Saleem and Spryszynska 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 49
Nature of Proceedings:Judicial Review
Judgment Date/s:16 Feb 2011
Judge:Cooke J.
Category:EU Treaty Rights
Keywords:EU Treaty Rights, Freedom of Movement (Right to), Non-EU National, Residence Document, Residence Permit, Union Citizen
Country of Origin:Poland and Pakistan
URL:https://www.courts.ie/acc/alfresco/fa0c6b3c-806d-4cc0-8140-d0c32394ddf0/2011_IEHC_49_1.pdf/pdf#view=fitH
Geographic Focus:Ireland
References:Lamasz and Gunduz v. Minister for Justice, Equality and Law Reform [2011] IEHC 50

Mr Saleem was a national of Pakistan present in Ireland on a student visa. Ms Spryszynska was a Polish national working in Ireland. The Applicants met while both working in a McDonald’s restaurant and married in Naas in December 2008. That same month Mr Saleem 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 Spryszynska, 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.

In June 2009, the Respondent issued a decision refusing Mr Saleem’s application, giving as the reason that he had failed to comply with a request for certain specified documents – including payslips and a P60 – proving that his wife was in employment.  It transpired that Mr Saleem had sent these documents but that they had been lost in the post, only to arrive after the decision on his Residence Card application had been made. In July 2009 Mr Saleem sought a review in accordance with Regulation 21. By November 2009, no decision on the review had been made, and judicial review proceedings were initiated. The Applicants sought to quash the Respondent’s refusal decision and compel him to issue the Residence Card. Leave to seek judicial review was granted by the High Court in January 2010.

On the substantive hearing of the application, the High Court (Cooke J.) held that the Respondent was entitled, without infringing Union law or applying the Regulations inconsistently with the provisions of Directive 2004/38/EC, to carry out reasonable checks in order to satisfy himself that the basic conditions of Regulations 6 and 7 are met in the case of the Union citizen and family member and that documentation submitted by way of proofs under Schedule 2 is authentic, provided that these checks do not involve or amount to the imposition of additional administrative obstacles or preconditions to the exercise of the Union citizen’s right to residence and to be joined or accompanied by a family member. In the present case, the Court held that the application to quash the Ministerial refusal could not succeed because the decision had been lawfully made. The Court observed, however, that the Minister had taken the stance that once the initial refusal had been decided he was under no duty to deal with the review in any particular time. In the view of the Court, this stance was based on a mistaken view of the obligation of the State toward Union citizens and their family members arising under the Directive and that while the Minister may be justified in withholding the issue of a Residence Card when he has genuine reason to question whether the conditions for its issue have been fulfilled, the consequence of the expiry of the 6 month period for the determination of the initial application is not to afford the Minister an indefinite time within which to decide the review where one is requested. When the 6 month period expires without the definitive decision being taken and the Minister maintains that there is no duty to make the required decision within any particular time, the Court observed that the Applicants are entitled to treat delay as unreasonable and as justifying an application for a mandatory order. In the present case, the delay on the part of the Respondent could not be excused as reasonable, especially when all that was required was a decision as to whether the documents actually received in June 2009 were sufficient. Accordingly, the High Court made an order directing the Respondent to take a decision on the review request within 28 days of the perfection of the Court’s order.

Principles:The Minister is entitled, without infringing Union law or applying the Regulations inconsistently with the provisions of Directive 2004/38/EC, to carry out reasonable checks in order to satisfy himself that the basic conditions of Regulations 6 and 7 are met in the case of the Union citizen and family member and that documentation submitted by way of proofs under Schedule 2 is authentic, provided that these checks do not involve or amount to the imposition of additional administrative obstacles or preconditions to the exercise of the Union citizen’s right to residence and to be joined or accompanied by a family member.
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