Lamasz and Gurbuz v Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:[2011] IEHC 50
Nature of Proceedings:Judicial Review
Judgment Date/s:16 Feb 2011
Judge:Cooke J.
Category:EU Treaty Rights
Keywords:EU Treaty Rights, Non-EU National, Residence Document, Union Citizen
Country of Origin:Poland and Turkey
URL:https://www.courts.ie/acc/alfresco/31a5ff6d-c853-4f64-aad9-3fc760663baf/2011_IEHC_50_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Ms Lamasz was a Polish national working in Ireland in a Turkish restaurant. Mr Gurbuz was a Turkish national. The Applicants met in Limerick in 2006 and became engaged in 2008. They were married in Clonmel in 2009.

In April 2009 Mr Gurbuz made an application for a Residence Card pursuant to Regulation 7 of the European Communities (Free Movement of Persons) No. 2 Regulations 2006 on the basis that he was a family member of a Union citizen, Ms Lamasz, who satisfied the condition prescribed in Regulation 6(2)(a)(i) – namely, that of being in employment in the State. In support of his application he submitted the documents identified in the checklist checklist prescribed in Schedule 2 to the Regulations, including a passport, marriage certificate and evidence of residence. Additional material was also furnished, including a tenancy agreement, various bills and bank statements. As evidence of the employment of Ms Lamasz, he included a P60 form for 2007, a P45 from her former employer, some current payslips and a letter from her current employer. He also included a certificate of registration of the tenancy with the PRTB and a PAYE balancing statement (P21) for 2008. In September 2009, the Respondent issued a decision refusing his application, giving as the reason that it had not been possible to verify that the EU citizen was exercising her treaty rights in the State. The Applicants sought a review in accordance with Regulation 21 and in January 2010, while the review was under way, the Applicants discovered by means of a Freedom of Information request that a document on Mr Gunduz’s fule recorded that officials of the Respondent’s department had made unspecified but unsuccessful attempts to contact Ms Lamasz’s employers.

In February the Applicants obtained the leave of the High Court to challenge by way of judicial review the Respondent’s decision to refuse Mr Gunduz a Residence Card. They also sought an order directing the Respondent to issue such a card. The Applicants argued that the Regulations did not permit the Respondent to conduct systematic checks on applications.

On the substantive hearing of the application, the High Court (Cooke J.) held that a host Member State was entitled to verify the authenticity of an application and its grounding documentation. The Court observed that while a Member State may not subject the exercise by a Union citizen of the right to enter and reside to additional pre-conditions or administrative formalities, a Member State was entitled to verify fulfilment of the basic conditions and the authenticity of the documentation prescribed for the issue to a non-national family member of a Residence Card. However, the Court found that the fact that the Respondent was ‘unable to verify’ that Ms Lamasz was in employment was an inadequate ground upon which to refuse an application which was otherwise accepted as validly made under the Regulations. Where it is not questioned that a couple is married; nor that one of them is an EU citizen and that they both have the necessary three months period of established residence, the onus passes to the Respondent to state clearly which conditions of the application remain unsatisfied. In the present case, where evidence of employment had been submitted, it was not a valid ground for rejection that officials had merely been ‘unable to make contact’ with the employers in question. The Court stated that the application ought not to have been refused and that the Applicants ought not to be put to the delay of an administrative review. The High Court accordingly quashed the decision of the Respondent refusing to grant Mr Gunduz a Residence Card.

Principles:In an application for a Residence Card where evidence of employment had been submitted, it was not a valid ground for rejection that officials had merely been ‘unable to make contact’ with the employers in question
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