The High Court has set aside a decision by the Minister for Justice rejecting Khalid Mohamed Said Hussain Elbahlawan’s claim that the Chenchooliah ruling applied to his immigration case. The court found that the decision did not adequately explain why or when any rights arising from that ruling had ceased to apply. It remitted the matter to the Minister for reconsideration, without deciding the underlying claim.
Mr Justice Barr delivered judgment on 23 February 2024 in judicial review proceedings challenging the Minister’s decision of 6 December 2022. The applicant sought certiorari, an order quashing that decision. The court also extended the time for bringing the proceedings to 20 June 2023, the date leave was granted. Final orders and costs remained to be addressed: the parties were invited to make written submissions, and the case was listed for mention on 14 March 2024.
The applicant had held EU Treaty Rights as the qualifying family member of his Swedish wife, Ms Bjuhr, from 2010. After their marriage broke down and she left Ireland, his permission was revoked in April 2013. The judgment records that he later received discretionary Stamp 4 permission to remain, which was renewed in 2016. He left Ireland for Egypt in 2018 and returned in January 2022.
In July 2022, his solicitor asked the Minister to consider whether the Court of Justice of the European Union’s Chenchooliah ruling applied. The Minister rejected that position, saying he had not been accepted as a permitted family member under the relevant free movement regulations and that those regulations no longer applied once his EU national spouse stopped exercising Treaty Rights in Ireland.
The Minister’s counsel argued in court that events between 2013 and 2022—including the applicant’s national-law permissions, departure from Ireland and later applications—meant any rights associated with Chenchooliah had been spent or eclipsed. The judge said there was merit in that argument, but it was not reflected in the Minister’s brief decision.
The court said the decision did not acknowledge that the applicant had previously held EU Treaty Rights and may have had derivative rights under Chenchooliah after his wife left. It also failed to explain when those rights had become spent. The judge said the decision appeared to suggest that the relevant protections ended when the wife left, although the Chenchooliah ruling concerns protections that may apply after an EU citizen’s departure.
The court did not decide whether the applicant can rely on those protections now. That question must be considered afresh by the Minister, with adequate reasons.