The Court of Appeal has dismissed an appeal by a Nigerian man who sought permanent residence in Ireland through his marriage to a Polish EU citizen.
In a judgment delivered on 28 November 2019, the court upheld the High Court’s refusal to quash a January 2016 decision rejecting his application. It also declined to refer questions to the Court of Justice of the European Union and upheld the striking out of proceedings against the fourth named respondent, against whom no relief had been sought.
The man entered Ireland unlawfully in February 2003, according to the judgment, and later applied unsuccessfully for asylum. He married the Polish citizen on 9 March 2005. She had begun working and living in Ireland on 21 August 2004. He was granted permission to reside for five years as her spouse in January 2006.
The judgment records differing dates for her departure, including 7 and 29 July 2009. The Court of Appeal said the discrepancy did not affect the result: on either date, she had not completed five years’ continuous qualifying residence in Ireland. The court also found no evidence that she returned after leaving.
The man applied for permanent residence in October 2015, relying on EU rules that provide for permanent residence after five years of qualifying residence. The court explained that a non-EU family member’s entitlement depends on the EU citizen meeting the residence conditions and the family member having lived with that citizen for the required period.
The man argued that an initial period before his wife began employment should count and that her first six months away could be treated as a temporary absence. The Court of Appeal agreed with the High Court that neither argument succeeded. It said the periods counted had to meet the relevant EU residence conditions and that the evidence showed her absence was not temporary within the meaning of the rules.
The judgment also noted an eight-month shortfall in the man’s qualifying residence as a spouse. It said the High Court’s reference to a four-month shortfall was an accepted calculation error, but that error did not change the outcome.
The appeal was dismissed. The court said the relevant EU case law had already resolved the issues and that a preliminary reference would serve no useful purpose.