The High Court refused substantive orders in two challenges to decisions affecting residence rights and made no positive order in a third. It awarded the three applicants the costs associated with referring questions to the Court of Justice of the European Union (CJEU), while refusing them costs for the domestic parts of their cases and declining the State’s application for costs.
Mr Justice Mac Eochaidh delivered the judgment on 8 April 2016 in proceedings brought by Kuldip Singh, Denzel Njume and Khaled Aly against the Minister for Justice and Equality. The cases concerned non-EU nationals whose EU citizen spouses had left Ireland and whose marriages later ended in divorce. The Minister had refused to retain or revoked permissions to reside, relying on the spouses’ departure or their cessation of qualifying EU activity.
The High Court had referred questions to the CJEU about whether residence rights could be retained after a spouse’s departure, whether a non-EU spouse’s resources could count towards the EU citizen’s “sufficient resources”, and whether the non-EU spouse could work to provide those resources. The CJEU ruled that a non-EU spouse could retain a right under Article 13(2) of the Citizens Directive only if the EU citizen spouse resided in the host state in accordance with Article 7 up to the start of divorce proceedings. The CJEU also answered the resources question.
In Singh’s and Njume’s cases, the applicants sought substantive orders after the CJEU ruling. The High Court said its answer on the first question required it to refuse certiorari, which would have quashed the decisions. It also refused the proposed alternative orders, finding they did not assist the applicants or address the dispute for which leave had been granted. Aly sought no positive substantive order.
On costs, the judge found the applicants had fundamentally failed in the domestic judicial review proceedings. However, he treated the EU reference as a separate part of the cases. He cited conflicting Irish High Court decisions, the unresolved state of EU law, and the CJEU’s clarification of an unexplored area with wider importance. Although the applicants did not succeed on the main referred issue, they had considerable success on the resources question, on which the State’s position had shifted during the proceedings.
The court awarded the applicants the costs of the reference, including preparation of the reference order. It left the precise allocation to be addressed by the parties because the three applicants had cooperated on a single reference. The judgment did not award costs for the domestic proceedings and did not quash or otherwise change the challenged decisions.