The Applicant was a Cameroonian citizen and a failed asylum seeker. He married a Polish citizen in Ireland in December 2005. In February 2006 he applied for a residence card as the spouse of a Union citizen exercising EU Treaty rights. His application was made under Regulation 1612/68 but was dealt with under the European Communities (Free Movement of Persons) Regulations 2006, which transposed the Citizenship Directive into Irish law. [These regulations were replaced by the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 which were amended by the European Communities (Free Movement of Persons) Regulations 2008]. The Applicant was initially granted a residence card valid for one year. Following the decision of the European Court of Justice in the Metock case the Minister was requested to withdraw the original decision and to issue a five year residence card in its place. The matter was dealt with as a review of the original decision rather than as a fresh application. The relationship between the Applicant and his wife subsequently broke down and he was unable to obtain current documentation regarding her work status and her maternity leave. In November 2008, the Minister refused the Applicant’s application for a residence card and issued a proposal to deport him. When the Applicant requested that the Minister review his decision, the Minister accepted this request and rescinded his proposal to deport the Applicant. Questions were raised by the Minister on the bone fides of the Applicants marriage, and he attempted to satisfy the Minister in this regard. By June 2009 no decision had been made and the Applicant launched judicial review proceedings seeking, inter alia, an order requiring the Minister to determine the review and a declaration that the Minister failed to determine the review within a reasonable time. Leave for judicial review was obtained and the substantive application was heard by the High Court. The Minister issued a decision refusing the Applicant a residence card after the hearing but before the judgment had been handed down.
In a comprehensive review of the law in the area, the High Court noted that Article 10 of the Citizenship Directive specifies the documents that must be presented to ground a residence card application. However, the Court found that in cases of doubt, the Minister may seek further proof to verify the circumstances that are said to give rise to the right being asserted. There is an onus on applicants to co-operate with the verification process and if the Minister has not been provided with the information that he requires in a timely manner such as to enable him to verify the claim within the required six month period he would be entitled to render a decision refusing the application on the basis that the claim has not been verified. In that event there does not appear to be any impediment in the Directive to an applicant making a fresh application when the required material is to hand, or alternatively requesting a review of the decision based upon the existing evidence. The Court held that there is no fixed time limit in respect of a review but that a decision upon a review must be rendered within a reasonable time. Where the Minister, at the end of the six months, finds himself with a suspicion, unsupported by clear evidence, that the claim may be fraudulent, and which suspicion requires further investigation, he may have no choice but to grant the residence card on the basis that he has the power to immediately revoke it if clear evidence of fraud should subsequently emerge. The Court noted that where a decision is rendered outside of six months, an applicant may be entitled to take an action claiming damages against the State for any prejudice caused to him on account of the unlawful delay, assuming that he or she can prove loss and damage on account of such prejudice. Because a decision had been made, the Applicant was not entitled to a mandatory order, but the High Court made a declaration that the Minister was guilty of failing to render his decision within a reasonable time.
