On 27th May 2019, The Supreme court overturned the High Court and Court of Appeal and found that a person who applied for a residence card but already had a Deportation Order should not have been arrested and detained on foot of the Deportation Order after he had made an application for a Residence Card
Immigration – Lawful custody – Deportation – Residence card – Whether the applicant was in lawful custody
Facts: The applicant, on 30 January 2018, sought a residence card, claiming to be a qualifying family member dependent on the alleged spouse of his father, she being a European Union citizen. That application was made pursuant to Art. 7(1) of the European Union (Free Movement of Persons) Regulations 2015 (SI 548 of 2015). On 20 June 2018, the applicant was arrested in Portlaoise for the purposes of deportation, having already been served with a deportation notice on 9 January 2018. An application for habeas corpus was then made on his behalf. In the High Court, Humphreys J in a judgment dated 17 July 2018 held that the applicant was in lawful custody. This was appealed to the Court of Appeal. In a judgment dated 4 December 2018, Kennedy J again held that the applicant was in lawful custody. Both the High Court and the Court of Appeal held that there should be read into the Regulations a requirement that in order to render a stay in Ireland lawful under Art. 7(6), a person applying for a residence card must first establish that he or she is an actual qualifying family member. By determination dated 15 January 2019 the Supreme Court gave the applicant leave to appeal the decision of the Court of Appeal.
Held by Charleton J that what was involved on this appeal was an issue of the interpretation of domestic legislation. Charleton J held that the issue could be resolved by posing the following question: did the Regulations grant the right to stay pending the resolution of an application? Charleton J held that the answer was clearly that the Regulations, in the replication of rights, did what was required by Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States, but also granted that right. Charleton J held that the applicant’s arrest was unlawful and at the date of the application under Article 40 of the Constitution he was not detained in accordance with law. Charleton J held that the order of the Court would reflect that. Appeal allowed.
27/5/2019 No. 182/2018  IESC 37