The High Court has refused all relief sought by Ndubisi Uche in a challenge to a Minister for Justice and Equality review decision concerning his application for a permanent residence card.
In a judgment delivered on 4 March 2019, Mr Justice Max Barrett said Mr Uche, a non-EU national, married a Czech national in April 2011. Mr Uche claimed she left Ireland in August 2016 and that they had been lawfully resident in Ireland for five years before her departure under the European Communities (Free Movement of Persons) Regulations 2015. He applied for a permanent residence card under those regulations.
Mr Uche argued that the Minister had breached fair procedures by raising, for the first time in a review decision dated 18 December 2017, an issue about the details of his wife’s residence in Ireland. The judge found that the issue had already been raised in a proposal to refuse the application on 9 June 2017 and in an initial refusal on 30 June 2017. He said the issue had not come “out of the blue” and was known to Mr Uche as a matter he needed to address. As the factual basis of that fair-procedures argument was wrong, the judge said it did not require further consideration.
Mr Uche also argued that the Minister was mistaken in deciding that his wife needed to be employed or self-employed, or to have sufficient resources and comprehensive sickness insurance, even though Mr Uche was economically active. The judge rejected that argument. He said a non-EU spouse could remain in Ireland for more than three months where the EU spouse met one of the conditions in regulation 6(3)(a)(i) to (iii). Although sufficient resources under regulation 6(3)(a)(ii) were not limited to resources held or earned by the EU national, the non-EU spouse’s employment alone did not meet the regulation’s requirements.
The court noted that a possible change in the law following future European Court of Justice decisions did not assist Mr Uche at that time. It refused his application for certiorari to quash the review decision and the associated reliefs. The judgment does not set out the underlying application’s full evidential record.