The High Court has quashed a decision revoking an Egyptian national’s Irish residence card, finding that the Minister for Justice had not adequately addressed the Department of Social Protection’s apparent position on the man’s separated wife’s right to reside in Ireland.
Mr Justice Max Barrett delivered the judgment on 22 May 2019. The applicant, Hany Hemida, lives and works in Ireland. He is separated from his EU-national wife, identified in the judgment only as Ms C. She lives in Ireland and appears last to have worked there in 2013. She receives welfare payments, including jobseeker’s allowance.
The Minister’s review decision of 5 October 2018 revoked Mr Hemida’s residence card. The stated basis was that Ms C was not exercising EU Treaty rights in a way consistent with the European Communities (Free Movement of Persons) Regulations 2015.
The judgment said that eligibility for jobseeker’s allowance requires a person to be habitually and lawfully resident in Ireland. The Department of Social Protection apparently considered that Ms C had a right to reside under regulation 6(3)(c) of the 2015 Regulations, while the Minister considered that she was not entitled to reside on that basis. The court said the Minister could reach a different conclusion, but had to reason through how Mr Hemida did not have a derivative right of residence when the Department appeared to have concluded that Ms C had a primary right.
Justice Barrett said the Minister had not confronted that issue, making the review decision appear unreasonable, even irrational. He also said Mr Hemida could not reasonably be expected to provide further documentation about his wife’s benefits: he was separated from her, appeared to have little contact with her, and the Department would not disclose her social welfare information to him.
The court distinguished the case from Abouheikal v Minister for Justice and Equality, saying benefits had not been claimed at the time of the review in that earlier case and the Department had been perceived to have acted erroneously. In Mr Hemida’s case, the benefits continued to be claimed, and the court did not determine whether the Department had acted correctly. It said there was no presumption in favour of either the Minister’s reasoning or the Department’s.
The court ordered certiorari, quashing the review decision. The judgment did not determine whether Ms C was in fact entitled to reside under the Regulations.