The applicant, a Nigerian national married to a Czech national, arrived in the State with his wife in 2005, and was granted residence for an initial period of one year in 2005. In 2007 he was issued with a residence card valid until 2007. In December 2010 he applied for permanent residence on the basis of having resided in the State in conformity with the European Communities (Free Movement of Persons) (No. 2) Regulations 2006, which give effect to Directive 2004/38/EC (the Free Movement Directive), for a period in excess of five continuous years. Compliance with the exercise of Treaty rights by the applicant’s spouse was based on her having been in employment.
The application for permanent residence was refused in June 2011, the reason given being that the Minister had ascertained that the EU citizen had left employment in 2007 such that the evidence did not satisfy the Minister that she had resided in the State while engaged in employment etc in conformity with the Regulations. The applicant sought a review of this decision, providing further evidence of his wife’s employment in the State as well as evidence that she was a director of the applicant’s company in the State. The refusal of the application for permanent residence was reaffirmed in December 2011. The review decision stated, inter alia, that the applicant had not provided evidence that he resided legally in the State for five years in conformity with the regulations, and that as his spouse left the State in May 2011, he could therefore not claim to be a family member residing with his EU citizen spouse having remained permanently in the State.
The Court said that the central issue was whether, when the initial application was made in December 2010, the Minister was entitled to consider on the basis of the information before him then or with the review application, that the applicant and his spouse had not been in the State in conformity with the Regulations for a continuous period of five years since their arrival in May 2005. The Court said that if it was accepted that the spouse left only in May 2011, then the only issue is whether her residence was in conformity with the Regulations, and that that in turn depended on the adequacy of the evidence given to the Minister.
The Court said that it was to be noted that when a five year permission is granted on the basis of, say, the direct employment at that time of the EU citizen, an application for permanent residence need not necessarily be based on the same condition being fulfilled five years later, and that so long as one of more of the conditions of Regulation 6(2)(a) of the Regulations is shown to have been complied with throughout the five years, the entitlement to permanent residence is satisfied. The Court said that the acknowledgement of entitlement to reside longer than three months does not create any kind of estoppel or curtail the Minister’s entitlement and duty to assess whether the conditions governing entitlement to permanent residence are satisfied five years later.
The Court granted leave on the grounds that the Minister erred in failing to have regard to the fact that the applicant and his EU citizen spouse had established an entitlement to permanent residence on the basis of five years’ continuous residence in the State in conformity with the Regulations, and had erred in relying on the information that the applicant’s wife had left the State in 2011, and had misdirected himself in the assessment of the evidence in deciding that the applicant’s EU citizen spouse had not been shown to comply with one or more of the conditions under Regulation 6(2)(a) of the 2006 Regulations.
The Court directed that no costs be recoverable by the applicants for the ex parte application because counsel had declined the Court’s invitation to recast and resubmit the statement of grounds, obliging the Court to give a written judgment and to redraft the statement of grounds.