The Supreme Court ruled that the arrest of a Pakistani former student for deportation was unlawful because he had applied for a residence card and the application was still pending when he was arrested. The court held that the governing regulations allowed an applicant to remain in Ireland while awaiting a decision, without first proving a preliminary case that he qualified for a card.
The judgment, delivered by Mr Justice Peter Charleton on 27 May 2019, arose from an application under Article 40.4 of the Constitution challenging the applicant’s custody. The court said the sole issue was whether he was lawfully detained when arrested on 20 June 2018. He had been granted bail earlier in the proceedings.
The applicant, identified as SS (Pakistan), applied for a residence card on 30 January 2018. He claimed to be a dependent adult child of his father’s alleged Romanian spouse, an EU citizen. The Minister refused the application in a decision dated 21 June 2018, after the arrest. The refusal said the applicant was not dependent on the EU citizen and therefore was not a qualifying family member.
The High Court and Court of Appeal had found the custody lawful. They interpreted the rules as requiring an applicant relying on adult dependency to establish, at the outset, a prima facie basis for being a qualifying family member before gaining the right to remain while the application was considered.
The Supreme Court rejected that interpretation. It said the Minister had not operated a two-stage process in which a preliminary eligibility assessment was followed by a full examination. The regulations contained no such requirement, and their words could not be read to add one. The court also said the right to remain pending a decision appeared in the Irish regulations but not in the EU directive. It did not decide whether EU law independently conferred such a right, or whether the applicant’s claim was genuine.
The court concluded that the arrest was unlawful and that, when the Article 40 application was made, the applicant was not detained in accordance with law. Its order addressed the legality of that detention. The judgment made no determination on whether the deportation order should ultimately be enforced, and expressly left that question open.