Facts
The applicants were both born in Pakistan and were first cousins. The first applicant became a naturalised British citizen and subsequently moved to the State in exercise of his EU Treaty Rights. He applied for permission for his first cousin to join him in the State as a permitted family member on the basis that he was a member of his household. The Minister refused the application and the High Court dismissed the applicants’ challenge to that decision. The applicants appealed.
Reasoning
The Court of Appeal upheld the decision of the High Court that a person who cohabits or lives under the same roof as a Union citizen is not, merely by reason of that cohabitation, to be considered a member of the Union citizen’s household. Baker J rejected the appellants’ contention that the High Court judge had impermissibly posited a requirement that there be identified a “head of the household”, and noted that the High Court judge had expressly stated that what has to be identified is the household of the Union citizen and thereafter whether the applicant for permission to enter and remain is a member of that household. The centrality of the Union citizen is what is in issue, not whether the Union citizen heads that group or governs the living arrangements within the dwelling. Baker J held that the key task of the decision maker was to ascertain whether the cohabitation or co-living arrangements are more than merely convenient, and whether the non-Union citizen family member is part of a cohesive, long term, coherent and single unit which might generally be called a ‘household’. With that in mind, the living arrangements are not to be viewed with a bird’s eye view of a single moment in time but must rather have some regard to the durability of the co-habitation, and also of what future intentions can be objectively presumed regarding the continued existence of the household. The court noted that it may be more useful to consider the notion of household by reference to what it is not: persons living under the same roof are not necessarily members of the same household and they may well be what we colloquially call housemates. An element of sharing that is necessary in a household may well be met in that the persons living together may agree on a distribution of household tasks and a proportionate contribution towards household expenses. But because, for the purpose of the Citizens’ Directive, one must focus on the living arrangements of the Union citizen, the members of the household of the Union citizen must, on the facts, be persons who are in some way central to his or her family life, that those family members are an integral part of the core family life of the Union citizen, and are envisaged to continue to be such for the foreseeable or reasonably foreseeable future. The defining characteristic is that the members of the group intend co-living arrangement to continue indefinitely, that the link has become the norm and is envisaged as ongoing and is part of the fabric of the personal life of each of them. Baker J noted that some argument was had in oral submissions regarding the decision of Barrett J in Shishu v Minister for Justice and Equality [2019] IEHC 566, where he set out a number of informal translations of the German, Greek, and Spanish text of article 3(2)(1) of the Citizens’ Directive. For example, Barrett J noted that the Spanish phrase “vive con el”, which Barrett J translated informally into English as “lives with the Union citizen”, seemed to connote no more than living under the same roof. Barrett J considered that, in principle at least, the German, Spanish, and Greek versions posited a test of living under the same roof or cohabitating, and that no element of identifying the “head of the household” was required. However, Baker J held that the Court of Appeal was unable to resolve this issue in the light of the bare informal translation carried out by Barrett J and in the absence of further evidence such as expert evidence as to possible varying translations of the Directive or how the term has been interpreted in other Member States.
Decision: Appeal dismissed.
