The High Court refused an applicant leave to bring judicial review proceedings challenging the refusal of his application to retain EU Treaty Rights. The court did not decide the underlying judicial review; it found the proposed grounds were not arguable on the material presented.
The applicant, a national of India, sought to quash a 6 March 2017 decision by the Minister for Justice, Equality and Law Reform. He also sought an order requiring the Minister to consider a fresh application, following an invitation in a decision dated 29 October 2016.
The judgment records that the applicant arrived in Ireland in February 2009, married an EU citizen in February 2010 and was granted EU Treaty Rights in either March or September 2010. The court noted that the source materials gave different months. A child was born in August 2010. The couple separated in December 2013, when the wife and child moved to the United Kingdom.
The applicant applied to retain his rights in May 2014. Those rights were revoked in July 2015. A later application relied on the wife’s alleged return to Ireland and her exercise of EU Treaty Rights when judicial separation proceedings began. The Minister’s March 2017 decision said the applicant did not then have a valid and subsisting right of residence to retain.
The applicant argued that Regulation 10 of the European Communities (Free Movement of Persons) Regulations 2015 treated judicial separation as dissolution of a marriage. He also argued that the European Court of Justice’s decision in Singh did not apply because his wife was in Ireland when the separation proceedings began.
Justice O’Regan rejected the argument that “dissolution” in the regulation could arguably include judicial separation. She noted that the two forms of relief have distinct effects, and that spouses remain spouses after a judicial separation decree.
The court also found the evidence too unclear to support an arguable distinction from Singh. The affidavit and statement of grounds gave differing accounts of when the separation proceedings began, when the wife returned to Ireland and when she left. The proceedings and evidence of her return and departure had not been exhibited. The judgment also identified an unexplained reference in the statement of grounds about whether to disclose how long the wife had worked in Ireland.
The court refused leave. It made no order quashing the Minister’s decision and did not direct the Minister to reconsider the application.