning to the social welfare aspect, it is accepted that it would appear as a corollary of the Minister’s positon as to the wife’sentitlements here, that the Department of Social Protection was making payments to which the wife was not entitled. One wonders ifthere is any way to avoid such situations in future, either by greater consultation with the Department of Justice and Equality orperhaps preferably by the Department of Social Protection more systematically and correctly applying the requirements of the 2015Page 3 ⇓regulations.Failure to specify the exact status of the wife18. It was argued that the Minister did not make a finding as to the exact legal status of the wife, so he could not lawfully make afinding in respect of the derived right. However, I would uphold the Minister’s position that he is not obliged to articulate a concludedview of her status. His position is that he is not aware of lawful status but there may be other factors he is not aware of, nor is heobliged to seek to remove her even if she is there unlawfully. The Minister’s broad discretion in immigration terms means he is allowedto tolerate ambiguous situations if he is so minded.19. Mr. Whelan suggested that I should make a reference to the Court of Justice of the EU on the question of whether the principle ofeffectiveness would impose a requirement on the Minister to make a finding on the EU spouse’s status in the absence of a system ofregistration as envisaged by art. 8 of the directive, before terminating the derived right of a non-EU national. Given the discretionarynature of the art. 8 system and the fact that the State is entitled either to put in place such a system or not to do so, there seemsto be minimal basis for any suggestion that there could therefore be an EU law obligation to make a positive finding as to the wife’sstatus, which is not something envisaged by the directive. In any event, as Ms. Farrell pointed out under this heading, a registrationsystem, even if it existed, would only be evidence of the state of affairs as of the date on which the registration occurred and wouldnot be decisive or necessarily even helpful in answering a question of the kind that has occurred here, namely whether the EU citizenwas still exercising EU Treaty rights on the basis of different facts at a remote period in time subsequent to commencing theirpresence in the State.Minister’s alleged lack of entitlement to require the applicant to seek documents from an estranged spouse20. A further point was made that was not pleaded, namely a lack of entitlement on the part of the Minister to require the applicantto obtain documents from an estranged spouse. I will deal with that for completeness, albeit that as it was not properly pleaded theapplicant cannot succeed on that point anyway.21. On these facts, the applicant has not demonstrated a great deal in way of effort to provide such documentation, albeit that hedid very recently write to the wife in that regard. If he had provided more than the rather sketchy information he has done, andshown more tangible efforts, he might have standing to make this point even if he had pleaded it. The Minister is entitled to decidethe application on the basis of the material before him (see by analogy A.M.Y. v. Minister for Justice, Equality and Law Reform[2008] IEHC 306 (Unreported, Hedigan J., 9th October, 2008)). Insofar as the Minister wrote requesting documents from the applicant, he didnot even provide those relating to himself. Much important documentation was not exhibited, for example the marriage certificate.Likewise, failure by the Minister to disclose relevant information within the power, possession or procurement of the Minister is notspecifically pleaded in the statement of grounds. At the same time, there may be an element of difficulty in obtaining information froma spouse post-relationship breakdown, but that issue can best be left to a case where it properly arises. However, there is nothing tosuggest that such documents would have made a fundamental difference on the facts of this particular case because the socialwelfare information clearly indicated that the wife was not currently exercising EU Treaty rights. For good measure, reg. 16 of the2015 regulations entitles the Minister to require a person to provide evidence that the person satisfies the requirements of theseregulations. That power is not confined to requiring such evidence from an EU national.Conclusion and order22. The impugned decision, as with any administrative decision in normal circumstances, attracts a presumption of validity: see Markde Blacam, Judicial Review, 3rd ed. (Dublin, 2017) p. 113, referring to In Re Comhaltas Ceoltoirí Éireann (Unreported, High Court,Finlay P., 5th December, 1977), Campus Oil v. Minister for Industry and Energy (No. 2) [1983] I.R. 88 and The State (Divito) v.Arklow Urban District Council [1986] I.L.R.M. 123. While the applicant’s evidence supports the view that there was reality to themarital relationship, and that the couple suffered two stillbirths, and while the evidence also indicates some inconsistency betweenthe approach of the Department of Justice and Equality and the Department of Social Protection, with the latter as a matter ofprobability failing to properly apply the 2015 regulations, nonetheless the law is clear that there are conditions for exercising EUTreaty rights which the applicant has not demonstrated are complied with here, so the decision has therefore not been shown to beunlawful.23. Consequently, and albeit without much enthusiasm, I will dismiss the application.
Lingurar -v- The Minister for Justice, Equality and Law Reform
[2018] IEHC 96 (08 February 2018)
Judgment
Title:
Lingurar -v- The Minister for Justice, Equality and Law Reform
Neutral Citation:
[2018] IEHC 96
High Court Record Number:
2017 819 JR
Date of Delivery:
08/02/2018
Court:
High Court
Judgment by:
Humphreys J.
Status:
Approved
[2018] IEHC 96
THE HIGH COURT
JUDICIAL REVIEW
[2017 No. 819 J.R.]
BETWEEN
MARIAN LINGURAR
APPLICANT
AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT
JUDGMENT of Mr. Justice Richard Humphreys delivered on the 8th day of February, 2018
1. The applicant is a Romanian national who entered the State in 2002. Numerous members of his family reside here, including his mother, wife and two children. He first came to the attention of Gardaà on 17th November, 2006, and has amassed a total of fourteen convictions in the State. Among the offences committed include handling items stolen from graves of babies, children and young people who died in tragic circumstances. In relation to that matter His Honour Judge Rory McCabe said this had been a “mean, nasty and upsetting series of thefts”, before imposing a three year sentence.
2. On 25th September, 2011, Mr. John Kenny, proprietor of Kenny’s Bar in Co. Galway, was tied up in his own pub and beaten in that restrained state so severely that he died of blunt force trauma to his body. His body was discovered by his wife and daughter the day after the murder, lying face down in the pub. The State’s case was that the applicant was part of a group of people who set about robbing Mr. Kenny, and that the applicant drove three other people from Galway to the public house and back again. The applicant and his son were arrested for murder but no admissions were made. He was charged with manslaughter and received bail, which he complied with for a time but then left the jurisdiction. He was arrested in France on a European arrest warrant and was returned compulsorily to Ireland. He was duly tried, but shortly after the trial began the D.P.P. withdrew the manslaughter charge and accepted a plea of guilty of withholding information.
3. On 30th April, 2015, he was sentenced to four years imprisonment. On 30th March, 2017, the Minister proposed to make a removal order and an exclusion order against the applicant following representations. Those orders were made on 12th July, 2017. A review was sought, but on 4th October, 2017, the decisions were affirmed. The applicant now seeks judicial review in respect of that affirmation decision.
4. The day before this case was originally due to be heard, Baker J. decided in Sweeney v. Ireland [2017] IEHC 702 (Unreported, 23rd November, 2017) that s. 9(1)(b) of the Offences Against the State (Amendment) Act 1998 was unconstitutional.
5. I have received submissions from Mr. Paul O’Shea B.L. (with Mr. Colman FitzGerald S.C.) for the applicant and Ms. Siobhán Stack S.C. (with Ms. Grace Mulherin B.L.) for the respondent.
6. Mr. O’Shea summarised his case under four headings:
(i). Firstly, that there was unfair consideration of unproven allegations and that conduct attributed to the applicant was such that he was not convicted of.
(ii). Secondly, there was no proper assessment of the best interest of the child under the Constitution, European Convention on Human Rights and the EU Charter of Fundamental Rights, and that under EU law the entitlement to consideration of best interests is “an absolute right”.
(iii). Thirdly, that he was not provided with an effective remedy and that to that extent the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548/2015) are incompatible with the directive.
(iv). And fourthly, that the Minister is not entitled to rely on the offence of withholding information in executing the removal and exclusion orders because that offence is unconstitutional.
Allegation of unfair consideration of unproven allegations
7. Mr. O’Shea complains that the applicant is “innocent” in connection with the death of Mr. Kenny and that there was no finding by a court that the applicant was involved in Mr. Kenny’s death. The decision-maker on review notes the conviction for withholding information rather than manslaughter, and notes the submission that he was treated as having a role far higher than that to which he pleaded guilty. The Minister concludes that “the seriousness of Mr. Lingurar’s involvement in the injured party’s death was reflected in the prison sentence he received”. This is a totally reasonable finding. The offence to which the applicant pleaded guilty in the circumstances clearly placed him as having an “involvement in the robbery (that) led to the murder of an innocent victim”, as it is put in the decision. The decision-maker does not specifically go beyond the clear finding of an “involvement”, which is totally justified in the circumstances given the plea to withholding information. Such a plea implies that the applicant was in possession of information regarding the murder, which he wrongfully withheld.
8. A subsidiary point is made that the decision-maker treated the applicant as if he was guilty of theft rather than of handling stolen property. There is no substance whatsoever to that point. The applicant has convictions for both theft and handling stolen property. The decision quotes a newspaper report regarding the conviction for handling stolen goods so it cannot be said that the Minister misunderstood the factual situation in relation to those offences. No injustice was done to the applicant in the manner in which his offending was described. Nor is handling stolen property to be regarded as merely a minor matter compared to theft proper.
Alleged failure to give proper consideration to the best interests of the child
9. Mr. O’Shea says there was no meaningful consideration of the best interests of the child and claims that this is contrary to the Constitution, the ECHR and the EU Charter, in particular art. 24(2) of the latter instrument. However, he accepts that no submissions whatsoever were made on best interests at the review stage. The context for judicial review must begin with the actual submission made to the decision-maker (see I.S.O.F. v. Minster for Justice, Equality and Law Reform [2010] IEHC 457 (Unreported, Cooke J., 17th December, 2010)). Thus, the point made fails in limine and is a pure post hoc reconstruction. Mr. O’Shea claims that there is an obligation to consider points not made to the Minister. There is no such obligation.
10. Mr. O’Shea originally argued that the first submissions referred to the best interests of the child. Unfortunately that is not the case, as he now accepts. Those submissions referred to arts. 24 and 47 of the Charter by reference to art. 24(3) in particular, in respect of a right to maintain a personal relationship and direct contact with both parents; rather than the child’s best interests. There is no express reference to art. 47(2) which relates to such best interests.
11. Mr. O’Shea claims that best interests are an absolute right. That is a totally misconceived submission. The best interests of the child are a major consideration but can be outweighed by other factors, as here (see also Ãœner v. The Netherlands (Application no. 46410/99, European Court of Human Rights, 18 October 2006). Mr. O’Shea makes the equally misconceived point that art. 24(3) of the Charter needs to be subject to an expressed statutory limitation, failing which it must be regarded as absolute under art. 52(1) of the Charter. That is just not how law works, either for Irish or European purposes. If and to the extent that the decision amounts to a limitation on the rights of the child for the purposes of art. 24(3) of the Charter, then that decision is “provided for by law” for the purposes of art. 52(1) because it is made under the legal framework of the State.
12. The decision notes that the Department did not receive any representations from members of the family: see p. 11 of the analysis, which says that his criminal behaviour raises the question of the stability of his day to day family life and his suitability as a parental guardian. That seems to be a legitimate point in the context. It says at p. 12 that no further information is provided in relation to the son. It goes on to say that the relationship could be maintained with the family even with an exclusion order, and also that the wife could relocate to Romania. That again is a valid option. It is her decision whether to relocate or not.
13. The decision-maker also says that it cannot be said that the family are financially dependent on the applicant. Again, that seems a reasonable point given the incarceration of the applicant. It says there is no alternative, less restrictive process which would achieve the pressing social need in the case. Again, that seems to me to be a totally reasonable finding. The disproportionality argument is of no substance whatsoever.
14. Insofar as the point is made regarding the child’s rights under the Constitution or the ECHR, the Minister’s view clearly was that any family rights were outweighed by the “pressing social need” to remove and exclude the applicant. That is clearly a lawful finding. The weighing of factors is a matter for the decision-maker (see P.R. v. Minister for Justice and Equality [2015] IEHC 201 (Unreported, High Court, McDermott J., 24th March, 2015), Smolka v. Minister for Justice and Equality [2016] IEHC 641 (Unreported, O’Regan J., 8th November, 2016), D.S. v. Minister for Justice and Equality [2015] IEHC 643 (Unreported, McDermott J., 20th October, 2015) G.C. v. Minister for Justice and Equality [2017] IEHC 215 (Unreported, O’Regan J., 4th April, 2017)). It is clear that there is an entitlement to hold that a threat to public policy outweighs family rights (see Kovalenko v. Minister for Justice and Equality [2014] IEHC 624 (Unreported, McDermott J., 12th December, 2014) para. 58).
Alleged lack of an effective remedy
15. The review of a removal and exclusion order is a complete ex nunc examination of fact and law, which is the gold standard as set out in art. 46(3) of the recast Procedures Directive (Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection), which does not apply to Ireland (see N.O. v. Minister for Justice and Equality [2016] IEHC 735 (Unreported, O’Regan J., 24th November, 2016). Such a procedure unquestionably constitutes an effective remedy (see also Balc v. Minister for Justice and Equality (No. 1) [2016] IEHC 47 (Unreported, High Court, 19th January, 2016)). The availability of judicial review puts this beyond doubt (see N.M. (DRC) v Minister for Justice [2016] IECA 217 [2016] 2 I.L.R.M. 369). The applicant’s attempt to reargue this point (already the subject of adverse decided caselaw) was wholly unconvincing.
16. Mr. O’Shea claims that the applicant is entitled to an order that his removal is unlawful, and that a decision cancelling the removal and exclusion orders, which would be available on review, would be insufficient. That is, I am afraid, an absurd argument because if the order is set aside on review the applicant’s presence in the State is as lawful or unlawful as it was prior to the removal and exclusion order being made. But even if, in some wholly imaginary parallel universe, an effective remedy under EU law required an affirmative declaration of lawfulness following the cancellation of the decision complained of so as to put him in a better position than he was before the decision was made, he can get that from the High Court. The fact that the High Court does not substitute its own findings of fact for those of a decision-maker in a certiorari or mandamus context does not (on fairly rudimentary principles) prevent the court from granting a declaration if required to do so by EU law. Mr. O’Shea sought to rely on judgment Nr. 1/2014 of 16th January, 2014 of the Belgian Constitutional Court. However, para. B(6)(2) of this judgment makes it clear that review by the Council of Aliens in that case was not a full ex nunc review, so there is no analogy whatsoever with the present case. Review of a removal or exclusion order is completely effective as a remedy.
17. After the best part of a decade of litigation on the extent of an effective remedy in subsidiary protection, this case seems to be an attempt to get some sort of equally endless litigation underway on the right to an effective remedy against removal orders. There is simply no stateable point whatsoever here. Review of such orders is a full review and gives the applicant anything he could want. The point being made is beyond specious.
Alleged lack of entitlement to rely on the conviction for withholding information
18. The applicant pleaded guilty to withholding information prior to the declaration of unconstitutionality in relation to that offence. Therefore the conviction stands (see A. v. Governor of Cloverhill Prison [2005] IEHC 483 [2008] 1 IR 43). Thus, the Minister is entitled to rely on it.
Order
19. The action will therefore be dismissed.
Subhan & Anor v The Minister for Justice and Equality & Ors
[2019] IECA 330 (19 December 2019)
Page 1 ⇓Baker J.Whelan J.McGovern J.BETWEEN/THE COURT OF APPEALNeutral Citation Number: [2019] IECA 330Appeal No.: 2018/362SHEHARYAR RAHIM SUBHAN AND ASIF ALIAPPLICANTS/APPELLANTS- AND -THE MINISTER FOR JUSTICE AND EQUALITYRESPONDENTJUDGMENT of Ms Justice Baker delivered on the 19th day of December, 20191. This appeal concerns the test under the European Communities (Free Movement ofPersons) (No. 2) Regulations 2006 (S.I. No. 656 of 1990), as amended (“the 2006Regulations”) implementing Directive 2004/38/EC on the Right of Citizens of the Unionand Their Family Members to Move and Reside Freely Within the Territory of the MemberStates, O.J. L158/77 30.4.2004 (“the Citizens Directive”), by which a person is assessedas being a “permitted family member” of a Union citizen for the purposes of the grant ofpermission to enter and remain in the State.2. The appeal is from the order of Keane J. made on 31 July 2018 following delivery of awritten judgment, Subhan v. Minister for Justice and Equality [2018] IEHC 458, by whichhe refused to grant judicial review of a decision of the Minister for Justice and Equality(“the Minister”) made on 15 August 2016 refusing the application of Mr Ali, the secondappellant, for a residence card pursuant to the provisions of the 2006 Regulationsimplementing article 3 of the Citizens Directive.3. The purpose of the Citizens Directive is set out in some detail in the recitals and will beconsidered below, but in essence it can be said to have been adopted to support the rightof free movement and residence of Union citizens and of their family members. Infurtherance to such objective, the Directive imposes obligations on Member States tofacilitate the right of extended family members of Union citizens irrespective of theirnationality to also move and reside freely, which derives from the right of Union citizensto maintain the unity of the family in a broader sense.4. The 2006 Regulations implemented the Directive and provide in domestic law for themeans by which a Union citizen and his or her family member may enter and reside in theState.Factual BackgroundPage 2 ⇓5. Mr Subhan and Mr Ali were both born in Pakistan. Mr Subhan was born in 1978, he movedto the United Kingdom with his parents in 1997 and became a naturalized British citizenon 8 February 2013. He moved to Ireland in January 2015, was employed thereafter for afew months, and since October 2015 has been self-employed within the State. After hecame to reside in Ireland he married a woman who is a Pakistani citizen and who, at thetime of the High Court proceedings, resided in Peshawar, Pakistan, and it would appearshe continues to so reside.6. Mr Ali is the first cousin of Mr Subhan and was born in 1986. The two first cousins werebrought up in the same family compound in Peshawar until Mr Subhan moved to theUnited Kingdom when his young cousin was eleven.7. Mr Ali has a third level degree in economics from a university in Pakistan, and in 2010 hetravelled to the United Kingdom on a four-year student visa where he pursued a course inaccountancy and, later, business administration. While he was studying he resided withhis cousin and his cousin’s parents and other siblings in a house owned by Mr Subhan’sbrother. Mr Subhan and Mr Ali entered into a joint tenancy agreement for one yearcertain with that brother on 11 February 2014, some four years after Mr Ali came toreside in the United Kingdom, and less than an year before Mr Subhan came to reside inthe State.8. Mr Ali’s permission to remain in the United Kingdom as a student expired on 28 December2014 and some ten weeks later, on 5 March 2015, he unlawfully entered the Statewithout a visa by travelling through Northern Ireland. He went to reside with his cousin inhis home in a provincial town.9. On 24 June 2015, Mr Ali applied for an EU residence card as a permitted family memberof Mr Subhan in which he claimed that he was dependent upon Mr Subhan and was, forthe purposes of the 2006 Regulations, a member of his household in the country fromwhich he had come, the United Kingdom.10. By a decision issued on 21 December 2015, the Minister refused his application for aresidence card. A review was sought of that decision and the decision of the reviewcommunicated by letter of 15 August 2016 to Mr Ali states the following:“The Minister has examined the supporting documentation submitted in support ofyour application for residence in the State under EU Treaty Rights. I am to informyou the Minister is satisfied that you have not established that you are in factdependent [on] the EU citizen Sheharyar Rahim Subhan. In respect of yourresidence in the United Kingdom you have provided evidence that you resided atthe same address as the EU citizen Mr Subhan, however, you have not establishedthat the EU citizen was in fact the head of that household in the United Kingdom.”11. Early in the letter, the Minister had stated that Mr Ali had failed to submit satisfactoryevidence that he was a family member of the Union citizen and set out theuncontroverted facts which have been broadly outlined above.Page 3 ⇓12. The application for judicial review was grounded on an affidavit of Mr Subhan and one ofMr Ali both sworn on 8 September 2016. The trial judge took the view that the replyingaffidavit of Garrett Byrne sworn on 10 August 2017 had impermissibly sought to clarifythe reasons for the decision of the Minister, and it seems to me that trial judge was rightto assess the correctness of the decision on its own terms, as he stated in para. 56, andthat approach was not seriously in contention in the appeal.13. The affidavit of Mr Subhan set out that he had lived in the United Kingdom for fifteenyears before he was naturalised there in February 2013, that he is married to a Pakistanicitizen since February 2016, and that she continues to reside in Pakistan. He says that hemoved to Ireland in January 2015 for employment in the IT sector, and that he had been,since October 2015, self-employed in a business importing and selling mobile phoneaccessories, a business he previously operated from his principal private residence in amidlands town. That business is now run from a storage centre in an industrial estate inDublin city.14. In para. 6 of his affidavit, Mr Subhan avers to the financial support that he afforded to hisfirst cousin, Mr Ali, and that he was dependent upon him for all his living expenses andcollege fees whilst they lived under the same roof in London between July 2010 andJanuary 2015. He says it was “expected of me by my family in Pakistan to look after mycousin”. He says he, his parents, his brother, and his sister lived with Mr Ali in a housewhich was owned by one of his brothers.15. Mr Subhan says that his move to Ireland was “specifically for employment purposes”, andthat since Mr Ali came to reside with him in Ireland in March 2015, he is “fully and totallydependent” upon him. With regard to the test that Mr Ali was part of his “household” inLondon, he avers that it was he and he alone who had responsibility for looking after andfinancially supporting his cousin, that his brother, who owned the house, was in factspending more time in Pakistan than in London, and that his parents are elderly, and hisfather retired from employment. He says he was the only person in the householdworking and the only person paying household utility bills.16. In his verifying affidavit of 8 September 2016, Mr Ali avers he is unemployed. He exhibitscopies of receipts for seven money transfers to Mr Ali between 3 February 2009, when MrAli was approximately 22 years old, and 13 May 2010, when Mr Ali was 24, amounting inthe aggregate to £4,675 over that fifteen-month period. For the greater part of the fouryears Mr Ali spent in the United Kingdom studying accounting and businessadministration, he says he did not have a bank account and that his cousin, Mr Subhan,covered his rent, paid for his studies, and gave him money for his general livingexpenses.17. In November 2014, Mr Ali opened a building society account in the United Kingdom intowhich Mr Subhan made four transfers, totalling £700, between 6 November 2014 and 13January 2015, and Mr Ali’s account statements are exhibited.Page 4 ⇓18. The trial judge set out these payments in detail and made observations on them in para.64 et seq. of his judgment.First instance decision19. The Irish Naturalisation and Immigration Service (“INIS”), by its letter of 21 December2015, informed Mr Ali that the Minister had decided to refuse his application for aresidence card for the reasons set out, and it is useful to summarise these:(i) a failure to provide satisfactory evidence that Mr Ali was a family member of theUnion citizen, a member of his household, or dependent upon him in the mannerprovided in the 2006 Regulations;(ii) that the Union citizen obtained United Kingdom citizenship in February 2013 andthat, therefore, the time Mr Ali and he resided together for material purposes is lessthan two years. This observation is presumably to take account of the caselaw and,in particular, the decision in Moneke v. Secretary of State for the Home Department[2011] UKUT 341, [2012] INLR 53, that what is to be assessed is the livingarrangements of the Union citizen since that person became an Union citizen,wheresoever this occurred;(iii) that the Union citizen’s father, brother, and sister shared the same address, andthat whilst documentation did show that Mr Ali and Mr Subhan shared a mutualaddress, this was not sufficient to demonstrate that Mr Ali was a member of thehousehold of the Union citizen;(iv) that the bank statements submitted did not explain Mr Ali’s financial dependencebetween 2010, the date on which the last direct transfer of funds was made, andNovember 2014;(v) that there was a failure to provide satisfactory evidence that the Union citizen’sbusiness was actively trading in the State and, thus, that the Union citizen wasexercising EU rights;20. That decision was appealed, and further documentation and information furnished. Theargument made was that Mr Subhan provided cash payments to his first cousin whilstthey resided under the same roof in London and that he paid all bills, including rent of thehousehold. Evidence of transfers of money to Mr Ali from October 2014 for a period ofthree months up to the time Mr Subhan moved to Ireland was also furnished. A recentstanding order directed to a newly opened account of Mr Ali in Ireland was also shown.21. It is not in dispute that Mr Ali has to show that he was a member of the household of hisfirst cousin in the United Kingdom before his first cousin exercised his EU Treaty rights,and that he was dependent upon him there. The decision of Moneke v.Secretary of Stateis clear regarding the geographical nexus and no argument was made in the course of thepresent appeal or before the High Court that the relevant dependency may take placewithin Ireland.Page 5 ⇓22. By letter of 15 August 2016, Mr Ali was informed that his review had been unsuccessful.23. It was in that letter that the expression “head of the household” appeared and theMinister’s decision was based, inter alia, on the fact that Mr Ali had not provided evidencethat Mr Subhan was, in fact, the head of the household in which he and Mr Ali resided inthe United Kingdom. There is no contest regarding the fact that the first cousins livedunder the same roof. With regard to the fact of dependence, the letter is curt and merelysays that the Minister was not satisfied that Mr Ali was, in fact, dependent on his firstcousin, the Union citizen.The Citizens Directive24. The Citizens Directive recites as its purpose the conditions governing the exercise of theright of free movement within the territory of Member States by a Union citizen and theirfamily members and provides the framework within which permanent residence in theterritory of a Member State for Union citizens and their family members is to beconsidered.25. Recital 1 of the Citizens Directive provides that the right to move and reside freely withinthe territory of the Member States is a “primary and individual right” of every citizen ofthe Union, subject to the limitations and conditions laid down in the Treaties. The broadprinciple of free movement is described as constituting “one of the fundamental freedomsof the internal market”, an area “without internal frontiers”, and recital 5 of the CitizensDirective provides that the proper exercise of the right to move and reside freely withinthe territory of other Member States means the right should also be granted to theirfamily members irrespective of nationality:“The right of all Union citizens to move and reside freely within the territory of theMember States should, if it is to be exercised under objective conditions of freedomand dignity, be also granted to their family members, irrespective of nationality.”26. Recital 8 makes reference to “facilitating the free movement of family members who arenot nationals of a Member State.”27. Recital 10 notes the need to reconcile a number of competing interests, including theundesirability that persons exercise their right of residence becoming an “unreasonableburden on the social assistance system of the host Member State”.28. Recital 17, having noted that the enjoyment of permanent residence by Union citizenswho have chosen to settle long term in a host Member State “would strengthen thefeeling of Union citizenship and is a key element in promoting social cohesion”, providesthat a right of permanent residence should be laid down for all Union citizens and theirfamily members subject to the conditions in the Directive.29. The scheme of the Citizens Directive provides for a different approach to family membersand extended family members. Family members who come within the definition in article2(2) of the Directive are afforded the right of entry and residence in the Union citizen’shost Member State, provided certain conditions are met. A family member, in that sense,Page 6 ⇓is a spouse, a civil partner, a direct descendant under the age of twenty-one, ordependent, and those of the spouse or partner, and any dependent direct relatives in theascending line of the Union citizen and of the spouse or partner.30. The present case concerns the category of permitted family members who do not comewithin the definition of “family member” in article 2 of the Citizens Directive, and whoseapplication for entry and residence in the host Member State is to be facilitated, but whocannot be said to have a right of entry or to remain. Article 3(2) of the Citizens Directiveis the focus of the present appeal, and it is convenient to quote it in full:“Without prejudice to any right to free movement and residence the personsconcerned may have in their own right, the host Member State shall, in accordancewith its national legislation, facilitate entry and residence for the following persons:(a) any other family members, irrespective of their nationality, not falling underthe definition in point 2 of Article 2 who, in the country from which they havecome, are dependants or members of the household of the Union citizenhaving the primary right of residence, or where serious health groundsstrictly require the personal care of the family member by the Union citizen;(b) the partner with whom the Union citizen has a durable relationship, dulyattested.The host Member State shall undertake an extensive examination of thepersonal circumstances and shall justify any denial of entry or residence tothese people.”31. It is common case that Mr Ali is not a family member within the definition of article 2 ofthe Citizens Directive and that, if he has any rights to be considered under the Directive,they arise if he can properly be considered to be a family member who was dependentupon, or a member of the household of the Union citizen, Mr Subhan.32. The Citizens Directive was given effect in this jurisdiction by the 2006 Regulations and itmakes a distinction between a “qualifying member” and the category relevant to thepresent case, a “permitted family member”. The definition of a permitted family memberunder r. 2(1) of the 2006 Regulations is central to this appeal:“permitted family member”, in relation to a Union citizen, means any familymember, irrespective of his or her nationality, who is not a qualifying familymember of the Union citizen, and who, in his or her country of origin, habitualresidence or previous residence -(a) is a dependant of the Union citizen,(b) is a member of the household of the Union citizen,(c) on the basis of serious health grounds strictly requires the personal care ofthe Union citizen, or(d) is the partner with whom the Union citizen has a durable relationship, dulyattested” (emphasis added).Page 7 ⇓33. Mr Ali claims that he is a permitted family member of his Union citizen first cousin as he isdependent upon his first cousin and is a member of his household. He claims, in thosecircumstances, to be entitled to the benefit of r. 5 of the 2006 Regulations, and to beentitled therefore to enter the State and to apply for a residence card.34. Keane J., having considered the evidence and arguments, concluded that Mr Ali wasneither dependent upon the Union citizen, his first cousin, nor was he a member of hishousehold. He found persuasive a number of decisions of the Courts of England andWales and of the Immigration and Asylum Chamber of the Upper Tribunal. In the courseof this judgment I will refer to these in greater detail.The grounds of appeal35. The notice of appeal identifies six numbered grounds of appeal, which can be summarisedas follows:1) that the trial judge erred in interpreting the meaning of the term “members of thehousehold of the Union citizen” in the definition of “permitted family member”found in the 2006 Regulations (grounds 1, 2, 3, 4 of the notice of appeal);2) that the trial judge erred in concluding that the Minister had given sufficientreasons for the conclusion that Mr Ali was not dependent on his first cousin (ground6 of the notice of appeal);3) that the trial judge erred in concluding that the Minister had properly “facilitated”the application in accordance with article 3(2) of the Citizens Directive and,specifically, erred in his conclusion that the Minister did not fail to provide guidanceas to the type of information required to establish either dependency ormembership of a household (ground 5 of the notice of appeal).36. The notice of opposition denies that the trial judge erred, whether in law or in fact, andthat the phrase “member of the household” of the Union citizen found in the CitizensDirective and the 2006 Regulations is to be given its normal meaning, connoting that thehousehold is the household of that person and that persons living together under thesame roof are, by that fact alone, to be considered to be a household or to share ahousehold. It is also denied that there has been a failure to facilitate the objectives of theCitizens Directive or that there is any requirement, as a matter of law, for the publicationof a detailed list of requirements which are to be satisfied by an applicant for a residencecard. The respondent argues that each case is to be decided by the Minister on the factsadduced and that the Citizens Directive does not require that national legislation provide acheck-list. It is pleaded that the decision of the trial judge on dependency was correct onthe facts.37. It is also pleaded that the reasons for the decision of the Minister were clear and sufficientto meet the standards identified in the authorities.Arguments on appealPage 8 ⇓38. The first limb of the argument on appeal is that the trial judge misconstrued the meaningand effect of the phrase “member of the household” of a Union citizen. That is found inthe Irish Regulations and in the English version of the Citizens Directive itself. There is nodefinition in either. The appellants argue that in order for the second appellant to meetthe criterion of being a member of the “household of a Union citizen” he must establishthat he is a permitted family member, and that he cohabited or lived under the same roofas his first cousin in the United Kingdom, the country from which he had come. Keane J.,at para. 37, having noted the requirement for consistent interpretation of the CitizensDirective throughout the Member States and that the concept is to be treated as anautonomous concept for the purposes of EU law, referring to the case decided by theCourt of Justice in CILFIT v. Ministero della Sanità (Case C-283/81),ECLI:EU:C:1982:335, held that:“It is difficult to reconcile the applicants’ argument on interpretation, predicated asit is on a definition drawn from a dictionary of American English, with theapplication of the principles just described.”39. In this approach, he was correct. Keane J. did not accept that a person who cohabits orlives under the same roof as a Union citizen is, as a result of that cohabitation, a memberof his or her household. He postulated the requirement that there be some notional“head” of a household to properly understand and apply the phrase. That language comesfrom the decision of Cooke J. in Wang (a Minor) v. Minister for Justice, Equality and LawReform [2012] IEHC 311, a decision given in an application for leave to seek judicialreview and where the question was whether the minor Union citizen could be “the basis ofthe household” for the purposes of the Citizens Directive. There, the Chinese nationalmother of a Hungarian infant sought to argue that she was a member of the household ofher Union citizen daughter. Cooke J., who, it must be recalled, was considering whetherto grant leave, considered that it was at least stateable or, as he put it, “not beyondargument” that the phrase “household of a Union citizen” as used in the CitizensDirective:“[…] is not used in that proprietary sense but is open to the interpretation that ifone individual is a Union citizen all members of the group could be regarded asequal members of the household”, at para. 33.40. Cooke J. granted leave to apply for judicial review notwithstanding that the ordinarysense of the word “household” normally connotes a group of individuals living togetherunder a head of household. The case did not thereafter proceed to a hearing.41. The respondent argues that the judgment of Keane J. had not determined the meaning ofthe term “head of the household” by reference to an attempt to identify the “head” of thathousehold, but had rather focused on the test as being one of establishing that thehousehold was that of the Union citizen and a question to be determined on the facts ineach case. Keane J. understandably made the observation that there could be more thanone “head” of a household, at para. 50.Page 9 ⇓42. It is argued that the Citizens Directive does not require that the Minister would set out indetail the criteria to be met by a person seeking to establish that he or she is a“permitted family member” for the purpose of the Irish Regulations and whether anapplicant satisfies the test is to be determined on the facts of the individual case.43. It is argued by the appellants that the High Court judge erred in his consideration of themeans by which the Minister interrogated the documentation provided by Mr Subhan andMr Ali. The respondent argues that the trial judge correctly said that the burden of prooflay on an applicant to establish dependency and that the trial judge was correct in holdingthat the test required a consideration of the “duration and impact upon personal financialcircumstances” in the assessment of dependency. Many of the cases referred to in thejudgment by the trial judge, for example Chen v. Secretary of State for the HomeDepartment (Case C-200/02) ECLI:EU:C:2004:639, had at their core the question ofwhether dependency had to occur in a Member State or whether it could occur in a thirdState, an issue not raised in the present appeal, although the evidence was that MrSubhan did pay a contribution towards the education of his first cousin in Pakistan.44. In summary, the issues to be decided on the appeal are, therefore, as follows:(i) in the light of the principles applicable to the interpretation of EU law, what is themeaning of the term “member of the household of a Union citizen” for the purposesof the Citizens’ Rights Directive and the 2006 Regulations?(ii) was the Minister obliged to expressly identify or notify an applicant of arequirement to establish or identify a head of household?(iii) was the Minister’s conclusion that Mr Ali had not shown a dependence on MrSubhan correct, made in accordance with law, and properly reasoned?The “household” of the Union citizen45. The parties agree that the question for determination by the deciding officer was whetherMr Ali could show that he was part of Mr Subhan’s household or that he was dependenton Mr Subhan in the United Kingdom, and this approach derives from the fact that theprinciple underlying the Citizens Directive is support for the free movement rights of MrSubhan. What one examines is whether the free movement rights of the Union citizenmight have been impeded or restricted to a material degree were his cousin not to bepermitted to join him Ireland.46. The parties agree that there is relatively little EU or Irish jurisprudence concerning themeaning of “household” for the purposes of the Citizens Directive, and the first case inwhich article 3(2) was considered, a decision of the Court of Justice on a preliminaryreference from the Upper Tribunal of the United Kingdom, was Secretary of State for theHome Department v. Rahman (Case C-83/11) ECLI:EU:C:2012:519, which was concernedwith questions of dependency and the correct approach to the Citizens Directive, andremains the leading judgment on that approach. What is important, however, for theanalysis in the present case is the emphasis in Secretary of State for the HomePage 10 ⇓Department v. Rahman on the centrality of the free movement rights of the Union citizenand whether these are likely to be materially impeded.47. The deciding officer accepted that the appellants were resident together in the UnitedKingdom but not that Mr Ali was a member of the household of Mr Subhan. Theappellants argue that the correct approach to the question of whether a person is part ofthe same household of a Union citizen requires a focus on the family links and whetherextended family members are living under the same roof, and that the Citizens Directiveand caselaw do not require the additional element of identifying a head of the householdor a hierarchy within the living arrangements.48. The difference between the approach for which the parties contend comes down to arelatively simple proposition. The appellants argue that the word “household” refers tothose persons who reside together in the same dwelling, and the household of the Unioncitizen, therefore, consists of those persons who are family members who reside in thesame dwelling as the Union citizen. Distilled down to its essence, the appellants’argument is that a member of the family of a Union citizen who cohabits with that citizenis a member of his or her household. The submissions made to the deciding bodyfocussed on what was described variously as “the shared residence” or the “jointresidence” of Mr Subhan and Mr Ali.49. The Minister, on the other hand, argues that what is to be established is that thehousehold concerned is that of the Union citizen, as the focus of the Citizens Directive andof the 2006 Regulations is the protection of the free movement rights of the Union citizen,not the rights asserted by the non-Union citizen family member. The centrality of theUnion citizen in the family living arrangements is to be assessed.50. It is accepted that, for the purposes of the 2006 Regulations, the appellants residedtogether in the same residence in London since February 2013. That house was owned byMr Subhan’s brother, and his siblings and parents resided there for many years before MrAli came to reside there in 2010.51. It is not argued that the Union citizen must establish a proprietary interest, whether oneof ownership or a tenancy in the relevant dwelling, although evidence of ownership or oftenancy agreement could be relevant, but the Minister argues that for the livingarrangement to be a household in the sense in which it is meant in the Citizens Directiveand the 2006 Regulations, the Union citizen must be central in the household, and thatthis is borne out by the fact that it is the rights of the Union citizen which are to beprotected, and any obstacles to the free movement of the citizen which might arise fromthe refusal to permit a member of his household to travel with him must be removed, togive effect to the stated purpose of the Citizens Directive.52. It is the Union citizen who is to be the beneficiary of the Citizens Directive and the Unioncitizen’s rights are protected if, inter alia, a permitted family member is entitled toaccompany or join the Union citizen in the host Member State.Page 11 ⇓Discussion53. The appellants argue that the trial judge impermissibly posited a requirement that therebe identified a “head” of the household, a phrase which appears throughout his judgment,and which was described in the Court of Appeal for England and Wales in KG (Sri Lanka)v. Secretary of State for the Home Department [2008] EWCA Civ 13, [2008] WLR D 11,at para. 77, as a “colloquial term”. The trial judge, however, expressly set out his viewson this matter at para. 52:“Attributing a normal meaning to the words “members of the household of theUnion citizen” does not require or entail the identification of a designated “head” (orthe identification of the designated “heads”) of a household. The question ofwhether a household was, or is, that of the Union citizen concerned is one of fact inEU law, just as the question of whether a family member is a dependant of a Unioncitizen is” (emphasis in original).54. I accept the argument of the Minister that the High Court judge did not posit such a test,and that it is not found in either the Citizens Directive or the 2006 Regulations, but itremains the fact that what has to be identified is the household of the Union citizen, andthereafter whether the applicant for permission to enter and remain is a member of thathousehold. The centrality of the Union citizen is what is in issue, not whether the Unioncitizen heads up the group or governs the living arrangements within the dwelling. Insofaras the phrase “head of household” is used in the authorities from England and Wales, itseems to me that it was used more as a matter of convenience or as a colloquialexpression. What is required is that the core members of the household are to beidentified for the purpose of identifying the factual link between the family unit thusdefined or identified and the non-Union citizen who seeks to derive a right therefrom.55. That the household has a “head” or indeed, as Keane J. noted, more than one “head”,was described by Cooke J. in his judgment as “normal” and that expression appears in anumber of authorities from England and Wales, which I will turn to presently. I merelynote now that the task is not to ascertain the “head” of the household but rather toidentify the Union citizen whose free movement rights are said to be impacted, and howthe absence of the family member from the household of the Union citizen might impactupon his or her exercise of free movement rights.56. In para. 45, Keane J. set out his thinking regarding the normal meaning of the expression“the household of the EU citizen”:“[…] affording that term its normal meaning (and, in particular, paying due regardto the use within it of the preposition “of”), it seems to me that the interpretationaccepted in the jurisprudence already described is the correct one. There is astriking difference between the phrase actually used in Article 3(2) – i.e.“household of the Union citizen” – and the meaning of that phrase for which theapplicants contend, namely “same household as the Union citizen” (emphasis inoriginal).Page 12 ⇓57. Some emphasis was placed by both parties, on Secretary of State for the HomeDepartment v. Rahman, where the questions for consideration included the nature orduration of dependency referred to article 3(2) of the Citizens Directive. The opinion ofAdvocate General Bot, Secretary of State for the Home Department v. Rahman (Case C-83/11), ECLI:EU:C:2012:174, was referred to in argument by both parties and by thetrial judge in his judgment. Advocate General Bot identified a number of rules ofinterpretation from the caselaw, including that the provisions of the Citizens Directivemust be given a teleological interpretation having regard to their objective to promote theprimary and individual right of the Union citizen to move and reside freely within theterritory of the Member State subject to the limitations and conditions laid down in theTreaty and to the measures adopted to give it effect.58. He noted too the second objective of the Citizens Directive is to promote family unity,including the family unity in “a broader sense”. Further, the interpretation of nationalrules must respect the autonomous meaning of the Citizens Directive as a matter of EUlaw and uniform interpretation throughout the Member States is to be achieved. TheAdvocate General referred to:“the context in which the terms occur and the purposes of the rules of which theyform part”, at para. 39.59. The view of the Advocate General, at para. 58, was that the Citizens Directive imposesupon Member States “an actual obligation to adopt the measures necessary to facilitateentry and residence for persons coming within the scope” of article 3(2) of the CitizensDirective. The obligations entail procedural obligations which require that the MemberState carry out “an extensive examination” of the personal circumstances of anapplicant”, at para. 60, and also that the Member State justify the denial of entry orresidence. The Advocate General was, however, of the view that what in Ireland aretermed “permitted family members” do not benefit from a presumption of admission, atpara. 63.60. Paragraph 75 of the opinion presents a helpful explanation of the concept of family life inthe context of the interpretation of article 8 of the European Convention for the Protectionof Human Rights and Fundamental Freedoms. He described “family life” in that contextas:“characterised by the presence of legal or factual elements pointing to the existenceof a close personal relationship, which makes it possible, for example, to include,under certain circumstances, ties between grandparents and grandchildren or tiesbetween brothers and sisters.”61. The trial judge found helpful the decisions of the authorities from England and Waleswhich he considered in some detail. From these emerges the primary proposition that thepurpose of the Citizens Directive was to support rights of free movement of the Unioncitizen “not in order to support family values as such, but in order to make real the rightof movement of the Union citizen “who may be deterred from exercising that right if hePage 13 ⇓cannot take his relevant family with him”, KG (Sri Lanka) v. Secretary of State, at para.33, per Buxton L.J. As Buxton L.J. later said in that judgment, at para. 36:“family reunification” is relevant, but relevant only, to the extent to which it assistsin the exercise of the Community right of the Union citizen.”62. Accordingly, while the caselaw does mention the maintenance of the unity of the family ina broader sense, that unity can be said to be an objective of the Citizens Directive onlyand to the extent in which it assists the Union citizen in the exercise of rights where he orshe might be dissuaded from moving to another Member State without the presence ofclose relatives.63. As to how one is to identify the members of the “household” of the Union citizen, BuxtonL.J., in KG (Sri Lanka) v. Secretary of State for the Home Department, at para. 77, saidthat the test was not whether the Union citizen and the relative were members of a“communal household”, nor was it a test of whether they lived under the same roof, butrather the requirement was that the family member have been living with the Unioncitizen “under his roof” (my emphasis). As he said, it was based on living in thatcircumstance that the Union citizen could have a reasonable wish to be accompanied bythat person when he exercised his free movement rights to travel to another country.64. Keane J., in his later judgment in Rehman v. Minister for Justice [2018] IEHC 779, atpara. 46, returned to the concept of “household” and, having reviewed the Englishauthorities including those after the Court of Justice gave its decision in Metock v. Ministerfor Justice, Equality and Law Reform (Case C-127/08) ECLI:EU:C:2008:449, said thefollowing, at para. 44:“As I observed in Subhan, I see no reason why there cannot be more than onehead of household, comprising a person or persons of any gender or, for thatmatter, none. There is no basis for Mr Rehman’s suggestion that the term soconstrued is in any way limited in its application to the “traditional family in whichthe husband is the breadwinner and the wife takes care of the household and thechildren”, which, according to Advocate General Geelhoed in his Opinion in Case C-413/99 Baumbast (5 July 2001) (at para. 23), was the sort of family relationshipthat the social legislation of the 1950s and 1960s made provision for at the timewhen Regulation 1612/68, the predecessor of the Citizens’ Rights Directive, wasadopted.”65. He went on at para. 45 to observe that:“[T]here must be at least one person in any family household, however constituted,with the necessary level of authority, responsibility or control to be thehouseholder.”66. Keane J. was satisfied that, although the concept might seem old fashioned, it remained a“useful and enduring one”.Page 14 ⇓Discussion of meaning of “household”67. Of itself, however, it seems to me, for the reasons that will appear, that the principle isnot met by the perhaps formulistic identification of a “head of household”, but rather byascertaining whether the cohabitation or co-living arrangements are more than merelyconvenient, and whether the non-Union citizen family member is part of a cohesive, longterm, coherent and single unit which might generally be called a “household”. With that inmind, it seems to me that the living arrangements are not to be viewed with a bird’s eyeview of a single moment in time but must rather have some regard to the durability of theco-habitation, and also of what future intentions can be objectively presumed regardingthe continued existence of the household.68. It may be more useful to consider the notion of household by reference to what it is not.Persons living under the same roof are not necessarily members of the same householdand they may well be what we colloquially call housemates. An element of sharing that isnecessary in a household may well be met in that the persons living together may agreeon a distribution of household tasks and a proportionate contribution towards householdexpenses. But because, for the purpose of the Citizens Directive, one must focus on theliving arrangements of the Union citizen, the members of the household of the Unioncitizen must, on the facts, be persons who are in some way central to his or her familylife, that those family members are an integral part of the core family life of the Unioncitizen, and are envisaged to continue to be such for the foreseeable or reasonablyforeseeable future. The defining characteristic is that the members of the group intendco-living arrangement to continue indefinitely, that the link has become the norm and isenvisaged as ongoing and is part of the fabric of the personal life of each of them.69. It is not a test of with whom the Union citizen would choose to live, but rather, withwhom he or she expects to be permitted or facilitated to live in order that his or herfamily unit would continue in being, and the loss of whom in the family unit is a materialfactor that might impede the Union citizen choosing to or being able to exercise freemovement rights. That second element, it seems to me, properly reflects the coreprinciple intended to be protected by the Citizens Directive.70. It may be dangerous to give an example, and I do so by way of illustration only. A familymember who had resided in the same house as a Union citizen for many years before freemovement rights were exercised might well have become a member of the family withwhom there has developed a degree of emotional closeness such that the person isintegral to the family life of the Union citizen. That person could be a member of ahousehold because the living arrangements display connecting factors that might, in anindividual case, be termed a “household”. If the rights of free movement of a Unioncitizen within the group are likely to be impaired by the fact of that living arrangement,whether for reasons of the moral duty owed to the other members of the group orotherwise, then the rights under the Citizens Directive fall for consideration.71. The averment by Mr Subhan that it was “expected of me by my family in Pakistan to lookafter my cousin” suggests factors at the other end of the spectrum, where Mr Subhanasserts an obligation to provide for his first cousin to enable him to study and gain hisPage 15 ⇓own independent living arrangements, or to help him to “get on his feet”. It does notsupport an argument that Mr Ali’s continued presence under the roof of his first cousinwas core to the exercise of free movement rights, and that this perceived imperative tooffer help means that Mr Subhan was impaired in the exercise of his free movementrights as a Union citizen.72. It is true that recital 6 of the Citizens Directive includes the facilitation of family unity as apurpose of the Directive, but that is because a proper approach to free movementrequires support to the person seeking to exercise free movement rights so that his or herfamily is preserved. The objective is not to keep families together, but rather to permit aUnion citizen to have his or her family enter and reside the host Member State for thepurpose of the ongoing family life of the Union citizen. The difference might appear subtlewhen seen in the abstract, but in a concrete case the degree of interconnectedness andthe identification of what I might call a “core family” is often less difficult.73. The colloquial use of the term “head of a household” might seem, in modern parlance, tobe somewhat unfortunate, blunt, or even politically incorrect, and Keane J. was right, inmy view, to recognise that the head of a household might not always be one person anddoes not, of course, have to be the male member or even the member of the householdwho, by reason of personality or otherwise, sets the rules of daily co-existence. Thecorrect approach, it seems to me, is to look at the core family connections of the Unioncitizen and how those core connections may properly be understood and supported toenable free movement and establishment of the Union citizen in the host Member State.There must, in those circumstances, be at least an intention or an apprehension that thepermitted family members would continue to reside under the same roof in the hostMember State not merely for reasons of convenience, but for reasons of emotional andsocial connection, affection, or companionship.Argument from other languages74. Some argument was had in oral submissions regarding the recent decision of Barrett J. inShishu v. Minister for Justice and Equality [2019] IEHC 566, where he set out a numberof informal translations of the German, Greek, and Spanish text of article 3(2)(1) of theCitizens Directive. He said as follows, at para. 7:“[T]he proper meaning to be given to the notion of “household” within Art.3(2)(a)appears to be wider than recourse solely to the ordinary English meaning of same isappropriate”.75. For example, the Spanish phrase “vive con el”, which Barrett J. translated informally intoEnglish as “lives with the Union citizen”, seems to connote no more than living under thesame roof. Barrett J. considered that, in principle at least, the German, Spanish, andGreek versions posited a test of living under the same roof or cohabitating, and that noelement of identifying the “head of the household” was required. I am, for that reason,unable to conduct the analysis for which the appellants contend in the light of the bareinformal translation carried out by Barrett J. and in the absence of further evidence assuggested.Page 16 ⇓76. Counsel for the appellants was unable to identify any caselaw from the domestic courts ofGermany, Greece, or Spain, or any decision of the Court of Justice which directlyconsidered the proper meaning of those national transpositions of article 3(2) of theCitizens Directive. Further, no expert evidence was given to the High Court as to how thelanguage has been interpreted in domestic courts, or even as to the possible varyingtranslations of the language.Dependency77. The other main issue in the appeal concerns the alleged failure of the trial judge to findthat the Minister had failed to give sufficient reasons for the conclusion that Mr Ali wasnot dependent on his first cousin.78. Two matters fall for consideration. The first is the contention of the appellants containedin their supplemental written submission and in their oral submissions that the Ministerwas at the relevant times in the case at issue applying the wrong test for establishing“dependency”.79. I note however that the trial judge observed at para. 58 of his judgment, that:“There is no disagreement between the parties concerning the proper interpretationof the term ‘dependant of the Union citizen’ for the purposes of Reg. 2 of the 2006Regulations and Art. 3(2) of the Citizens’ Rights Directive. […] [B]oth sides invokethe very careful and thorough analysis of the law conducted by Mac Eochaidh J in[K.] v. Minister for Justice and Equality [2013] IEHC 424 […] which I am grateful toadopt.”80. The trial judge adopted the test for dependency approved by the Court of Appeal in thelinked cases of V. K. v. Minister for Justice, Equality and Law Reform and Khan v. Ministerfor Justice and Equality [2019] IECA 232, which was an appeal from decisions of MacEochaidh and Flaherty JJ. where what was under consideration was the test ofdependency in the light of EU caselaw and, in particular, the decision of the Court ofJustice in Jia v. Migrationsverket (Case C-1/05), ECLI:EU:C:2007:1. In the light of theconcession made at trial, I do not consider this point now properly falls for considerationon the appeal.81. Further, insofar as it is sought to now argue that the Minister failed to state what test of“dependency” had been applied, that proposition did not form part of the grounds onwhich leave to bring judicial review was given by the order of Barr J. made on 12September 2016, and accordingly cannot form the basis of an appeal.82. The second element of this ground of appeal concerns the correctness of the approach tothe evidence. The decision maker did not accept the evidence adduced by the appellantsthat Mr Ali was dependent upon his first cousin83. The decision maker specifically focused on the adequacy of the documentation providedby Mr Ali which consisted of some bank statements and money transfers adduced asevidence of purported dependency. The decision was that “these documents in isolationPage 17 ⇓are not proof of dependency”, and that Mr Ali had not provided complete informationdetailing his source of finances between 2009 and 2014. The decision maker was correctand a conclusion as to whether a person is dependent must, in the light of the EU caselawand in the light of the decision in V. K. v. Minister for Justice and Khan v. Minister forJustice, involve an analysis of the documentation and evidence. The conclusion was thatthe documentation did not, on the facts, explain the financial means and needs of Mr Aliand how his means were insufficient to meet his essential needs without the financialsupport of his first cousin.The inferences drawn by the trial judge from the facts84. The statement of grounds pleads that Mr Ali was dependent as a matter of fact and thatthe evidence of material support was sufficient to establish this such that the Minister’sdecision was “unreasonable”, or that the Minister failed to take into account the relevantevidence furnished.85. Ground 6 of the grounds of appeal asserts that the High Court judge was incorrect infailing to properly consider the submission made that the Minister had not considered thedocumentation.86. At para. 64 et seq. of his judgment, the trial judge analysed the evidence of directfinancial contributions by Mr Subhan to Mr Ali. He also noted that no documentaryevidence had been produced to corroborate the indirect support, and cash paymentsalleged to have been made by Mr Subhan to his first cousin while he was resident in theUnited Kingdom.87. The trial judge then quoted the Upper Tribunal decision in Moneke v. Secretary of Statewhich he considered stated the correct test, namely that the obligation to provedependency still lay on the applicant and that that evidence had to be “cogent”, at least,part documented, and had to be evidence which can be tested. He pointed out that Mr Aliwas on notice from the first instance decision on 21 December 2015 that the Minister wasnot satisfied as to the proofs of material support.88. He was not satisfied that the Minister had failed to have proper regard to the evidencesubmitted:“I can find nothing in that decision to suggest that the Minister failed to haveregard to any of the evidence submitted by Mr Ali, nor can I find anything in thedecision to suggest that the reasons given for it fail the test of reasonablenessunder the well-established Keegan and O’Keefe principles, confirmed by theSupreme Court in Meadows v. Minister for Justice [2010] 2 IR 701”, at para. 66.89. I find that the trial judge’s approach to this question was correct, and that the evidencedid show that the decision maker engaged in detail with the documentation, andinterrogated the various vouching documentation furnished and the correspondence bearsthis out.90. I would dismiss this ground of appeal.Page 18 ⇓Conclusion91. For the reasons stated, I consider all grounds of appeal must fail.
Ewaen Fred Ogieriakhi v The Minister for Justice and Equality, Ireland, Attorney General and an Post
34/2016
Supreme Court
13 July 2017
unreported
[2017] IESC 52
Ms. Justice O’Malley
July 13, 2017
JUDGMENT
Introduction
1. This appeal concerns, firstly, the right to damages (often referred to as “ Francovich” damages) that may in some circumstances be claimed by a person who suffers loss as the result of the incorrect application of European Union law by the authorities of a Member State. Secondly, there is a question as to whether domestic Irish law can provide a separate remedy in damages for what occurred to the appellant.
2. The appellant is a foreign national who has, since the events described in this judgment, become an Irish citizen. His claim arises from the fact that in 2007 he was refused permission to remain in the State, and lost his job with An Post, as a direct result of the misinterpretation of the relevant residence regulations by the Minister for Justice and Equality. He has always argued, and the State parties now accept, that he did in fact have a right to reside here at that time by virtue of a European Union Directive. The core issue in the case is whether the European Union law criteria for a claim of this nature, set out in Francovich, Bonifaci & Ors. v. Italian Republic (C-6/90 & C-9/90) [1991] E.C.R. I-5357 and subsequent authorities, are satisfied.
3. The appellant also claims that the misinterpretation of the relevant provisions resulted in a breach of his constitutional rights, in particular the right to work and the right to his good name, entitling him to damages if no other remedy is adequate.
4. The Regulations in question (made under the powers conferred by the European Communities Act 1972), which came into effect on the 30th April, 2006, were intended to implement a European Union Directive (2004/38/EC). The Directive dealt with, inter alia, the right of residence of third-country nationals married to EU citizens who exercise freedom of movement rights within the Union. The Regulations introduced a new right of permanent residence for such EU citizens and their spouses, exercisable when they have lived in the State for a five year period.
5. The appellant’s wife, a French national, lived and worked in the State between 1999 and the end of 2004, and the appellant resided here throughout that period and beyond. The Minister’s belief was that the Regulations did not give him an entitlement to permanent residence as of the time of his application in 2007, primarily because his wife had left the State at the end of 2004. This interpretation was based on a mistaken view of the effect of the Directive, a fact that became indisputable when the judgment of the Court of Justice of the European Union in Secretary of State for Work and Pensions v. Lassal (Case C-162/09) [2010] E.C.R. I-9217 was delivered on the 7th October, 2010.
6. If the correct view had been taken of the appellant’s application it would have been clear (subject to certain other arguments that were ultimately disposed of in the appellant’s favour and are no longer in issue) that he was entitled to permanent residence and was therefore entitled to continue to work without the need to obtain a work permit.
7. The appellant was dismissed by An Post in October, 2007 because he did not have a work permit. He initiated a claim for unfair dismissal in the Employment Appeals Tribunal (“EAT”). On the morning of the hearing he was informed that the Minister had decided to grant him “Stamp 4” permission to remain, and counsel for An Post confirmed that it was prepared to re-employ him in those circumstances. He refused this offer, because at the time he wished to engage in a business project. In this appeal he has argued that he was not obliged by the principles relating to mitigation of loss to accept an oral rather than written offer.
8. The High Court (Hogan J.) decided to refer certain questions to the Court of Justice of the European Union (see [2013] IEHC 133). After receipt of that Court’s ruling, Hogan J. held that the appellant was entitled to damages for loss suffered by reason of the failure on the part of the State to properly implement the Directive (see [2014] IEHC 582). In so holding, he found that the appellant’s claim satisfied the criteria set out in Francovich and Others (C-6/90 and C-9/90) and Brasserie du Pêcheur v. Federal Republic of Germany and R v. Secretary of State for Transport ex parte Factortame (C-46/93 & C-48/93) [1996] E.C.R. I-1029. He considered it appropriate to award damages for six years loss of earnings. Having taken account of certain matters that went to the issue of mitigation he awarded €107,905 under this heading as against Ireland and the Attorney General. He also awarded €20,000 in respect of the dismissal, on the basis that it constituted a breach of the appellant’s constitutional right to a good name.
9. This decision was overturned in its entirety by the Court of Appeal (see [2016] IECA 46). That Court considered that the conditions for the jurisdiction to award damages for failure to implement EU measures had not been met. In finding that the breach by the State was not sufficiently serious, the Court ruled that the mistake had been honest and excusable, and found that the Directive had not been sufficiently clear and precise to give rise to liability for the error in interpretation. The Court of Appeal further held that there was no applicable national legal principle under which the appellant was entitled to damages for what had happened to him.
10. By determination dated the 16th June, 2016, (see [2016] IESCDET 66) the appellant was granted leave to appeal to this Court on the following questions:
a. Whether an honest and excusable misunderstanding on the part of the State officials as to the requirements of a Directive is a significant factor in considering whether or not the breach of the Directive was serious.
b. Whether a person who has suffered damage as a result of the incorrect transposition of a Directive in this State is entitled to claim damages under domestic law, or is confined to the criteria established by the Court of Justice of the European Union in Francovich and Brasserie du Pêcheur.
c. Whether the finding that the failure of the State to implement the Directive correctly did not give rise to damages under the principles set out in Francovich and Brasserie du Pêcheur necessarily entailed a finding that the applicant had no right to damages under domestic law, including under the Constitution.
d. Whether the applicant, as a person who was dismissed because of the application to him of regulations which failed to properly implement the Directive, had any remedy under domestic law.
e. Whether the obligation to mitigate loss can require a person in the applicant’s position to accept an unwritten offer of employment.
The principles of European Union law applicable to liability of a Member State
11. The joined cases Francovich, Bonifaci & Ors. v. Italian Republic (C-6/90 & C-9/90) [1991] E.C.R. I-5357 established the principle that Member States are obliged to make good loss and damage caused to individuals by breaches of Community (now Union) law for which they can be held liable.
12. The conditions for liability were considered and authoritatively set out in cases Brasserie du Pêcheur v. Federal Republic of Germany and R v. Secretary of State for Transport ex parte Factortame (C-46/93 and C-48/93) [1996] E.C.R. I-1029. In its answers to questions referred by courts in Germany and the United Kingdom, the Court of Justice reached the following conclusions:
“1. The principle that Member States are obliged to make good damage caused to individuals by breaches of Community law attributable to the State is applicable where the national legislature was responsible for the breach in question.
2. Where a breach of Community law by a Member State is attributable to the national legislature acting in a field in which it has a wide discretion to make legislative choices, individuals suffering loss or injury thereby are entitled to reparation where the rule of Community law breached is intended to confer rights upon them, the breach is sufficiently serious and there is a direct causal link between the breach and the damage sustained by the individuals. Subject to that reservation, the State must make good the consequences of the loss or damage caused by the breach of Community law attributable to it, in accordance with its national law on liability. However the conditions laid down by the applicable national laws must not be less favourable than those relating to similar domestic claims or framed in such a way as in practice to make it impossible or excessively difficult to obtain reparation.
3. Pursuant to the national law which it applies, reparation of loss or damage cannot be made conditional upon fault (intentional or negligent) on the part of the organ of the State responsible for the breach, going beyond that of a sufficiently serious breach of Community law.
4. Reparation by Member States of loss and damage which they have caused to individuals as a result of breaches of Community law must be commensurate with the loss or damage sustained. In the absence of relevant Community provisions, it is for the domestic legal system of each Member State to set the criteria for determining the extent of reparation. However, those criteria must not be less favourable than those applying to similar claims or actions based on domestic law and must not be such as in practice to make it impossible or excessively difficult to obtain reparation. National legislation which generally limits the damage for which reparation may be granted to damage done to certain, specifically protected individual interests not including loss of profit by individuals is not compatible with Community law. Moreover, it must be possible to award specific damages, such as exemplary damages provided for by English law, pursuant to claims or actions founded on Community law, if such damages may be awarded pursuant to similar claims or actions founded on domestic law.
5. The obligation for Member States to make good loss or damage caused to individuals by breaches of Community law attributable to the State cannot be limited to damage sustained after the delivery of a judgment of the Court finding the infringement in question.”
13. Liability thus arises where the rule breached was intended to confer rights on individuals, the breach is “sufficiently serious” and there is a direct causal link between the breach and the damage. There is really no question in the instant case as to the existence of the first and third conditions and the debate has centred on the second. That concept is the subject of paragraphs 55 to 57 of the ruling of the Court of Justice, which read as follows:
“55. As to the second condition, as regards both Community liability under Article 215 and Member State liability for breaches of Community law, the decisive test for finding that a breach of Community law is sufficiently serious is whether the Member State or the Community institution concerned manifestly and gravely disregarded the limits on its discretion.
56. The factors which the competent court may take into consideration include the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or Community authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law.
57. On any view, a breach of Community law will clearly be sufficiently serious if it has persisted despite a judgment finding the infringement in question to be established, or a preliminary ruling or settled case-law of the Court on the matter from which it is clear that the conduct in question constituted an infringement.”
14. The CJEU made it clear that national courts have sole jurisdiction to find the facts and to decide how to characterise a breach of Community law.
Council Directive 2004/38/EC
15. Before the adoption of this Directive the residence rights of third-country nationals married to Member State citizens who were exercising freedom of movement rights were governed by a number of different instruments. The one of most relevance to the instant case was Regulation (EEC) No. 1612/68 of the Council of 15th October, 1968, which clearly linked the entitlement to residence of those persons to the ongoing activities of the EU citizen spouse. Articles 10 and 11 of the Regulation read as follows:
“Article 10.
1. The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State:
(a) his spouse and their descendants who are under the age of 21 years or are dependants;
(b) dependant relatives in the ascending line of the worker and his spouse.
2. Member States shall facilitate the admission of any member of the family not coming within the provisions of paragraph 1 if dependent on the worker referred to above or living under his roof in the country whence he comes.
3. For the purposes of paragraphs 1 and 2, the worker must have available for his family housing considered as normal for national workers in the region where he is employed; this provision, however, must not give rise to discrimination between national workers and workers from other States.
Article 11.
Where a national of a Member State is pursuing an activity as an employed or self-employed person in the territory of another Member State, his spouse and those of the children who are under the age of 21 years or dependent on him shall have the right to take up any activity as an employed person throughout the territory of that same State, even if they are not nationals of any Member State.”
16. According to the recitals, Directive 2004/38/EC is intended to simplify and strengthen the right of free movement and residence of all Union citizens by codifying and reviewing existing instruments that dealt separately with workers, self-employed persons, students and other economically inactive persons. Recital (5) states that if the right of Union citizens is to be exercised under objective conditions of freedom and dignity, it should also be granted to their family members irrespective of nationality. Recital (15) refers to the necessity for legal safeguards for family members in the event of the death of the Union citizen; or in the event of divorce, annulment of marriage or termination of a registered partnership. Measures should be taken to ensure that in such circumstances family members are to retain their right of residence, albeit on an exclusively personal basis. Beneficiaries of the right of residence should not be expelled so long as they do not become an unreasonable burden on the social assistance system.
17. Recital (17) is highly relevant to the issues in this case and states as follows:
“Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure.”
18. Article 12 of the Directive deals with the retention of the right of residence by family members in the event of the death or departure of the Union citizen. By virtue of Article 13, a family member who is not a national of a Member State does not lose the right of residence by reason of divorce or annulment of marriage if, inter alia, the marriage lasted at least three years including one year in the host Member State. A family member in this category must show that he or she is a worker or is self-employed, or has sufficient resources not to become a burden on the social assistance system of the host Member State, or is a member of a family, already constituted in the host Member State, of a person satisfying these requirements.
19. Article 16 of the Directive is the key provision for the purposes of this case. It is in Chapter IV of the Directive, which deals with the right of permanent residence, and is headed “General rule for Union citizens and their family members”. It provides as follows:
1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.
2. Paragraph 1 shall also apply to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.
3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.
4. Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two years.
20. Article 17 sets out various scenarios, relating to persons who reach retirement age or become permanently incapacitated, or who reside in one Member State but work in another, in which the five-year requirement may be reduced “ by way of derogation from Article 16”. It may be noted that recital (19) of the Directive refers to the necessity to make such provision, arising from the fact that rights had been acquired by some persons under previous instruments.
21. Article 38 repealed Articles 10 and 11 of Regulation (EEC) No. 1612/68 (set out above), while providing that references to the repealed provisions were to be construed as being made to the Directive.
22. Member States were obliged to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive within two years of the 30th April, 2004.
The Irish Regulations
23. The original implementation measure in this jurisdiction was the European Communities (Free Movement of Persons) Regulations 2006 (S.I. No. 226/2006), which was revoked and replaced by the European Communities (Free Movement of Persons) (No.2) Regulations 2006 (S.I. No. 656/2006) on the 1st January, 2007. It is the latter instrument that was in force when the decision impugned in this case was made.
24. Under the Regulations, a spouse of a Union citizen is described as a “qualifying family member”. Importantly, under the transitional provisions in Article 3 of the Regulations a person already lawfully resident in the State pursuant to the provisions of earlier regulations was to be deemed to be lawfully resident in the State for the purposes of the 2006 Regulations.
25. A Union citizen is entitled under the Regulations to reside in the State for up to three months purely on the basis of possession of valid identification papers. Thereafter, the right to reside is, in summary, contingent on the Union citizen (i) being in employment or self-employment; or (ii) having sufficient resources to support himself or herself and any accompanying spouse or dependants and having comprehensive sickness insurance; or (iii) being enrolled in an educational establishment and having comprehensive sickness insurance.
26. A family member of the Union citizen is entitled to reside in the State where the citizen fulfils these conditions. A family member who is not an EU citizen must apply for a residence card. The period of validity of the residence card is the envisaged period of residence of the Union citizen, or a period of not less than five years, whichever is the lesser period. Validity is not affected by temporary absences from the State, for various specified reasons and specified lengths of time. Family members may retain a right of residence on an individual and personal basis in the event of the death or departure of the Union citizen provided, essentially, that they satisfy the same criteria as those applicable to a Union citizen wishing to remain longer than three months. Similarly, a right of residence may be retained in the event of divorce or annulment of marriage, if inter alia it is shown that the marriage had lasted at least three years, including one year in the State. A person entitled to reside in the State on foot of these provisions may remain as long as they satisfy the conditions.
27. Article 12 of the Regulations reads as follows:
“12.(1) Subject to paragraph (3) and Regulation 13, a person to whom these Regulations apply who has resided in the State in conformity with these Regulations for a continuous period of 5 years may remain permanently in the State.
(2) For the purposes of paragraph (1), continuity of residence in the State shall not be affected by temporary absences not exceeding 6 months a year, or by absences of a longer duration for compulsory military service or by one absence of a maximum of 12 consecutive months for important reasons such as childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.
(3) The entitlement to remain permanently in the State pursuant to paragraph (1) shall cease to exist where the person concerned has been absent from the State for a period exceeding 2 consecutive years.”
28. It may be noted here that where Article 16(1) refers to persons who have “legally resided with the Union citizen”, the 2006 Regulations refer to persons who have resided “in conformity with these Regulations”. This was the subject of criticism in 2008, in a report on transposition of the Directive by consultants to the European Commission. The report stated that Ireland (along with Belgium, Latvia and the United Kingdom) had wrongly linked the issue of legality of residence to the national legal framework as opposed to Community law (Milieu Ltd. (Belgium) & Europa Institute, University of Edinburgh – “ Horizontal analysis of the transposition of Directive 2004/38/EC on free movement of Union citizens ” – 18th December, 2008). The consultants also thought that the wording of the Regulations meant that a person could not acquire rights based on residence before the date on which the Regulations came into force, but in fact this was not the meaning attributed to it by the Minister – the issue here was never whether residence that began before the 30th April, 2006 could be counted, but whether a five year period completed before the 30th April, 2006, followed by absence from the State on the part of the EU national, gave rise to entitlement. For the purposes of this case, nothing turns on the difference in wording and the relevant regulations may in my view be regarded as identical to the terms of the Directive.
Background facts
29. There is a lengthy history to the case. The appellant, who is a Nigerian national, arrived in the State as an asylum-seeker in 1998. In May, 1999 he married a French national who was working in Ireland and who remained in the State, working on an almost continuous basis, until December, 2004. The appellant withdrew his asylum application in 1999 and was granted leave to remain in the State on the basis that he was the spouse of an EU citizen who was exercising freedom of movement rights. The initial period of leave was for twelve months, followed by an extension up to October, 2004. As it happens the marriage broke down in 2001 and the appellant formed a new relationship with an Irish citizen. A child was born of this second relationship in 2003, but it appears that the appellant did not seek to rely on right of residence available under the Irish Born Child Scheme until after the closing date for applications had passed. He has at all times maintained that he has a right of residence derived from his marriage in 1999.
30. The appellant began working for An Post as a postal sorter in 2001.
31. An application for further leave to remain, made in September, 2004, was refused by the Minister in November, 2004 because the appellant had not provided sufficient evidence that his wife was continuing to exercise her Treaty rights (i.e. that she was residing and working here) at that time. That refusal was subsequently quashed by the High Court (MacMenamin J.), apparently because the Department itself was in possession of information showing that the wife was working in the State, and the matter was remitted for reconsideration by the Minister.
32. It is worth noting that MacMenamin J. said in the course of his initial judgment, delivered on the 11th March, 2005, that the appellant had resided lawfully in the State “for upward of five years”. That does not appear to have been in dispute in those proceedings. However, he refused to make a declaration that the appellant was entitled to remain within the jurisdiction or to grant an order of mandamus to the same effect. A claim for damages on foot of the invalid decision was adjourned for separate hearing and was later rejected by MacMenamin J. in May, 2007.
33. Meanwhile a further refusal of leave to remain issued from the Minister in April, 2005, after the reconsideration ordered by the High Court. This time it was on the basis that the available evidence indicated that the appellant’s wife had not worked in the State since December, 2004, when she appeared to have returned to France. The appellant did not bring a fresh judicial review challenge but rather sought relief by way of motion in the still extant proceedings before MacMenamin J.. That was ruled out as impermissible, on the basis that all issues in those proceedings had been determined apart from the question of damages.
34. The damages claim was ultimately rejected because MacMenamin J. found that there was no liability for what had occurred under the principles in either Francovich or Glencar Explorations plc v. Mayo Council (No.2) [2002] 1 I.R. 84.
35. At some stage in 2006 a petition was presented to the European Parliament on behalf of the appellant. In a notice to members of the Parliament dated the 7th May, 2007, it is recorded that the response of the Commission to the petition was that Directive 2004/38/EC introduced new rights for third-country family members. They were now entitled to permanent residence if they had legally resided with the Union citizen in the host Member State for a continuous period of five years. However, it was observed that there was a factual dispute between the appellant and the Irish authorities as to his residence.
36. By letter dated the 21st December, 2006, the head of the unit in the European Commission dealing with free movement issues wrote to the appellant about his case. It was stated that he was entitled to rely upon the Directive as of the 30th April, 2006. The letter continued:
“According to article 16 of the Directive 2004/38/EC, third country family members have the right of permanent residence in the host Member State if they have legally resided with the Union citizen in a host Member State for a continuous period of 5 years. [Reference was made here to a previous letter to the appellant which had confirmed that a family member was not obliged to live permanently with the EU citizen under the same roof, and that a marriage was not to be regarded as dissolved until terminated by a competent authority.] The Commission considers that this provision has to be understood as obliging the applicant to prove that until the day of the application he had resided legally in the host Member State for 5 years.A legal residence means in this respect a right to reside in the host Member State under the Community law.
“You ascertain [sic] in your letter that your wife, who is a French national, has been residing in Ireland since October 2004 when your 5-year family member residence permit expired. You also confirm that you are still married and that it is only now that you are about to start divorce proceedings. On the basis of your statements, it seems that since October 2004 you had the right to reside in Ireland under Community law as a family member of an EU citizen who has exercised her right of free movement.” [Emphasis in the original.]
37. The letter goes on to note, however, that the continued residence of the appellant’s wife in the State after December, 2004 was contested by the Irish authorities. It was not possible, the writer said, for the Commission to resolve this dispute.
38. The appellant has relied upon this letter as supporting his position, although it seems to be fairly clear that the Commission (or at least the writer of the letter) believed that the view of the Irish authorities would be correct if the factual situation was that the appellant’s wife was no longer living in the State. However, it will be seen that this was not the approach taken by the Commission when the issue was litigated before the Court of Justice.
39. In March, 2007 the appellant applied to the Minister for permanent residency on the basis that he had been lawfully resident in the State for the period of five years between 1999 and 2004. He referred in his correspondence to Directive 2004/38/EC and contended that, as it had been agreed in the High Court that his wife was continuing to exercise her rights when his first five years residence expired, he had achieved the right to permanent residence. By letter dated the 19th September, 2007, the Department responded simply that he had been present illegally in the State since the renewal of his residency was refused in April, 2005. His more recent application could not be considered because he had failed to provide evidence that his spouse was “currently exercising EU Treaty rights within the State”.
40. According to the oral evidence adduced in the instant proceedings, the view taken in the Department at that time was that the Directive granted a right of permanent residence on the basis of a continuous five year period that ended on or after the 30th April, 2006, but not in respect of such a five year period that had expired before that date. However, the Department’s letter did not deal with appellant’s reference to the Directive and did not mention the 2006 Regulations. It was followed within a short time by notification that the Minister was proposing to make a deportation order.
41. The appellant sought to initiate judicial review proceedings immediately after receipt of this correspondence but was refused leave to seek relief by the High Court (Charleton J.) after a contested application hearing on the 25th January, 2008. The appellant relied on the 2006 Regulations. The argument made on behalf of the Minister was that the regime under which the appellant had initially applied for residence was that established by Council Directive 68/360/EEC, Regulation (EEC) No. 1612/68 and the relevant Irish statutory instrument (the European Communities (Aliens) Regulations, 1977 (S.I. No. 393/1977)). Under that regime, the appellant had no further right to reside once his wife ceased to exercise her rights within the State.
42. As far as the new regime was concerned, the Minister said that it was not disputed that the appellant, as a separated but not divorced spouse of an EU national, was still a “family member” within the meaning of the Directive. The argument made was that a person in his position could only acquire a permanent right of residence in an EU State where inter alia he or she had legally resided in the host State “with” the Union citizen for a continuous period of five years.
43. The Minister accepted that Article 3(4)(a) of the Regulations permitted a person who was lawfully residing in the State at the time of coming into force of the 2006 Regulations to rely upon such earlier period of lawful residence as qualifying time for the purpose of calculating the necessary five years. However, it was not accepted that the appellant could rely upon this provision, since it was not accepted that he had been lawfully resident in compliance with the earlier regulations when the 2006 Regulations came into force. Any right to reside remained, therefore, contingent on the exercise by his spouse of her rights.
44. In his ex tempore ruling Charleton J. agreed with the Minister that any right of residence enjoyed by the appellant had ceased when his wife left the country in December, 2004. He accepted that if the Department had been aware of its own records as to the wife’s work it would probably have granted a five year permit to the appellant in October, 2004. However, the permit would have depended on the continued presence of the wife and could have been withdrawn when she left.
45. Looking at the 2006 Regulations, Charleton J. said that a “qualifying family member” such as the appellant could only claim a right of residence so long as he was “with” a Union citizen. That, he considered, required the spouses to be within the same territory. The right conferred by the Regulations began on the 30th April, 2006, and did not apply to events before that. When they came into force the appellant was not “with” his wife, since she was not here and had not been here for some 16 months. In the circumstances he ruled that the appellant’s case was not reasonably arguable.
46. The appellant did not appeal this decision at that time.
47. Meanwhile, the issue of the appellant’s status within the State had come to the attention of An Post management in the second half of 2007 and he was dismissed on the 24th October, 2007, because he did not have a work permit. It is clear that this was the only reason for the dismissal, and the letter of dismissal stated that if he obtained a permit in the future the company would re-employ him.
48. The appellant commenced a claim against An Post under the terms of the Unfair Dismissals Act 1977 in the Employment Appeals Tribunal. This was listed for hearing on the 4th April, 2008. In the meantime he also applied again for leave to remain. This time he was successful. On the morning of the EAT hearing the appellant received a phone call from the Department informing him that the Minister had granted him what is known as “Stamp 4” status, which entitled him to remain and work for a further period of three years. The Tribunal hearing was therefore adjourned to await written confirmation of this, which arrived in due course. The recommendation within the Department was that leave should be granted because of
“…the fact that Mr. Ogieriakhi was legally resident in the State for a five-year period, was employed by An Post for a period of six years approximately, is the father of an Irish citizen child and in a stable relationship with her mother, with whom he is joint owner of their home in which they all reside as a family…”
49. On the resumed date, counsel for An Post confirmed to the EAT that the offer of re-employment was still open, dependent on a suitable vacancy arising. However, the appellant informed the Tribunal that he did not wish to accept it because he had established a company to carry on a business on his own account. In its determination, the Tribunal ruled that it could only consider the dispute about the dismissal on the basis of what had been known to the parties on the date of dismissal in October, 2007. An Post had not been involved in or aware of any of the court proceedings in being at the time, and the dismissal was not unfair in the circumstances.
50. The business set up by the appellant was unsuccessful and he did not manage to obtain other work, although on the evidence Hogan J. was satisfied that he had made many attempts to secure employment. He was financially dependent on his partner at this time, during which he furthered his legal studies.
51. The appellant divorced his first wife in 2009 and married his Irish partner in the same year.
The decision of the Court of Justice in Lassal
52. On the 7th October, 2010, the Court of Justice delivered judgment in Secretary of State for Work and Pensions v. Lassal (Case C-162/09) [2010] E.C.R. I-9217. The case concerned a French national who had worked in the United Kingdom between 1999 and February, 2005. She then went to France for 10 months. She returned to the UK in December, 2005 and sought work. In November, 2006 she was refused income support on the basis that she had no right of residence. The question referred to the Court of Justice was whether she had acquired a right to permanent residence on foot of the period of residence that had expired prior to the 30th April, 2006. The position of the United Kingdom Government (supported by the Belgian Government) was the same as that adopted by the Irish authorities – that the period of residence had to end on or after the 30th April, 2006.
53. It may be noted that the European Commission supported the position of Ms. Lassal, arguing that the objective and ratio legis of the Directive required the full application of Article 16 to the earlier residence period. The Court agreed, repeating the observation made by it in Metock and Others v. Minister for Justice, Equality and Law Reform (Case C-127/08) [2008] E.C.R. I-6241 that, having regard to the context and objectives of the Directive, its provisions could not be interpreted restrictively and must not in any event be deprived of their effectiveness.
54. The judgment then continues:
“32. As recital 17 in the preamble to Directive 2004/38 states, the right of permanent residence is a key element in promoting social cohesion and was provided for by that directive in order to strengthen the feeling of Union citizenship.
33. It is true that it is common ground that the acquisition of the right of permanent residence on the ground of legal residence for a continuous period of five years in the host Member State, provided for in Article 16(1) of Directive 2004/38, did not appear in the EU law instruments adopted for the application of Article 18 EC prior to that directive.
34. However, such a finding cannot lead to the conclusion that only continuous periods of five years’ legal residence either ending on the 30 April 2006 or thereafter, or commencing after 30 April 2006 are to be taken into account for the purposes of acquisition of the right of permanent residence provided for in Article 16 of Directive 2004/38.
35. In the first place, an interpretation to the effect that only continuous periods of five years’ legal residence commencing after 30 April 2006 should be taken into account for the purposes of the acquisition of a right of permanent residence would mean that such a right could be granted only from 30 April 2011. Such an interpretation would amount to depriving the residence completed by citizens of the Union in accordance with EU law instruments pre-dating 30 April 2006 of any effect for the purposes of the acquisition of that right of permanent residence. It should be stated that prior to the adoption of Directive 2004/38 EU law already provided in certain specific cases for a right of permanent residence, which was included in Article 18 thereof.
36. It must be stated that such a result is contrary to the purpose of Directive 2004/38 …and would deprive it of its effectiveness.
37. In the second place, an interpretation to the effect that only continuous periods of five years’ legal residence ending on 30 April 2006 or thereafter should be taken into account for the purposes of acquisition of the right of permanent residence provided for in Article 16 of Directive 2004/38 is also contrary to the purpose and effectiveness of that directive. The EU legislature made the acquisition of the right of permanent residence pursuant to Article 16(1) of Directive 2004/38 subject to the integration of the citizen of the Union in the host Member State. As the Advocate General pointed out, in point 80 of her Opinion, it would be incompatible with the integration-based reasoning behind Article 16 of that directive to consider that the required degree of integration in the host Member State depended on whether the continuous period of five years’ residence ended before or after 30 April 2006.
38. Furthermore, it should be noted that, in so far as the right of permanent residence provided for in Article 16 of Directive 2004/38 may only be acquired from 30 April 2006, the taking into account of periods of residence completed before that date does not give retroactive effect to Article 16 of Directive 2004/38, but simply gives present effect to situations which arose before the date of transposition of that directive.
39. It should be borne in mind in that regard that the provisions on citizenship of the Union are applicable as soon as they enter into force and therefore they must be applied to the present effects of situations arising previously (see Case C-224/98 D’Hoop [2002] ECR I-6191, paragraph 25 and the case-law cited.”
55. The UK and Belgian Governments had submitted that Article 16(4) (providing that the right of permanent residence, once acquired, could only be lost by an absence of two or more years) could not be relied upon by persons who left the host State prior to the 30th April, 2006. The argument was that such persons did not have the necessary continuous residence as of the date upon which the Directive came into force.
56. The Court accepted (at paragraph 48) that it did not expressly follow from Article 16(4) that temporary absences of less than two years, prior to the 30th April, 2006, did not prevent acquisition of the right of permanent residence as of that date. However, it was necessary to consider not only the wording but the context of the legislation. At paragraph 50 the Court said:
“50. In that sense, the enacting terms of an EU act are indissociably linked to the reasons given for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption (Case C-298/00 P Italy v Commission [2004] ECR I-4087, paragraph 97 and the case-law cited, and Sturgeon and Others, paragraph 42).
51. Likewise, the Court held that, where a provision of EU law is open to several interpretations, preference must be given to the interpretation which ensures that the provision retains its effectiveness (see Sturgeon and Others, paragraph 47 and the case-law cited).
52. It must be stated that an interpretation such as that advocated by the United Kingdom and Belgian Governments would be contrary to the effectiveness and the purpose of Directive 2004/38 and the general scheme and spirit of Article 16 thereof.”
57. The reason for this conclusion was that the objectives of facilitating the exercise of the primary right to move and strengthening that right, along with the promotion of social cohesion and the strengthening of the feeling of Union citizenship, would be “seriously compromised” if the right of residence was refused to EU citizens who had legally resided in a host Member State for five years before the 30th April, 2006, on the sole ground that there had been a temporary absence, before that date, after completion of that period of residence. The general schema and spirit of the Article required it to be applied to such absences.
Subsequent litigation between the parties
58. After the decision in Lassal the appellant applied to this Court for an extension of time within which to appeal the decision of Charleton J., made in January, 2008, refusing him leave to seek judicial review. That was refused (on the 18th February, 2011), essentially because it did not meet the well-established criteria for such applications. However, the Court noted a statement by the Minister that he would review the appellant’s case within eight weeks of that date. It was subsequently denied that this amounted to an undertaking to the Court and in fact a decision on the application for a review of the September, 2007 refusal, submitted on the 23rd February, 2011, was not made until November, 2011, when the appellant was informed that he had been successful “ as you fulfil the relevant conditions set out in the regulations ”. The refusal of the 19th September, 2007, was set aside.
59. The evidence offered by the Department in respect of this delay was that such reviews normally took six to eight months and it was considered that the appellant’s case was “particularly complex”. He was one of the first persons asserting a right to permanent residence based on a period of residence completed before the transposition of the Directive and the Department had believed that he had been residing unlawfully in the State after the refusal of renewal in 2004. The Department had requested an opinion of counsel in April, 2011 but unfortunately this request was not sent to the Chief State Solicitor until September, 2011.
60. Meanwhile, on the 17th February, 2011, the appellant wrote to An Post claiming that his dismissal had constituted an unlawful breach of his rights under EU law. He sought reinstatement, back pay and damages. The response was that the matter had been dealt with in the Employment Appeals Tribunal.
61. These proceedings were then instituted.
The High Court judgment
62. As noted above, the appellant’s claim is for damages for breach of European Union law and for breach of constitutional rights.
63. The appellant relied upon Lassal for the purpose of arguing that his wife must be deemed to have acquired permanent residence in the State by October, 2004, under Article 16 of the Directive, since she had resided here legally for a continuous period of five years at that stage. On that basis he claimed that he had acquired an autonomous right of residence in his own right. The denial of that right had brought about a breach of his constitutional right to work.
64. Despite the fact that the Minister had concluded in 2011 that the appellant did fulfil the conditions set out in the Regulations it was now argued that they had not, in fact, been satisfied. Counsel for the Minister did not fundamentally challenge a great deal of the appellant’s analysis but argued, rather, that it was not enough for him to show that he had been legally resident in the State during the period. He was also obliged to show that this pre-April 2006 residence satisfied the requirements of the 1968 Regulation. This argument, accepted by Hogan J., was grounded on the Court of Justice decisions in Secretary of State for Work and Pensions v. Dias (Case C-325/09) [2011] ECR I-6387 and Ziolkowski v. Germany (Case C-424/2010) [2011] E.C.R. I-14035, where it had been ruled that if residence in a particular Member State was considered lawful only because of the national provisions of that State, and did not constitute the exercise of a right conferred by EU law, it could not be regarded as lawful residence for the purpose of the acquisition of a right of residence under EU legislation.
65. With reference to the facts of the case, the Minister’s contention was that the appellant’s wife had not worked for the whole of the five year period, and that she had not supplied the appellant with accommodation for the whole of that period. The latter argument arose from the requirement in the 1968 Regulation that a worker “must have available for his family housing considered as normal for national workers in the region where he is employed”.
66. On the first of these issues, Hogan J found as a fact that the wife had either been working or actively seeking work at all times, and therefore must be regarded as having been a “worker” for the entirety of the five years between 1999 and 2004.
67. On the second, Hogan J. decided to refer two questions, arising from the evidence as to the separation of the appellant and his wife, for preliminary ruling pursuant to Article 267 TFEU. These centred on the issue whether the appellant could be said to have legally resided “with” his wife after they separated (which, it will be remembered, occurred less than five years after the marriage) and the appellant had commenced living in accommodation not provided by her.
68. Hogan J. also decided to refer a third question, arising from a submission made on behalf of the Minister to the effect that, even if it were to be held that the refusal to grant the appellant permanent residence amounted to a breach of EU law, that would not necessarily satisfy the Francovich criteria for an award of damages. The argument was that the breach, if it was such, could not be said to have been obvious. Hogan J. therefore posed a question as to whether the fact that he had found it necessary to make a reference on the substantive issue was itself a factor to which he could have regard in determining whether the breach of Union law was an obvious one.
69. The Court of Justice delivered its ruling on the 10th July, 2014, Ogieriakhi v. Minister for Justice and Equality (Case C-244/13) [2014] E.C.R. I-2068. The first two questions were answered in the appellant’s favour and are not live before this Court. In relation to the third, the Court referred to its earlier judgments in Francovich, Brasserie du Pêcheur and Factortame and R v. HM Treasury, ex parte British Telecommunications plc (Case C-392/93) [1996] ECR I-1631. These established that State liability for loss and damage caused by infringements of EU law for which the State could be held responsible was inherent in the system of the Treaty. The right to reparation arises when three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the infringement must be sufficiently serious; and there must be a direct causal link between the breach of the obligation and the damage sustained by the injured party.
70. The debate in the instant case has centred on the second factor – whether the breach was “sufficiently serious”. The Court of Justice referred to the content of this condition as elaborated upon in Brasserie du Pêcheur. In that case it had said that the decisive test for finding that an infringement of EU law was sufficiently serious was whether the Member State concerned “manifestly and gravely disregarded the limits of its discretion”. The standard was not as high as that required for the establishment of misfeasance in public office, since that concept was inconceivable in the case of a legislature. To impose that standard would, in practice, make it impossible or extremely difficult to obtain reparation for a breach where it was attributable to a national legislature.
71. The Court went on to repeat that national courts had sole jurisdiction to find the facts and to decide how to characterise the infringement at issue. In so doing, a national court may take into account factors such as the degree of clarity and precision of the rule infringed. It could not be a decisive factor, in determining this latter issue, whether or not the national court found it necessary to seek a preliminary ruling on the provision in question. To hold otherwise would be to limit the discretion of national courts to make a reference and would compromise the system, the purpose and the characteristics of the preliminary reference procedure.
72. Having received the ruling of the Court of Justice, Hogan J. resumed the hearing. The State defence at this stage relied, essentially, on arguing that the Francovich criteria were not met in respect of EU law because the error had not been obvious, that domestic law did not provide a separate remedy for breach of Union law and that the test in Pine Valley Developments Ltd. v. Minister for the Environment [1987] I.R. 23 and Glencar Explorations plc v. Mayo Council (No.2) [2002] 1 I.R. 84 for an award of damages for an error of law by a State agency was not met.
73. The learned trial judge delivered a second judgment (see [2014] IEHC 582) on the 22nd December, 2014. He found that the evidence adduced by the Department and by An Post established that all decision-makers had acted honestly, by reference to their understanding of the requirements of the Directive. However, objectively the breach of Article 16(2) was very serious, with grave consequences for the appellant. Having regard to the observation by the CJEU that the standard applicable to misfeasance in public office was too onerous, he considered that his finding of an absence of malice, and the presence of bona fides, did not necessarily exempt the State from liability.
74. Hogan J. cited the following passage from Brasserie du Pêcheur:
“55. As to the second condition, as regards both Community liability under Article 215 and Member State liability for breaches of Community law, the decisive test for finding that a breach of Community law is sufficiently serious is whether the Member State or the Community institution concerned manifestly and gravely disregarded the limits on its discretion.
56. The factors which the competent court may take into consideration include the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or Community authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law.
57. On any view, a breach of Community law will clearly be sufficiently serious if it has persisted despite a judgment finding the infringement in question to be established or a preliminary ruling or settled case-law of the Court on the matter from which it is clear that the conduct in question constituted an infringement.”
75. Applying this analysis, Hogan J. addressed the issue of the clarity and precision of Article 16. He held that Articles 16(1) and 16(2) were “absolutely unambiguous”. He considered that the error was not objectively excusable, even if the issue was only ultimately clarified by the Court of Justice in Lassal. The Minister had adopted an interpretation of the Article that was “always inherently unlikely to prevail”, because it was at odds with the key objectives of the Directive as set out in the recitals. The language of those recitals was “perfectly apt” to capture past events, and if this was not the intention one might expect an express exclusion of pre-2006 residence. If such residence could not be taken into account some striking anomalies would arise, as noted by the CJEU in Lassal. The repeal of the pre-existing legal entitlements contained in Articles 10 and 11 of the 1968 Regulation, with effect from the 30th April, 2006, was another indication that it was expected that residence before that date would be taken into account. It was scarcely to be supposed that Union citizens who had acquired rights of residence prior to April, 2006 were to find themselves without rights under either the old, repealed regime or under the new one. The express preservation of certain rights under Article 17 “by way of derogation from Article 16” would have had no purpose if Article 16 did not apply at all to pre-April 2006 events.
76. Hogan J. acknowledged that the Minister’s interpretation would have included pre-April 2006 residence provided at least some of the period of residence crossed over the 30th April, 2006, date. However, there was nothing in the text to warrant a distinction between, for example, a five year period ending in March, 2006 and one ending in June, 2006. The Article was either capable of embracing pre-April 2006 residence or it was not.
77. Accordingly, Hogan J held that the breach of EU law was sufficiently serious to give rise to a liability for damage caused.
78. The judge then turned to the question of damages. He found, firstly, that if the appellant had not been dismissed he would have continued in his job with An Post and would have worked regular overtime. He estimated his gross loss as having been €22,324 per year. Since he had been more or less unemployed since his dismissal, Hogan J. felt that he should be permitted to claim for six years from October, 2007 to October, 2013 – “ i.e. the maximum period tacitly permitted by the Statute of Limitations” . The gross loss was therefore €133,944.
79. Consideration was also given to the obligation on the part of the appellant to mitigate his loss. Hogan J. referred to the fact that the appellant had been offered his job back in 2008, and considered that if he had accepted the offer he would have been re-engaged by or before October, 2008. It was “objectively unreasonable” not to accept the offer. However, An Post were also at fault in that the verbal offer made at the EAT was not followed up by a formal offer in writing. In the circumstances the appellant could not properly assess the terms upon which he would be employed. The trial judge considered it appropriate to measure the appellant’s “contributory negligence by reason of failure to mitigate” at 50% for the period from October, 2008 to February, 2011. The reduction was terminated at that point because of the failure by An Post to reinstate the appellant when he contacted them after the decision in Lassal.
80. The total award for loss of earnings was therefore calculated at the figure of €107,905, to be subject to payment of appropriate income tax and fiscal charges.
81. Hogan J. then went on to hold that the appellant was entitled to further damages for breach of his constitutional right to a good name by reason of the injury to his reputation because of the circumstances of his dismissal. Having referred to Addis v. Gramophone Co. Ltd. [1909] A.C. 488, which is generally thought of as authority for the proposition that damages are not recoverable in contract for the manner in which an employee is dismissed, and to more recent decisions in the United Kingdom on this issue, he considered the case of Garvey v. Ireland (No.2) [1979] I.L.R.M. 266. He criticised the reasoning in that case, and went on to hold that a rule excluding damages for loss of reputation would be prima facie incompatible with the guarantee imposed on the State by Article 40.3.2. In the circumstances of the instant case, he considered that the Addis rule would be “basically ineffective” (quoting Henchy J. in Hanrahan v. Merck, Sharp & Dohme Ltd. [1988] I.L.R.M. 629) for the purpose of protecting the constitutional right to a good name. Accordingly, the appellant was entitled to sue directly for damages under this heading. Neither an action in contract nor an action for defamation would have afforded sufficient protection. The sum of €20,000 was awarded in this respect.
82. In this regard, Hogan J. referred to a potential argument that this particular heading of loss should have been dealt with as part of the main Francovich claim, rather than as a remedy for breach of a constitutional right. He considered that since, in his opinion, Irish law afforded the remedy in a case of this kind, the principle of equivalence required that it be made available even if the claim was exclusively regarded as a claim for damages arising from a breach of EU law.
The judgment of the Court of Appeal
83. The Court of Appeal rejected Hogan J.’s analysis comprehensively. It ruled, firstly, that there was no liability in relation to the breach of EU law by reference to any of the criteria set out in Brasserie du Pêcheur. The argument of the Minister – that there had been substantial uncertainty about the issue until the ruling in Lassal – was accepted, with the decision of the Court of Justice in that case being described as demonstrating the complexity of the matter. It was relevant that Ireland was not alone in its interpretation.
84. Ryan P. said (at p.18):
“It is difficult to understand how there could be a finding that the State manifestly and gravely disregarded the limits on its discretion when all the relevant personnel were working honestly to implement the Directive, which is precisely what the court found. The most that can be said, and the worst that can be said, is that the State made a mistake. And insofar as it did so, it was not alone….
However, it seems to me that in the case of an honest mistake or an honestly differing interpretation that is not actuated by any wrongful motive, it would be absurd to declare that the State on the ‘losing’ side manifestly and gravely disregarded the limits of its discretion.”
85. The judgment goes on to refer to the finding of fact that all decision-makers had acted honestly, and that the officials had genuinely believed that their national measures “faithfully reflected the regime contained in the Directive”.
86. The Court found that the error of law was excusable, in that the State had not adopted a “bizarre or eccentric” understanding of what was required. A number of Member States had understood the Directive to mean something different, and in the absence of any basis for considering that their view was untenable it had to be considered as excusable.
87. It was accepted that it could not be said that a Community institution contributed to the error. However, it was observed that the Commission had made no adverse comment on the Irish regulations. That fact was seen as being of some relevance to some of the other considerations such as the obviousness of the omission, or whether it was intentional or excusable.
88. The State was described as having abided by the judgment in Lassal. It had changed its rules. There had been no effort to retain a national measure or practice contrary to EU law.
89. Finally, on this aspect, the Court of Appeal considered that the fact that the trial judge had found it necessary to seek the assistance of the Court of Justice could not be ignored. It was not decisive, but was “self-evidently” relevant on the question of obviousness. Ryan P. said in this regard:
“It seems to me to be more or less obvious that if one has to refer the matter to Europe – the test in Article 267 is ‘necessary’ – one cannot simply declare that the matter is so clear that it constitutes manifest and grave disregard of the obligation.”
90. On the constitutional issues, the Court of Appeal held that the protection afforded by Article 40.3.2 was provided by statute and by the common law of tort and contract. Ryan P. said (at paragraph 37):
“There are occasions when common law and legislation fail to provide a remedy in particular circumstances where it is open to the courts to invoke the constitution as a free-standing source of legal remedy. But it is not a bolt-on cause of action when there is no case otherwise; neither is it available as an alternative when all fruit fails at common law.”
91. Reference was made here to the judgment of Barrington J. in McDonnell v. Ireland [1998] 1 I.R. 134, where it was observed that constitutional rights should not be regarded as “wild cards” that could be played at any time to defeat existing rules. If the general law provides an adequate remedy, an injured party may not ask the court to devise a new and different cause of action.
92. On the facts of the case, the appellant had been dismissed by An Post because the law did not permit him to be employed. The dismissal was distressing but there was nothing about it that was humiliating, demeaning or disrespectful. The approach taken by the High Court judge would have meant that there was a parallel constitutional right to damages in every case of unfair or wrongful dismissal.
93. The injury suffered was because of EU law, not domestic law, and if there was no entitlement to damages under European law it followed that there could be no claim under domestic law.
Discussion
94. Dealing firstly with the breach of EU law, it must be determined whether the criteria set out in Brasserie du Pêcheur have been met. It has been clear throughout this case that there is no element of discretion on the part of the State in implementing the Directive, and accordingly the question really is whether there was a manifest error by the State in its interpretation of the relevant measures. It seems to me that the first consideration for a court engaged in an assessment of the seriousness and excusability of an admitted breach must be the precise identification of how the breach arose. What exactly was the error of law on the part of the Minister? The answer to this question is not as clear as might have been desirable, and it has to be observed that when the appellant claimed in correspondence in 2007 that he had an entitlement under the Directive no part of the response addressed the argument.
95. To start with the obvious, the problem in this case was not the result of a failure to legislate, or a failure to legislate within the stipulated time. Nor did it arise from the wording of the statutory instrument. This is not a case of defective transposition – the Regulations are almost identical to the relevant parts of the Directive, and the issue did not arise from such differences in wording as can be identified. Despite the criticism of those differences by the consultants engaged by the Commission, and despite the submissions made by the Commission in the preliminary reference, the evidence is that the Minister never took the view that pre-30th April, 2006, residence had no legal effect as far as the new rules were concerned. There was, therefore, no disregard of the principle that the rules were to be applied to the present effects of situations that arose prior to transposition. Article 3 of the 2006 Regulations made it clear that previous lawful residence could be relied upon for the purpose of the new rights.
96. It does seem clear that there was an issue raised in both this case and in the application before Charleton J. as to whether a person could be said to be “residing with” an EU citizen spouse who had left the State and from whom he was separated. That question was dealt with in the reference by Hogan J. It was also argued before Hogan J. that, in order to establish lawful residence prior to the introduction of the 2006 Regulations, the third-country spouse had to be actually provided with accommodation by the EU citizen spouse. That too was dealt with in the reference. However, having regard to the evidence adduced in the High Court, the primary issue seems to have arisen from the fact that the appellant’s five year period of lawful residence had been completed before the Directive and the implementing regulations came into force, that his wife had left the State prior to that date, and that the continued presence of the appellant in the State after her departure was unauthorised. The logic of the Minister’s position then was that, had the wife remained in the State and been present here exercising EU rights on the 30th April, 2006, there would have been no issue as to her entitlement to permanent residence. That being so, the personal right to residence on the part of the appellant, to whom she was still married, would not have been in question.
97. The problem in the appellant’s case therefore arose from the absence of his wife after December, 2004. There was an acceptance that the Regulations could encompass pre-30th April, 2006, residence, but not, it seems, that Regulation 12(3) of the statutory instrument might apply to her absence. Under that Regulation, as under Article 16(4) of the Directive, the right to permanent residence, once acquired, can only be lost by an absence of more than two consecutive years. The appellant’s wife had not been absent from the State for that length of time when the Regulations came into force. Applying the principle that “present effect” was to be given to situations that arose prior to the making of the Regulations, she therefore acquired a right to permanent residence on the 30th April, 2006, and could have returned to invoke it at any stage between that date and December, 2006. The appellant’s rights derived from hers, and he therefore was entitled to claim a right of residence as of the 30th April, 2006.
98. The question then is whether the error on the part of the Minister when making the decision against the appellant in September, 2007 was excusable or inexcusable.
99. On one view, it might be argued that the mistake was obvious in that, while there was an undoubted acknowledgement that pre-April, 2006 residence was capable of attracting the application of the Regulations, there was a failure to follow through on that by applying the entirety of the Regulations to the situation. One might further argue that the Minister could not complain of imprecision or difficulties in interpreting the Directive, or in this State’s implementing legislation, when the issue arose from a failure to fully apply relevant rules that were set out identically in both instruments.
100. However, it would have to be accepted that this particular analysis has not been considered at any stage in this litigation. That fact in itself could be considered a strong argument to the effect that the matter was not clear-cut. More importantly, the Court of Justice did not approach the issue in this manner in Lassal. As noted in paragraph 54 above, that Court’s view was that it did not expressly follow from the terms of Article 16 that absence from the host State (for less than two years) at the relevant date did not prevent the acquisition of the right of residence. In other words, the Court’s ruling proceeded on the basis of a contextual analysis with reference to the objectives, scheme and spirit of the Directive rather than on any finding that the terms of the Directive expressly mandated a particular result.
101. The issue of liability in damages falls to be considered by reference to the criteria set out in Brasserie du Pêcheur and Factortame. It is clear that, by reference to those criteria, it is not sufficient for an aggrieved person to establish as a fact that the State misunderstood or misapplied a provision of EU law and that he or she suffered loss as a result. On the other hand, it does not suffice for a successful defence to a claim of this nature that officials acted honestly on foot of a misapprehension that was not “bizarre or eccentric”. Having regard to paragraph 2 of the conclusions in Brasserie du Pêcheur those considerations cannot be all that is required to establish excusability, and in my view the decision of the Court of Appeal lays too great an emphasis on them. Good faith is certainly relevant to the extent that a finding of improper motivation would probably be decisive as against the State, as counsel for the State parties accepts. However, good faith and honest misapprehension cannot be sufficient to excuse the State from liability in an appropriate case. Similarly, a mistake as to the true meaning of a legal measure might be shared with the authorities of one or more other Member States, and yet, objectively, be clearly wrong.
102. In the circumstances of this case, it seems to me that the appellant’s application to the Minister in March, 2007 raised two significant problems that can be summarised as follows:
(i) The appellant’s wife had left the State in December, 2004. Under the then-current regime the appellant had no further right of residence, and he was refused an extension of leave to reside in 2005. That gave rise to a question whether it was possible for him, as a person whose presence was not authorised at the time, to acquire rights on the coming into force of the new Directive and domestic regulations in 2006.
(ii) The appellant and his wife had, as a matter of fact, separated and were not living together before she left. That raised the question whether he could be said, as a matter of law, to have been legally residing with her either before or after her departure.
103. The Minister’s answer, as set out in the decision of the 19th September, 2007, was that the appellant’s right to residence depended on the ongoing exercise of EU rights by his wife. Was this manifestly wrong?
104. In my view both of these issues gave rise to complex considerations that were not expressly covered by the terms of the Directive. While the rulings of the Court of Justice in Lassal and in this case are clearly determinative of the issues it cannot, in my opinion, be said that the answers to the questions were obvious, or that the Directive was so clear and precise as to render the error on the part of the State authorities “grave and manifest” or “inexcusable”. It is relevant to note that the Commission, in its correspondence and its communication to the Parliament, appears to have taken the position at least at some stage that, if the facts of the case were as they ultimately turned out to be, the appellant did not have a valid claim.
105. In my view, therefore, the criteria for liability for Francovich damages were not satisfied and the learned High Court judge was incorrect in this respect.
106. The sum of €107,905 for loss of earnings was awarded as being in respect of the breach of the appellant’s rights under EU law. The Court of Appeal was right to hold that this award could not stand. I would simply add that even if the criteria for Francovich damages had been met, I do not believe that the award could have been upheld. The appellant was offered his job back at the Employment Appeals Tribunal hearing and the trial judge found that if he accepted the offer he would have been back in employment within one year of his dismissal. That should therefore have been the limit on any damages in any event. As it happened, he refused the offer because, he said, he intended to engage in a business venture. The argument that the offer of re-engagement was not in writing may or may not have been something of an afterthought, but certainly was not communicated at the time. In my view the date of that refusal was the cut-off point for the assessment of loss – to rule otherwise was, in effect, to hold the State liable for the financial failure of the business, since it is inconceivable that a court could have awarded six years loss of earnings if in fact he had earned a larger income during that time.
Is there a separate remedy under domestic law?
107. The appellant has, in addition to the claim under Francovich criteria, sought damages for breach of his constitutional rights. The High Court judge found that a dismissal from employment that was brought about by operation of law (as opposed to a decision by an employer) engaged the protection of property rights afforded by Article 40.3.2 of the Constitution. He considered that the award of Francovich damages provided an effective and adequate protection of the property rights associated with the appellant’s employment. However, he then went on to find that the ordinary law did not afford the appellant an effective remedy, such that no “injustice” was done for the purposes of Article 40.3.2, in respect of damage done to the appellant’s reputation by the dismissal. This was because neither the law of contract nor the tort of defamation would afford such a remedy. The learned judge did refer to the possibility that this situation might have been capable of being remedied by means of proceedings under the Unfair Dismissals Acts 1977 to 2007:
“ but, as we have seen, the Employment Appeals Tribunal rejected the claim that the dismissal was unfair.”
108. It was therefore necessary, in his view, to award damages for the breach of the constitutional right to a good name.
109. I consider that the Court of Appeal was correct in overturning this finding. In the first instance, I agree with that Court that there was as a matter of fact no defamatory aspect and no damage to the appellant’s reputation involved in his dismissal. He lost his job because from the employer’s point of view he did not, at the time the issue arose, have permission to work. The dismissal was effected by a letter that made it clear that he could have his job back if the situation changed. It is simply not the case that a dismissal brought about because of a statutory bar on continued employment necessarily affects the employee’s reputation and I do not see that it did so in this case.
110. The appellant has argued that, even if the conditions for Francovich liability are not met, he can rely on domestic law for the purpose of giving full effect to the Directive. That is, in itself, an uncontroversial statement in that the right to invoke the jurisdiction of the national courts to ensure enforcement of EU law does not depend on the same criteria as those establishing a right to damages for a breach of that law. The question here, however, is whether domestic law can grant the remedy of damages for a loss brought about by a breach of EU law on the part of the State. The issue arises because part of the reasoning of the Court of Appeal in relation to the High Court award of damages for injury to reputation was that no such award could be made where the cause of action arose purely in the context of EU law.
111. I agree with the conclusion of the Court of Appeal, although I consider that it is possible, depending on the facts of a given case, that a breach of EU law could as a matter of fact be accompanied by features giving rise to independent claims under Irish law. There would arguably be no objection to an award in this case if, for instance, the employer had in fact dismissed the appellant in a manner that wrongfully damaged his reputation. In those circumstances, the reason for the dismissal would still have fallen to be considered by reference to EU law, since both the right to employment claimed by the appellant and the sole reason for its denial were rooted in EU legal instruments. However, behaviour by an employer that was unrelated to EU law could conceivably have created an independent cause of action under Irish law.
112. As already stated, the sole reason for the loss of the appellant’s employment was the incorrect interpretation of EU law by the Minister. Domestic law undoubtedly gives an individual in this position a right to apply to the courts for enforcement of the correct interpretation of that law. The national courts also have jurisdiction to determine whether, as a matter of EU law, damages can be awarded under EU law criteria. What cannot be done is to find a free-standing right to damages under national law where the Francovich criteria are not satisfied, if the wrong done is a wrong under EU law. The latter is a separate legal order, with autonomous concepts that must be applied uniformly throughout the Union (see Dias and Ziolkowski, referred to above, on the question whether rights of residence conferred by national law could confer rights under EU law). In the circumstances of this case it was the sole source of the rights claimed by the appellant. It does not give rise to separate rights under domestic law.
Conclusion
113. In summary, the appellant has undoubtedly been injured by the mistaken interpretation of the relevant EU law on the part of the Minister. He lost his employment and was threatened with deportation. Both of these events are likely to have caused him distress. However, the right to damages as a remedy for breach of European Union law requires him to demonstrate, not just that an error of law caused his loss, but that the error of law concerned was inexcusable. In the circumstances of this case I consider that it was not, and that no right of his under the national legal order has been infringed such as to give rise to a right to damages. I would dismiss the appeal.
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