The High Court has refused a judicial review brought by a married couple challenging the refusal of an application for the husband to join his wife in Ireland under EU free movement rules.
Mr Justice Max Barrett ruled that the Minister for Justice and Equality was entitled, on the evidence available when the decision was made, to find that the application involved an abuse of rights. The court said judicial review was not a full appeal and found no legal deficiency in the decision or the process leading to it. It refused an order of certiorari and all other relief sought.
The judgment, delivered on 3 April 2019, said the wife was a UK national and the husband a Pakistani national. She said she had lived in Drogheda from January to June 2016 and had undertaken work experience at a restaurant in Skerries, which later offered her employment. The court noted there was no independent evidence corroborating her claimed residence, that her passport showed entry to Pakistan in April 2016, and that no written employment contract had been produced. She had not taken up the offered work.
The Minister’s decision of 12 February 2018 cited references in the application materials to living together permanently in the UK, the lack of independent evidence of the wife’s Irish residence, and the employment offer’s discrepancy about when she was in Ireland. The judgment also recorded that the marriage’s validity had been accepted as resolved, and that there was no suggestion the marriage was one of convenience.
The court set out the EU law distinction between abuse of rights and fraud. It said abuse may arise where a person formally observes legal conditions but does not meet the law’s purpose, and described a test involving both whether the rules’ purpose was achieved and whether conditions were artificially created to obtain an advantage. Applying judicial review principles, the judge concluded it was open to the Minister to find that test met on the evidence before him.
Because of that conclusion, the court said it did not need to decide several arguments, including whether the wife had to be exercising EU rights in Ireland before her husband could enter with her. In comments expressly described as obiter, it said an EU national need not previously have worked in Ireland to exercise free movement rights. It nevertheless held that this did not assist the applicants in light of the abuse finding. The court rejected the remaining challenges and refused all relief.