The High Court rejected two legal challenges brought by Muhammad Nadeem over the process used to review the refusal of a residence card, while leaving a separate question about proposed oral evidence for later decision.
Mr Justice Max Barrett delivered the judgment on 29 January 2019. Mr Nadeem, a non-EU national, sought judicial review of the Minister for Justice and Equality’s decision, following an internal review, to refuse him a residence card and to refuse to treat him as a permitted family member of an EU citizen under the 2015 free movement regulations. The judgment describes that citizen as Ms Parveen, his Sharia law wife and a UK national.
The court held that the proceedings were not improperly constituted and that Mr Nadeem did not have to join Ms Parveen as a co-applicant. It said there was no rule requiring a person claiming a derivative right under the regulations to join the person on whom that claimed right depended.
It also rejected the argument that Irish law was incompatible with the EU Citizens’ Rights Directive or Article 47 of the EU Charter because it did not provide an appeal to an independent court or tribunal against the decision. Referring to the Court of Justice of the European Union’s ruling in Banger, Mr Justice Barrett said Irish judicial review could examine whether a refusal had a sufficiently solid factual basis and whether procedural safeguards had been followed. He also referred to Irish case law allowing a decision to be quashed for a material error of fact.
The court therefore found that judicial review, as operated in Ireland in this context, had the features required by Banger and was consistent with Article 47. It declined to refer a question of EU law to the Court of Justice, saying such a reference was not necessary to give judgment.
The judgment did not decide whether the refusal itself should be quashed. It left for later consideration whether Mr Nadeem should be allowed to give oral evidence in support of his claim that the decision involved a material error of fact sufficient to warrant quashing it.