The High Court ruled that eligible non-EU spouses of EU citizens could exercise residence and employment rights from the date the Minister acknowledged receipt of a valid application for a residence card, without waiting for the card itself.
Mr Justice Cooke delivered the judgment on 30 July 2010 in two judicial review cases heard together. The applicants challenged letters advising that they could seek a temporary Stamp 3 permission while their applications were pending. That permission would allow them to remain in Ireland but would not allow them to work.
The cases concerned Chinese national Huan Zhao, married to Hungarian citizen Peter Decsi, and Pakistani national Moinuddin Syed, married to Latvian citizen Inga Levalda. Both non-EU spouses held student permissions that allowed limited employment. Zhao had been offered a full-time post, while Syed was concerned about continuing his part-time work if his student permission ended before his residence-card application was decided.
The court found that the letters presented Stamp 3 as an option and did not require the applicants to give up existing permissions. It therefore refused their requests to quash the letters. However, the judge addressed what would happen if an existing permission expired before the residence-card decision: the judgment said Stamp 3 would then be the available permission, with no employment entitlement.
The court held that employment rights under the European Communities (Free Movement of Persons) Regulations were not postponed until a residence card was issued. The card evidenced a right; it did not create that right. The judge also concluded that the employment entitlement operated alongside the relevant residence right, and that the Regulations did not make applying for or receiving a card a precondition.
Instead of quashing the letters, the court granted a declaration in each case. It said the second named applicant’s residence and employment rights were exercisable from receipt of the acknowledgment notice for a valid residence-card application. The declaration added that those rights remained liable to retroactive revocation if the Minister lawfully refused the residence card within the prescribed six-month period. The court refused the other reliefs sought.