Judgment: 2009-10-15 · Court archive

High Court rejects challenge to refusal of permanent residence certificate

The court held that a five-year residence period for permanent residence had to be completed under EU free-movement rules; the applicant’s earlier residence in Ireland under national permission did not count.

The High Court · [2009] IEHC 447

Who, what, where, when and why

Who
  • Ireland
What

The court held that a five-year residence period for permanent residence had to be completed under EU free-movement rules; the applicant’s earlier residence in Ireland under national permission did not count.

Where

Places mentioned in the report

  • Ireland
  • Romania
When

Judgment:

Other dates in the report
  • 1 January 2007

    Mr Justice Cooke held that the 2006 Regulations implemented the directive and required five years’ residence in compliance with the EU rules. Before 1 January 2007, the applicant was not an EU citizen and his residence was based on domestic permission for a non-EU national, rather than the rights and conditions in the directive. The court said the Europe Agreement protected Romanian workers against nationality discrimination in specified employment matters, but did not confer a residence entitlement that counted towards the five-year period.

Why

Reasons reported in the judgment

The High Court has rejected a Romanian national’s judicial review challenge to the refusal of a permanent residence certificate, holding that his residence in Ireland before Romania joined the European Union could not count towards the required five-year period under EU free-movement rules.

The High Court has rejected a Romanian national’s judicial review challenge to the refusal of a permanent residence certificate, holding that his residence in Ireland before Romania joined the European Union could not count towards the required five-year period under EU free-movement rules.

The applicant arrived in Ireland in August 1999 and, after an unsuccessful asylum application, was permitted to reside and work in the State from October 2000. His wife and children joined him in 2002. In November 2007, after more than five years’ residence, he applied for a certificate under the European Communities (Freedom of Movement of Persons) Regulations 2006.

The Minister refused the application in March 2008, saying the documents did not establish five years’ continuous residence. After the applicant’s solicitors sought reconsideration, the refusal was confirmed in June 2008. The Minister’s position was that the applicant could not apply on the relevant EU-citizen form until January 2012, five years after Romania’s accession to the EU.

The applicant argued that his lawful residence from 2000 should count. He relied on the EU directive providing permanent residence after five years’ legal residence, and on protections for Romanian workers under the Europe Agreement between the European Communities and Romania. He contended that the Minister had wrongly limited the calculation to residence after accession.

Mr Justice Cooke held that the 2006 Regulations implemented the directive and required five years’ residence in compliance with the EU rules. Before 1 January 2007, the applicant was not an EU citizen and his residence was based on domestic permission for a non-EU national, rather than the rights and conditions in the directive. The court said the Europe Agreement protected Romanian workers against nationality discrimination in specified employment matters, but did not confer a residence entitlement that counted towards the five-year period.

The court rejected the applicant’s judicial review application, finding that the asserted ground of illegality had not been made out. The judgment rejected the challenge to the Minister’s decision; it did not grant the certificate or make any separate order directing reconsideration.

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