The High Court has quashed the Minister for Justice’s refusal of a residence card to a non-EEA national divorced from an EU citizen, after finding that the decision-making process overlooked relevant evidence about the former spouse’s work and unemployment.
In a judgment delivered on 1 February 2023, Ms Justice Siobhán Phelan also extended the time for the judicial review. The papers were filed one day beyond the three-month limit and leave was sought eight days late. She found the delay short, no identifiable prejudice to the Minister, and significant prejudice to the applicant if he could not challenge a decision affecting his continued residence after more than 20 years in Ireland.
The applicant’s residence permission had been based on his marriage to an EU citizen. Their divorce proceedings began in June 2014, and the marriage had lasted five years. In 2018, he applied to retain residence in his own right. The Minister refused the application, concluding that his former spouse was not exercising EU Treaty rights when the divorce proceedings began.
The Minister’s review decision focused on records of 37 weeks of employment in 2013 and two weeks in 2014, and found no evidence that the former spouse had been involuntarily unemployed after more than a year in work. It also said that the Department of Employment Affairs and Social Protection’s award of Jobseeker’s Allowance did not determine the EU Treaty rights question.
The court agreed that the allowance award was not conclusive. But the judgment said it could support a finding of involuntary unemployment because eligibility required the department to assess whether the claimant was capable of and available for work, and genuinely seeking suitable employment. The Minister had discounted that evidence without weighing its potential relevance.
The court also found that the Minister had focused on the 12 months immediately before the divorce proceedings, without considering the former spouse’s earlier activity. The file referred to residence and employment during 2009 to 2013, but did not set out the duration of earlier jobs or contribution records for 2009 to 2012. The court held that the rules did not require a qualifying year of employment to be continuous or immediately before registration as unemployed. Whether earlier work and any gaps established retained residence rights remained for the Minister to assess on the evidence.
The judgment also found a fairness concern in the failure to disclose, in redacted or otherwise suitable form, contribution information for 2009 to 2012, if it was held by the Minister. The applicant had sought the information and said his former spouse had not cooperated with requests for assistance.
The court did not decide that the applicant was entitled to a residence card. It extended time and made an order of certiorari quashing the refusal communicated on 22 November 2021, leaving the underlying residence question for reconsideration.