The High Court has ruled that a proposed deportation order against Muhammad Nadeem was unlawful because he had previously been recognised as a permitted family member under EU free movement rules.
Mr Justice Max Barrett said on 9 December 2019 that Nadeem came within the scope of the European Court of Justice’s ruling in Chenchooliah. That ruling requires safeguards for certain people who lose a right of residence and says an expulsion decision in that situation cannot impose an entry ban.
The judgment concerned the part of Nadeem’s judicial review application addressing whether the Minister for Justice should have used the removal process under the European Communities (Free Movement of Persons) Regulations 2015 rather than the deportation process under the Immigration Act 1999. The court had previously deferred that issue while awaiting the Chenchooliah decision. It heard further submissions on 22 November 2019.
The court examined an INIS letter dated 25 August 2016. It said Nadeem’s application to be treated as a permitted family member had been approved because he was a partner in a durable relationship with a Union citizen. The letter said the Minister would then consider his application for a residence card. Justice Barrett said the approval was a definite recognition of permitted family member status, although Nadeem later lost that status.
An INIS letter, described in the judgment as dated 4 August 2018 but issued on 4 May 2018, notified Nadeem that a deportation order was proposed. It said such an order would require him to leave Ireland and remain outside the State. The court concluded that this form of deportation order was unlawful in light of Chenchooliah.
The judge stressed the limits of the decision. It did not mean that anyone who applies for residence rights based on a relationship automatically gains protection from deportation, regardless of whether the claim is genuine. The court accepted Nadeem’s narrower argument: he had actually been granted permitted family member status from the outset, though he later lost it.
The court did not set out a final order in this judgment. It said it would discuss the form of the order with the parties.