Muhammad Uzair Pervaiz v Minister for Justice and Equality

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Muhammad Uzair Pervaiz v Minister for Justice and Equality
Respondent/Defendant:Minister for Justice and Equality
Court/s:Supreme Court
Citation/s:[2020] IESC 27
Nature of Proceedings:Appeal/Judicial Review
Judgment Date/s:02 Jun 2020
Judge:Baker M
Category:Immigration law
Keywords:Family Member, Free Movement, Third-Country National
Country of Origin:Spain and non-EU (not specified)
URL:https://www.courts.ie/acc/alfresco/27a54a3d-420a-4c3f-a9a4-a87369f81de5/2020_IESC_27(Unapproved).pdf/pdf#view=fitH

Facts

This appeal was primarily concerned with how the Minister was to approach an application by a third country national to be treated as a permitted family member by reason of being in a durable relationship with a Union citizen. Mr Pervaiz claimed to be in a committed relationship with a Spanish national who was exercising her EU Treaty Rights in the State. His application for a residence card as a “permitted family member” under the Citizens Directive was refused because the Minister was not satisfied he was in a durable relationship with the EU citizen. The High Court ([2019] IEHC 403) upheld his challenge to the Minister’s decision on the basis that the Minister had wrongly transposed the Citizens Directive into Irish law by reason of the absence of specific and detailed criteria as to what constitutes a durable relationship. The Minister appealed to the Supreme Court.

Reasoning

The Supreme Court allowed the Minister’s appeal and rejected the contention that the Citizens Directive had been wrongly transposed into Irish law. It was held that the word “partner” 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. In order to be durable, the relationship must be one which has continued for some time and to which the parties are committed, with an intent that the commitment continues for the foreseeable future. While the length of the relationship may be relevant in assessing the degree of commitment, the duration of the relationship was not its defining feature for the purposes of the Directive. The Supreme Court held that the terms “partner” and “durable relationship” were capable of being understood in a non-technical, literal way, and it was therefore not necessary for the transposing Regulations to provide detailed criteria to identify the factors to be taken into account in assessing an individual application. The requirement that the relationship be “duly attested” meant that the applicant must provide evidence, in whatever form is relevant and suitable in the light of his or her circumstances, and that the Minister was to engage with that evidence not by the application of a general policy, but by reference to the individual facts and indicia of the relationship put forward by the applicant and established by evidence. The Supreme Court held that the evidence need not always be in documentary form, but can be a narrative explaining the context of the relationship, how it arose, how long it has endured, where the couple have lived, what elements of their life have been and are still interconnected, and any personal factors which they may wish to show to establish their commitment to one another.

Decision: Appeal allowed.

Principles:The Citizens Directive was correctly transposed into Irish law in relation to the determination of applications by “permitted family members” of EU citizens. There was no requirement to provide detailed criteria in the legislation as to what constitutes a durable relationship duly attested.
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