Judgment: 2020-12-21 · Court archive

Supreme Court refers EU household test to Luxembourg in cousin’s residence case

The Court set out how Irish courts should approach other language versions of EU law, then referred questions about “member of the household” to the Court of Justice of the European Union.

The Supreme Court · [2020] IESC 78

Who, what, where, when and why

Who
  • Sheharyar Rahim Subhan
  • Asif Ali (Appellant)
  • Peter Charleton (Judge)
What

The Court set out how Irish courts should approach other language versions of EU law, then referred questions about “member of the household” to the Court of Justice of the European Union.

Where

Places mentioned in the report

  • Ireland
When

Judgment:

Why

Reasons reported in the judgment

The Minister refused the application. The review decision said that, although Mr Ali had shown he lived at the same address as Mr Subhan in the United Kingdom, he had not established that Mr Subhan was the head of that household. The High Court dismissed the judicial review challenge. It also rejected Mr Ali’s claim that he was dependent on Mr Subhan, and that dependency issue did not remain on this appeal.

The Supreme Court has asked the Court of Justice of the European Union (CJEU) to clarify who qualifies as a member of an EU citizen’s household for the purposes of free movement rights. The referral leaves that legal question unresolved; the Court did not decide whether Asif Ali qualifies for an Irish residence card.

The case concerns Mr Ali, a Pakistani national, and his first cousin, Sheharyar Rahim Subhan, who became a naturalised British citizen in 2013 and moved to Ireland in January 2015. Mr Ali says they lived together in Britain while he studied there and that he was part of Mr Subhan’s household. He entered Ireland in March 2015 and applied for a residence card as a permitted family member under the European Communities (Free Movement of Persons) Regulations 2006.

The Minister refused the application. The review decision said that, although Mr Ali had shown he lived at the same address as Mr Subhan in the United Kingdom, he had not established that Mr Subhan was the head of that household. The High Court dismissed the judicial review challenge. It also rejected Mr Ali’s claim that he was dependent on Mr Subhan, and that dependency issue did not remain on this appeal.

The Court of Appeal considered what “member of the household” means under EU law. Its discussion described factors including whether the living arrangement was durable, more than convenient, and part of the EU citizen’s core family life. Those observations were part of the prior appellate consideration; the Supreme Court did not settle the test.

Delivering the Supreme Court judgment, Mr Justice Peter Charleton said the English and Irish versions of EU legislation are legally valid in Ireland. Courts should ordinarily interpret those texts using their context, purpose and recitals. If ambiguity remains and another language version is relied on, the party should give advance notice and identify the asserted nuance. Where the opposing party disputes a translation’s meaning, the issue may require evidence. The judgment said consultation of other language versions is for clarification, not to create uncertainty where ordinary interpretive tools resolve the text.

The Court held that the meaning of “member of the household” was not acte clair and that common EU criteria were desirable. It therefore made a preliminary reference to the CJEU, appending five proposed questions. They ask whether household membership requires the EU citizen to be the household’s head; whether future living intentions matter; whether past shared residence alone may suffice; and how national courts may treat other language versions and informal translations.

The judgment resolves the approach to language versions but leaves the household issue for the CJEU. It makes no final determination of Mr Ali’s entitlement to residence.

Read the original court judgment

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