A High Court judge has upheld the Minister for Justice's refusal to allow a married Pakistani couple live here on grounds their application involved an abuse of the wife's free movement rights as an EU citizen.
The Minister had concluded in February 2018 the purpose of the couple’s move to Ireland was to “artificially create” conditions that would allow the husband gain a derived right of residence in the UK.
Mr Justice Max Barrett noted an immigration service officer had said information sworn by the woman was “consistent with a pattern recognised by the Department of Justice whereby addresses are artificially used to give the appearance of genuine residency where none in fact exists”.
In this case, the woman claimed to have lived in Drogheda, Co Louth, between January and July 2016 but there was no corroborative evidence of that claim and her passport stamps showed she had entered Pakistan in April 2016, the judge said.
While a since closed restaurant here had confirmed it had offered work to the woman, that offer, which she had not taken up, represented she was here in June 2017 when she herself claimed she was here only for the first half of 2016.
He further noted, while the woman claimed she and her husband want to live in Ireland, the material in her application to the Minister referred, inter alia, to an intention “to live together permanently in the UK”.
That material also showed the woman was “remarkably unaware” of who else she was allegedly living with in a house in Drogheda or how many bedrooms were in the house.
While the woman said the references to living in the UK and the number of bedrooms were incorrect “inadvertent slips”, the Minister considered those were slips revealing “the real truth”, that the application for the couple to live in Ireland involved an abuse of rights, the judge said.
Derivative rights
He was giving his reserved judgment on judicial review proceedings by the couple challenging the Minister’s refusal. The husband applied to come to Ireland on the basis, because he is married to an EU citizen, he enjoyed a derivative right to come here under the EU Citizens Rights Directive. It was claimed his wife had a standing arrangement with the Irish restaurant to work here and wanted to live here with her husband and work under that standing arrangement.
The Minister said there were a number of deficiencies in the application, including indications the couple intend to live in the UK, absence of evidence of the woman having lived here and evidence suggesting she is living rent-free in the UK and working there.
He concluded she was not seeking to exercise her free movement rights in a “genuine” manner in accordance with the Directive. The couple appealed on grounds including the Minister had not properly construed the regulations governing free movement and the Citizens Rights Directive.
Mr Justice Barrett noted that abuse of rights and fraud are different. Abuse of rights involves behaviour where a person aims to benefit from free movement by formally respecting applicable law but not complying with the purposes of the law, he said.
Fraud involved using fraudulent documents or representations to acquire a legal right. For the court to overturn the Minister’s decision, there must be some legal error, unreasonableness or breach of rights but he saw no legal deficiency in the Minister’s refusal decision or the process that lead to that, he said.
The Minister was entitled at law to reach the conclusion he had on the evidence before him that neither the man nor woman should be afforded the claimed advantage under EU law, he held. Given the abuse of rights, there was no basis on which the court could quash the Minister’s decision, he ruled.
