The Court of Appeal has dismissed an appeal by A. R. and N. K. against the refusal of a residence card application for A. R., a Pakistani national who said he was in a durable relationship with N. K., a Hungarian Union citizen.
The appeal concerned a Ministerial decision refusing to treat A. R. as a permitted family member under the European Communities (Free Movement of Persons) Regulations 2015. The couple said they had lived together in Ireland since 2015 and had taken part in a non-binding Islamic marriage ceremony. Their application for permission to marry in Ireland had been refused by the Civil Registration Service on the stated ground that the proposed marriage was one of convenience. An appeal against that refusal remained at a preliminary stage in the Circuit Court; it had not been determined.
The Minister refused the residence card application in July 2017, saying the documents did not establish a durable relationship. The concerns included the tenancy and utility records, the absence of joint financial evidence, and the first appellant’s asylum application, which did not mention a partner. On statutory review, the Minister raised further concerns, including differing accounts of how the couple entered Ireland and of their first date. The first appellant was invited to respond in writing within 21 days but did not do so before the final refusal in March 2018.
The High Court refused judicial review, exercising its discretion because the applicants had not used the opportunity to address the Minister’s concerns. On appeal, Ms Justice Baker held that the High Court was entitled to take that approach and that the failure to engage with the statutory review process precluded relief on the applicants’ challenges to the reasons, fairness and rationality of the decision.
The Court of Appeal also rejected the challenge alleging that the 2015 Regulations had not properly transposed the EU Citizens Directive. It agreed with the High Court’s analysis on that point, while noting that some of the High Court’s comments were obiter, meaning they were not necessary to its decision.
The appeal was dismissed. The Court did not grant judicial review or overturn the Minister’s refusal. It left open the broader question of whether failure to respond to an opportunity to comment could bar judicial review on jurisdictional grounds in another case.