The applicant was a Romanian national who sought asylum in Ireland on the 26 March 2001, as did his girlfriend, who was also Romanian, and gave birth to a child in Ireland, who was a citizen by operation of law. They subsequently withdrew their applications for asylum and applied to the Minister for Justice for permission to remain on the basis of their parentage of their Irish-born child. The application was granted on the 24 April 2002, it being stated that the Minister had granted it for an initial twelve month period. The applicant has been convicted of a number of criminal offences. He was convicted of assault causing harm on the 28 November, 2011. He was sentenced to a period of imprisonment of three years and six months. He was given early release from prison on the 28 June 2014. When he was in prison, the Minister notified him of a proposal to make a removal order against him under the EC (Free Movement of Persons)(No. 2) Regulations 2006.
Following receipt of submissions by and on behalf the applicant, the removal order was made, dated 3 July 2013. He then applied for a review of the decision and made representations, contending that he had resided in Ireland for 10 or more years and was therefore entitled to permanent residence and could only be removed on the basis of imperative grounds of public security pursuant to Article 28(3) of the Citizens’ Directive 2004/38/EC. The removal order was affirmed.
In the analysis underpinning it, it was observed that he did not receive permission to reside in the State until 24 April 2002 when the Department approved his application for residence based on the birth of his child. It noted the duration of the term of imprisonment served by him and that, under EU law, such periods were excluded when calculating residence. It considered that, at the time the removal order was signed, his period of “legal residence” fell short of the 10 year period which would require imperative grounds of public policy to justify his removal. The applicant challenged this by way of judicial review.
The High Court quashed the affirmation of the removal order.
It began by upholding what it termed the implied rejection by the Minister of the applicant’s claim that he was entitled to reside in the State (and had accumulated 10 years’ residence in it) on the basis of a retrospective application of the decision of the Court of Justice of the European Union (CJEU) in Zambrano.
It then turned to consider the concept of “residence” in Article 16 of the Directive, which was concerned with eligibility for permanent residence in respect of a person who had “resided legally” on the territory of a host Member State for a continuous period of five years, and Article 28(3), which was concerned with enhanced protection against expulsion in respect of a person who had resided in a host Member State for 10 years.
It noted that to obtain permanent residence, a person had to be exercising rights under Article 7 in a host Member State for a continuous period of five years. It then held that the examination of whether or not a person was entitled to enhanced protection under Article 28(3) of the Directive was related to the exercise of EU Treaty rights set out in Article 7 thereof. When examining whether or not a person claiming 10 years’ residence was entitled to such enhanced protection, it was appropriate for a decision-maker to ask whether or not he had been exercising such rights during the first five year period. Such a question could not be asked of the second five year period because, if permanent residence had been attained, no compliance with Article 7 was required during that period.
In the instant case, the court held that, under EU law, the question the Minster would normally have been required to ask was if the Applicant had lived in Ireland for 10 years prior to the 5 July 2013, being the date on which the removal order was made. Allowing for the period of imprisonment served by the applicant to be discounted, it held that the question had to be modified to ask if he had lived in Ireland for 10 years prior to the 16 November 2011, being the date on which he went to prison. It observed that the Minister had sought to calculate the period by calculating the 10 year period from the date upon which he had granted him leave to remain in the State on account of the birth of his citizen child. It held that that was incorrect. It noted that he had applied for asylum in March 2001 and that, under the provisions of s.9 of the Refugee Act 1996, he was entitled to be in the State until inter alia that application was withdrawn. It noted that he had withdrawn that application but that at no stage had he been informed that his entitlement to remain in the State would lapse at that point. In its view, CJEU caselaw made plain that, when calculating whether a person had resided in a host Member State, the decision-maker had to have regard to all of the circumstances of the person concerned, and that proper weight should have been given to the unusual circumstances of the applicant in the period following the withdrawal of the asylum claim and the ultimate grant of leave to remain.
In the light of all of the above, the court decided to quash the affirmation of the removal order.