The Irish High Court has quashed a decision of the Minister for Justice which refused a non-EU national a residence card on the basis that he was not in a ‘durable relationship’ with his girlfriend, who was an EU national.
Mr Justice Max Barrett in his decision held that the term ‘durable relationship’ was not meaningfully defined either within EU Directive (Art.3(2) of the Citizens” Rights Directive (Directive 2004/38/EC)) or domestic legislation (the EC (Free Movement of Persons) Regulations 2015) which transposes the 2004 Directive into national law. He also noted that the two-year cohabitation bench-mark used by the Minister in assessing whether a relationship is durable, was also not strictly applied. As a result, the decision-making process that was arbitrary, lacked clarity, and left the non-EU national in a situation where they did not know what their rights were, which was in breach of the rule of law.
The applicant, Mr Pervaiz, a non-EU national moved in with his girlfriend, a EU national, in September 2016 and the pair have resided together in Dublin ever since. In September 2017, Mr Pervaiz applied for permission to remain in the State as the family member of an EU national within the meaning of the 2015 Regulations. His initial application failed. He requested an internal review of the decision, which was also unsuccessful as the Minister was not satisfied that his relationship with his girlfriend was durable. He instituted judicial review proceedings on the basis that there was no clear guidance within domestic legislation or issued by the Minister identifying the threshold to be met to determine that a person is in “a ‘durable relationship duly attested’ with an EU citizen”.
The Minister contended that explanatory leaflet for the EU1A application (for permitted family members of EU Citizens) identifies the type of documentation that is required as evidence of a “de facto partner” (romantic partners) and, other than evidence of his cohabitation with his girlfriend, Mr Pervaiz had submitted no documentation to prove that he was in a durable relationship.
Mr Justice Barrett held that the Minister’s focus on cohabitation in assessing the durability of a relationship was skewed and there was no suggestion in the Citizens’ Directive that a couple must be cohabiting in order to be in a durable relationship. He noted that there are various reasons, such as work and other commitments that might force a couple to live apart.
Mr Justice Barrett also held that the evidence of a durable relationship required by the Minister namely, “evidence of jointly owned assets, shared bank account/insurance, evidence of travel, birth certificates of any children” indicated a “particular and regrettably close-minded”, “strikingly middle–income” and “middle-aged dimension” of what constitutes a durable relationship. He noted that “poorer couples, younger couples, and couples comprised of persons who are both younger and poorer”, may not have jointly owned assets, joint bank account, insurance, or sufficient finances to travel. Such couples may also have no children, and yet may still be in an eminently durable relationship. He also noted that some couples, whether rich or poor, in a perfectly durable relationship may decide for valid reasons to operate separate bank accounts.
He concluded by granting an order of certiorari quashing the impugned decision and remitting Mr Pervaiz's application to the Minister for fresh consideration.
Click here for the decision in Pervaiz v The Minister for Justice and Equality.