The Supreme Court ruled that a High Court judge had wrongly prevented an applicant from arguing that his marriage to an EU citizen and more than five years’ residence in Ireland entitled him to permanent residency under EU law.
In an appeal from an order granting leave to seek judicial review, the Court said the High Court judge had been entitled to reformulate the grounds to identify the issues, but had erred by excluding that argument. The appeal concerned a decision dated 6 December 2011 refusing the applicant permanent residency.
The judgment, delivered by Mr Justice MacMenamin on 18 December 2012, records that the Supreme Court had given an ex tempore judgment on 8 November 2012. It permitted the applicant to add two grounds to the three already allowed by the High Court. The amended grounds challenged the Minister’s assessment of the EU spouse’s residence and compliance with conditions for permanent residence, including whether the couple’s claimed entitlement had accrued before 21 December 2010. They also argued that the applicant had not been given sufficient information about the concerns behind the decision to respond to them.
The judgment does not determine whether the applicant was entitled to permanent residency, nor does it quash the refusal. It addresses which grounds the applicant may pursue in the judicial review proceedings and sets out broader observations on how such cases should be pleaded.
Justice MacMenamin said revised court rules required applicants to state each ground precisely and identify the facts supporting it. He criticised the practice of repeating the same point in multiple formulations, saying it could obscure a valid argument. In this case, the statement of grounds sought relief under 19 headings and contained 34 grounds across about three and a half pages.
The judge said unreasonable conduct by either applicants or respondents could be taken into account on costs. Applicants might face a costs consequence if leave was granted on a narrower basis or if grounds were abandoned at the hearing’s start. Respondents and notice parties could also risk a costs penalty if an unreasonable procedural position unnecessarily increased the cost of proceedings.
The judgment gives no final outcome of the judicial review itself.