The High Court has quashed a decision refusing a Turkish national a residence card as the husband of a Polish EU citizen, finding that the Department’s unexplained inability to contact employers was not a valid reason to reject the application.
In a judgment delivered on 16 February 2011, Mr Justice Cooke ruled that the Minister for Justice could make reasonable checks on whether the conditions for a residence card were met. But where employment was supported by documents from third parties, a refusal based simply on unsuccessful attempts to make contact with employers was inadequate.
The applicants said they met in Limerick in December 2006, became engaged in October 2008 and married in Clonmel, Co Tipperary, in March 2009. The first applicant, a Polish national, had worked for Dell Products Manufacturing Limited in Limerick before being made redundant in August 2008. She said she later found work at a Turkish restaurant in Sligo.
The second applicant, a Turkish national, applied for a residence card in April 2009 as the family member of an EU citizen who was working in Ireland. The application included a marriage certificate, residence documents and employment material, including tax forms, payslips and a letter from the applicant’s current employer. The Department also requested a tenancy registration certificate and a tax statement.
The Department refused the application in September 2009, saying it could not verify that the Polish applicant was exercising EU treaty rights through employment. An internal memorandum recorded that officials had tried several times to contact employers but had been unable to do so. The first applicant said her employer had received no contact from the Department. The judge noted that no affidavit had been filed by the officials named in the memorandum and that the respondent did not contest her evidence in its replying affidavit.
The Minister argued that he could verify the information and documents and that the applicants’ administrative review had not yet been decided. The court held that the Minister could check whether the named employer existed and whether the EU citizen worked there, but those checks had to be carried out competently and seriously. The judgment said unanswered casual phone calls, without information about when or in what circumstances they were made, did not provide a rational basis to reject the employment claim.
The court quashed the September refusal. It declined to order the Minister to issue the card: the Minister had made a decision for a wrong reason, rather than failed to decide, and remained obliged to determine the application promptly. The judge also said the six-month period for the decision had long expired and that the refusal letter was incorrect in stating that the second applicant’s permission to remain would end on 21 October 2009 if the review had not been decided by then.