The Court of Appeal has referred three questions about residence rights and procedural fairness to the Court of Justice of the European Union (CJEU), leaving the Minister for Justice’s appeal unresolved pending the answers.
The case concerns I.T., a non-EEA national who sought to retain residence permission after divorcing an EU citizen. The Minister refused his application in a decision dated 22 November 2021. The High Court ruled in I.T.’s favour, and the Minister appealed.
The Court of Appeal identified three central issues: whether the Minister gave adequate consideration to information from the Department of Employment Affairs and Social Protection (DEASP); whether the Minister wrongly required a year of employment before the EU citizen’s unemployment to count under the relevant rules; and what consequence should follow from the alleged failure to disclose records of the EU citizen’s employment.
The High Court’s factual findings, as recounted by the appeal court, included that I.T. and the EU citizen married in Ireland in 2009 and divorced in 2014. I.T. received residence permission for five years from 2013. When he later applied to retain permission, the Minister concluded that the EU citizen was not exercising EU Treaty rights when divorce proceedings began. The review decision relied in part on records of 37 weeks of employment in 2013 and two weeks in 2014, and concluded that the required prior year of work had not been established. It acknowledged that she received Jobseeker’s Allowance but said that benefit payments did not determine the EU Treaty rights question.
The appeal court did not decide whether those conclusions were lawful. It referred questions about whether the required year of work must be continuous, whether employment periods accumulated over four or five years could qualify, and whether receipt of Jobseeker’s Allowance amounts to “duly recorded involuntary unemployment”. It also asked whether EU law requires the Minister to provide the relevant file, before deciding an application or when the decision is challenged in judicial review proceedings.
The court said the reference was needed to determine the appeal and that the questions had not previously been decided by the CJEU. It noted that I.T. received permission to reside and work in Ireland in June 2023 as the parent of an Irish citizen child, but accepted the parties’ position that the appeal was not moot because success could provide significantly greater entitlements.
The appeal was listed for mention on 9 May 2024 to address matters arising from the judgment, including costs to that date. The judgment records no final ruling on the appeal’s substantive issues.