The High Court dismissed a judicial review brought by S.K. and T.T., upholding the refusal of S.K.’s application for residence as the spouse of an EU citizen and the decision to transfer his asylum claim to Belgium.
In a judgment delivered on 28 May 2007, Mr Justice Hanna found that the European Communities (Free Movement of Persons) Regulations 2006 were within the Minister’s powers. The regulations required a non-EU family member to have been lawfully resident in another EU member state before entering Ireland to accompany or join an EU citizen. The court rejected the applicants’ argument that this requirement went beyond EU law.
S.K., an Indian citizen, had previously applied for asylum in Belgium and was refused. He later lived illegally in the United Kingdom for about three years before coming to Ireland in January 2006 with T.T., an Estonian citizen. They married in Ireland on 18 May 2006. S.K. applied for asylum in Ireland in February, without disclosing his earlier Belgian asylum application or his time in the UK, according to the judgment.
Irish authorities identified the Belgian application through a fingerprint search. Belgium agreed to take S.K. back, and a transfer order was made on 14 June 2006. He did not challenge that determination. After the authorities were notified of the couple’s marriage, his residence application was refused because he had not shown that he had been lawfully resident with his spouse in another EU member state.
The judge relied on affidavit evidence; no oral evidence was heard. He found that S.K. had acted deceitfully in his asylum application and considered it probable that T.T. knew of the deception. The judgment also records that the respondents did not allege the marriage was one of convenience.
The court held that the 2006 regulations reflected the relevant EU law and the European Court of Justice’s ruling in Akrich. It distinguished the Jia case, in which the applicant had been lawfully present in Sweden and was not alleged to be evading immigration law. The judge also concluded that S.K. was not within the Directive’s intended scope when the couple came to Ireland because they were not yet married.
On the constitutional and human-rights arguments, the judge noted that the Minister did not know of the marriage when the transfer order was made. He found no evidence that T.T. could not join S.K. in Belgium, where his asylum claim would be dealt with, and said his Convention rights would be respected there. The court dismissed the application. It did not make a new transfer order in this judgment.