The High Court has quashed the Minister for Justice’s review decision refusing Muhammad Uzair Pervaiz’s application to be treated as a permitted family member of an EU citizen, and remitted the application for fresh consideration.
In a judgment delivered on 6 June 2019, Mr Justice Max Barrett found that the rules and guidance used to assess whether a relationship was “durable” were unclear. That uncertainty made it difficult for applicants to know what evidence to provide and prevented meaningful judicial review of decisions, the judge said.
Pervaiz, a non-EU national, said he had lived in Dublin with his EU-national girlfriend since September 2016. He applied in September 2017 under the European Communities (Free Movement of Persons) Regulations 2015. The Minister refused the application and upheld that decision on internal review on 14 May 2018, finding that the relationship had not been adequately established.
The review decision cited insufficient evidence of two years’ cohabitation and a lack of evidence such as jointly owned assets, shared accounts, travel or children. But an official’s evidence in the court proceedings said the two-year period could be reduced depending on the other evidence. The judgment said the decision did not explain whether a shorter period had been considered or how the evidence was weighed.
The judge also criticised the focus on cohabitation and particular forms of shared finances or lifestyle. The regulations required evidence of a durable relationship, he said, and did not require couples to live together or have a physical sexual relationship. A durable relationship could exist without jointly held assets, a shared bank account, travel or children.
The court concluded that the approach breached the EU-law principle of effectiveness and the rule of law, and failed to provide basic procedural fairness. It also found that, in this case, the lack of a clear standard meant judicial review did not meet the requirements of Article 47 of the EU Charter of Fundamental Rights.
The court did not find that Pervaiz had established a durable relationship or direct that his application be granted. It ordered the review decision quashed and the application returned to the Minister for fresh consideration. The judge noted that Pervaiz’s claims about the relationship remained his claims and said the order did not bind his girlfriend.