The High Court has dismissed a Nigerian national’s challenge to a decision that he had no right to permanent residence in Ireland, finding that the periods supported by the evidence fell short of the five years required under EU law.
The judicial review concerned a decision dated 22 January 2016 by the Minister for Justice and Equality. The applicant had sought an order quashing it. Mr Justice David Keane said the applicant had no entitlement to that relief and dismissed the proceedings. He said he would hear the parties on the appropriate consequential orders. The court also directed that the proceedings be struck out against the Minister for Social Protection because leave had not been granted to seek relief against that respondent.
The applicant, who said he entered Ireland in 2003, married a Polish Union citizen on 9 March 2005. The Minister granted him five years’ residence permission in January 2006 as the spouse of a Union citizen exercising EU treaty rights. The evidence indicated that his spouse began working in Ireland on 21 August 2004 and left on 7 July 2009. The judge said she was more than a month short of five years as a worker in Ireland, while the applicant was almost four months short of five years residing legally with her as her spouse before she left.
The applicant relied on EU decisions concerning permanent residence and argued that time before his spouse began work, and the first six months after her departure, should count toward the qualifying period. The judge rejected those arguments. He said time spent seeking work or residing under the EU’s three-month residence provision did not count toward the five-year period in this case. He also rejected the argument that the first six months after a longer-term or permanent departure could be treated as a temporary absence.
The applicant also pointed to departmental records that, he argued, might show his spouse had an address in Ireland and was receiving child benefit in June 2011. The judge said it was unclear whether the records supported that interpretation. In any event, they had not been put to the Minister before the challenged decision and could not be used to overturn it in this judicial review. The judgment said the applicant was not precluded from making a case about his spouse’s alleged continued residence to the Minister, if he wished to do so.