The Supreme Court recently delivered Judgment in the case of Muhammad Pervaiz v The Minister for Justice and Equality, Ireland and the Attorney General.

This case concerns the interpretation and application of relationship and cohabitation requirements for permitted family member applications for residence cards pursuant to the Citizens Directive (Council Directive 2004 38 EC, often referred to colloquially as the Free Movement of Persons Directive) which was transposed into Irish law by the European Communities (Free Movement of Persons) Regulations 2015 (S.I. 548/2015).  

The applicant in the case is a non-EEA national who applied to be granted a residence card to reside in Ireland as the de facto partner of an EU citizen who was exercising her EU Treaty Rights in the State.  The application for a residence card was refused by the Department of Justice and Equality on the basis that the applicant had failed to prove that he was in a durable relationship with his EU citizen partner. 

The refusal was appealed to the High Court and in a judgment handed down by Mr Justice Barrett on the 6 June 2019, the High Court held that the State had failed to adequately transpose the Citizens Directive into Irish Law due to the lack of clarity in the language used in the 2015 Regulations in addition to the fact that no legislative or non-legislative guidance had been provided to applicants in order to understand fully the concept of “durable relationship duly attested” as referred to in the Directive and 2015 Regulations.  The High Court criticised the State for failing to implement clear provisions in this regard.

The Supreme Court overturned the High court decision and found that the 2015 Free Movement of Persons Regulations permit a plain reading, do not lack clarity or sufficient precision and that the Citizens Directive had thus been properly incorporated into Irish law.

It held that the term partner in the 2015 Regulations: 

denotes a person with whom the Union Citizen has a connection which is personal in nature, and which is akin to, or broadly akin to, marriage.  It is not a person with whom the Union Citizen has a close friendship.  

What is meant, it seems to me, is that the relationship could be one which has continued for some time and to which the parties are committed, with the intent that the commitment continues, one, therefore, which carries the indicia of commitment such that, at the present time, each of the parties to the partnership would express a view and a hope that the relationship would continue for the foreseeable future.

The length of a relationship will be in an important and sometimes compelling index of the degree of commitment between the couple, but it is perfectly possible for a commitment long term, what is called a serious relationship, to exist between persons who have known one another for a short time.  Duration, therefore, is an important factor but not always an essential one.  Durability denotes relationship which carries indicia of permanence and commitment such that the couple live a life where each of them is connected to the other by a number of identifiable threads, such as their social life and social network, the financial interconnectedness or interdependence, their living arrangements, and the extent to which they are recognised and acknowledged by their family circle and their friends as a couple.”

The Court found that “cohabitation is in most cases a useful yardstick by which the durability of a relationship is assessed and by which it is possible to test whether persons are genuinely in a committed partnership.”

It  noted that there may be difficulty in establishing that a couple have cohabited or that a couple may cohabit but one of them may for reasons of work find himself or herself living intermittently in another part of the country or even outside of the State altogether.  The Court found that at the minimum, it would have to be established that they intend cohabiting, and this would be a fundamental argument of their relationship and an index of their commitment.  

The Court rejected the argument that no guidance had been published by the Minister for Justice to assist an applicant and noted that the application form and explanatory leaflet, which are available on the INIS website, contain detailed instructions with respect to the type of documentation required to be submitted in support of the residence card application. 

In relation to the two-year cohabitation requirement the Supreme Court found that the Minister for Justice did not enforce an unlawful requirement of two years cohabitation prior to the application.  The Court accepted the explanation of the Minister for Justice that evidence of cohabitation for the last two years is not a requirement applied in a strict fashion but is flexible and can be moved downwards depending on the rest of the evidence furnished by an applicant.  The Court found that in order to enforce a two-year cohabitation requirement that legislative provisions would be required.  

The Court concluded that the “ Trial Judge was in my view, incorrect in his conclusion that the Citizens Directive had not been properly incorporated into Irish Law, that the test applied by the Minister was vague and uncertain, and that the decision maker did not fetter her discretion. “ 

In practice at Sinnott Solicitors we find that the issue of cohabitation for a two-year period can be a significant stumbling block for non-EEA nationals who wish to apply for a residence card to reside in Ireland with their EU citizen partner.  

The decision has provided welcomed clarity and confirmation that the Minister for Justice does not apply a strict two year cohabitation period when assessing a residence card application, and that the decision maker examines the entire circumstances of an applicant’s relationship based on the information and documentation submitted in support of each application. Each application is assessed on its own merits based on its particular circumstances and supporting evidence submitted.

In any application for a residence card as the de facto partner of an EU national, it is extremely important that applicants submit as much documentation to prove the relationship as possible and note that whilst cohabitation is an important factor taken into consideration in the analysis of their case, it is not the only aspect which is considered.  

 

The immigration team at Sinnott Solicitors are experts on all Irish immigration matters. If you would like to discuss your application for a residence card or any other immigration matter, do not hesitate to contact our office on 01 406 2862 or info@sinnott.ie.