The High Court refused leave to seek judicial review over the refusal of a residence card for an Indian national who applied as the spouse of an EU citizen. The application was heard ex parte on 17 February 2010. The court said the initial refusal was justified on the information provided, while a review of that decision was still pending and had not been unlawfully delayed.
The applicants sought to challenge the Minister for Justice’s decision of 25 June 2009 and to compel a decision on a review requested on 15 July 2009. They also sought a declaration that the first applicant was entitled to a residence card and an order requiring the card to be issued.
The first applicant said he had married the second applicant, whom the judgment describes as a Latvian citizen, in January 2009. The judgment notes that a solicitor’s letter had instead described her as Lithuanian; counsel said that was a mistake. The first applicant said she had worked part-time as a house cleaner and at a restaurant, but the court noted that the application initially included no direct evidence establishing her employment or other basis for exercising EU residence rights. She had stopped work in September 2008, according to his affidavit.
The court said the Minister had invited evidence of the second applicant’s exercise of EU Treaty rights in January 2009. The response included a doctor’s letter saying she was unfit to work. The residence-card application listed “Mother India” under occupation, but the judgment said no supporting employment documents had been provided. The refusal cited a failure to submit evidence that the EU citizen was exercising Treaty rights.
The court also held that the challenge to the June refusal was out of time: the six-month limit had expired before proceedings began on 11 February 2010, and no sufficient explanation for extending time had been offered. It additionally found no arguable case that the refusal itself was legally defective on the material before the Minister.
The applicants said the second applicant resumed part-time work as a kitchen assistant in August 2009, and payslips and a tax clearance certificate were sent to the immigration service on 29 September. The court treated this as new information submitted in support of the review. Because that review remained pending, and material had still been submitted in September, it found no basis to treat the delay as an unlawful refusal.
Leave was refused primarily because the application lacked direct evidence from the EU citizen about her residence and exercise of EU rights. The court did not decide the arguments about whether she was a “worker” under the directive; it said those arguments were hypothetical in the circumstances. The judgment therefore refused permission to bring the proposed judicial review and made no ruling on the eventual review decision.