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Cite as: [2019] IECA 328

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THE COURT OF APPEAL

Neutral Citation Number: [2019] IECA 328

Appeal No.: 2019/25

Baker J.

Whelan J.

McGovern J.

BETWEEN/

A. R. AND N. K.

APPLICANTS/

APPELLANTS

- AND -

THE MINISTER FOR JUSTICE AND EQUALITY,

IRELAND, AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Ms Justice Baker delivered on the 19th day of December, 2019

1. This judgment raises an issue regarding the transposition into Irish law of Directive

2004/38/EC On the Right of Citizens of the Union and Their Family Members to Move and

Reside Freely Within the Territory of the Member States, O.J. L158/77 30.4.2004 (“the

Citizens Directive”) by the European Communities (Free Movement of Persons)

Regulations 2015 (S.I. No. 548/2015) (“the 2015 Regulations”).

2. The appeal is from an order of Humphreys J. made on 11 December 2018, following

delivery of a written judgement, A. R. (Pakistan) v. The Minister for Justice, Equality and

Law Reform [2018] IEHC 785, refusing to make an order of certiorari of the decision of

the Minister for Justice and Equality (“the Minister”) refusing the first appellant liberty to

enter and remain in the State as a permitted family member of the second appellant.

3. This appeal was heard with the case of Safdar v. Minister for Justice, appeal record

number 2019/28, in which judgment is also given today. The two judgments are to be

read together, as the decision in Safdar v. Minister for Justice contains a more complete

analysis of the transposition argument than the present judgment.

Background facts

4. The first appellant is a Pakistani national and the second appellant a Union citizen from

Hungary, and they claim to be parties to a “durable relationship” and that the first

appellant is therefore entitled to be treated as “permitted family member” within the

meaning of the Citizens Directive and the 2015 Regulations.

5. The appellants met in the United Kingdom in June 2014, and in 2015 they moved to the

State, the first appellant in August 2015 and the second appellant in September 2015.

They have lived in the State together under the same roof since then. They entered a

non-binding and not legally recognised Islamic ceremony of marriage in July 2016.

6. On 2 January 2017, they became engaged to be married and an application was made to

the Civil Registration Service for permission to marry in the State. By decision of 6 March

2018, the Civil Registration Service refused them permission to marry on the stated

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grounds that the proposed marriage was a marriage of convenience and that therefore an

impediment existed sufficient to constitute an impediment to the proposed marriage.

7. That decision of the Civil Registration Service was appealed to the Circuit Court pursuant

to the provisions of s. 58(9)(a) of the Civil Registration Act 2004, as amended by the Civil

Registration (Amendment) Act 2014, and that appeal has yet to be determined in the

Circuit Court. The Circuit Court case remains at a preliminary stage and a motion seeking

an extension of time to bring the application has yet to be resolved. It was unclear at the

date of the hearing of the present appeal when the substantive hearing might take place,

or indeed even when the preliminary jurisdiction point was listed for hearing.

The Citizens Directive

8. The Citizens Directive states in its preamble that it is directed towards the rights of

citizens of the Union to move and reside freely within the territory of the Member States.

It recites the recognition of the primary and individual right of citizens of the Union to

move and reside freely within the territory of the Member States, subject only to

limitations and conditions laid down in the Treaty and to any measures adopted to give it

effect.

9. The free movement of persons is recited as being one of the fundamental freedoms of the

internal market, and the stated purpose of the Citizens Directive was to codify and review

then existing law that supported the right of free movement by extending it to family

members of Union citizens irrespective of nationality.

10. Recital 8 makes reference to the facilitation of the free movement of family members and

recital 6 to the desire of maintaining “the unity of the family in a broader sense” and

envisages the extension of the right of movement to those persons who are not included

in the definition of “family members” under the Citizens Directive and who do not

therefore enjoy an automatic right of entry into or residence in the host Member States.

It recognises that those persons should be entitled to apply for the right of entry and

residence and that the host Member State should take into consideration their relationship

with the Union citizen or other circumstances such as their financial or physical

dependence on the Union citizen in the consideration of such application.

11. The present case engages the provisions of article 5 of the Citizens Directive, which

provides for the grant to a Union citizen of a right to enter and remain in the host Member

State and extends that right to family members who satisfy the requirements of article

7(1)(a), (b) or (c) of the Citizens Directive, all of which relate to requirements that the

relevant person be a worker, or have sufficient resources, or be engaged in a course of

study or vocational training as the case may be.

12. The Citizens Directive is not directly effective, see the decision of the Court of Justice in

Secretary of State for the Home Department v. Rahman (Case C-83/11)

ECLI:EU:C:2012:519, and was transposed into Irish law by the European Communities

(Free Movement of Persons) No. 2 Regulations 2006 (S.I. No. 656/2006), as amended

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(“the 2006 Regulations”), now revoked and repealed by the 2015 Regulations, those

relevant to the present application.

13. By application dated 1 May 2017 made in the statutory form EU1A the first appellant

applied for a residence card as a permitted family member of a Union citizen. The

application was signed by him and the second appellant on the same day.

14. By letter of 24 July 2017 the application was refused. The Minister expressed himself not

satisfied that the documentation established that the first appellant was in a “durable

relationship” with the Union citizen and expressly said that the documentary evidence of

co-habitation was insufficient. Regard was had to the fact that the tenancy agreement of

31 July 2015 was in the name of the second appellant only, although the tenancy

agreement made one year later was in joint names and correspondence from the

Residential Tenancies Board identifying a joint tenancy is dated October 2016. It is also

noted that utility bills are in the name of the Union citizen. Rubbish collection bills are in

joint names.

15. It is also noted that the first appellant made an application for asylum on 27 August 2015

which, from the evidence, appears to have been immediately upon his arrival in the State.

What was regarded as important by the Minister was that the application, which did name

a number of family members including his parents and siblings, made no reference to his

“de facto partner”.

16. With regard to the certificate of the Islamic marriage, the Minister noted that the receipt

furnished for a wedding dress is dated some nine months after the date of that ceremony.

17. Further note was taken of the fact that no evidence was shown of a joint bank account or

shared assets and that this suggested that no durable relationship existed.

18. The Minister suggested that other factors such as joint travel or having started a family

might have been suggestive of a durable relationship, but no evidence of that type was

adduced.

19. Correspondence was then entered into between the solicitors for the first appellant and

the Immigration and Naturalisation Service (“INIS”) of the Department of Justice and

Equality. The solicitors furnished the letting of 31 July 2015 revised to show it made joint

names, explained that the first appellant did not have a bank account in the jurisdiction

as he had no residency stamp, and that utility bills were paid by his partner as he had no

income. The evidence was that the couple had a new letting agreement, the third in joint

names.

20. The explanation for the date of the receipt for the wedding dress was that this was

purchased in anticipation of the State wedding, which for reasons explained above has

not yet occurred. Flight bookings for the family of the second appellant to attend the

proposed wedding in Ireland were also furnished.

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21. The first appellant explains that he did not recall being asked for details of his partner

when he applied for asylum.

22. It was also stated that the couple did not wish to start a family until the first appellant

was in a position to work and support his family.

Decision on statutory review

23. On 2 August 2017, the appellants sought a statutory review of the refusal under r. 25 of

the 2015 Regulations. By letter of 9 February 2018 the Minister wrote to the first

appellant proposing to uphold the first instance decision. The Minister expressed the clear

view that the relationship was one of convenience and stated this using the following

formula:

“[Y]our De Facto partnership may be one of convenience, contracted for the sole

purpose of obtaining a derived right of free movement and residence under EU law

as a spouse who would not otherwise have such a right.”

24. The letter went on to say that the Minister was of the opinion that the documentation

provided, and the statements made were “false and misleading as to a material fact.” The

first appellant was invited to make written representations before a final decision would

be made, but he did not do so. That fact formed some part of the decision of Humphreys

J. and of the argument on appeal.

25. The decision on review was given by letter of 8 March 2018 which formally refused the

application. The reasons were materially similar to those in the letter of February 2018

and the following statement was given in conclusion:

“Your application for permission to remain is now refused in accordance with the

provisions of Regulation 28(1) and (27)(1) of the Regulations. Your EU Treaty

Rights application is now closed. It is noted that you have an ongoing appeal for

Asylum, therefore your file has now been forwarded to the International Protection

Office for further appropriate action.”

26. The letter refers to the asylum application and that, when the appellants were both

interviewed on 24 April 2017, the first appellant said that he had entered the State via

Belfast and had travelled to Dublin by car. The letter identified an inconsistency in the

description given about how he and the second appellant separately entered the State,

the first appellant stating that they had entered together and the second appellant that

they had entered separately, she being the second to come. The letter also noted that

descriptions of the appellants’ first date are conflicting, and that the first appellant was

unable to say what employment the Union citizen had in the United Kingdom. It was

noted that the Union citizen had entered into a lease agreement on 31 July 2015, some

two weeks before she entered the State on 13 August 2015. The second appellant was

unable to offer any explanation of why they had moved their centre of interest from the

United Kingdom to Ireland.

Grounds for review

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27. Certiorari by way of judicial review was sought on three pleaded grounds:

(a) that the Minister had erred in fact and in law, acted unreasonably, irrationally,

disproportionately and in breach of the principles of fair procedures and natural and

constitutional justice in failing to provide reasons;

(b) that the Minister had erred in fact and in law in failing to have regard to the

documentation submitted and representations made by and on behalf of the

appellants;

transpose the Citizens Directive and in particular to ensure that domestic legislation

contains criteria which are consistent with the normal meaning of the word

“facilitate” and the words “durable relationship duly attested” used in article 3(2) of

the Citizens Directive with the effect that the appellants were unable to ascertain

the threshold to be met.

28. The respondents oppose the application for judicial review, plead that the reasons are set

out in full at first instance and on review, that there was no irrationality or

unreasonableness, fettering of a discretion, or breach of fair procedures, or failure to take

account of the relevant evidence. There is a specific plea that the respondents did not

accept that the evidence submitted on the application was adequate to establish a durable

relationship in accordance with law.

29. It is pleaded that the State has adequately transposed the Citizens Directive and is

compliant with the obligations under article 3(2) thereof.

The judgment of the High Court

30. Humphreys J. dismissed the application for judicial review in the exercise of his discretion

on account of the fact that the appellants failed to respond to the letter of 9 February

2018 in which the Minister set out a number of specific concerns, and invited a response

within 21 days.

31. The first appellant’s affidavit does not specifically aver that he did not receive the letter

but says that he “did not see it” until 1 March 2018, when he opened an e-mail of 14

February 2018 from his solicitor. He says he then emailed his solicitor to arrange an

appointment on that day, but they “did not arrange to meet before the decision issued”.

32. Humphreys J. dealt with this sequence of events at para. 7 at et seq. of his decision and

noted that the decision sought to be reviewed expressly noted that the applicants had

failed to address the specific concerns raised in the letter of 9 February 2018.

33. Humphreys J. adopted the approach taken by Murphy J. in Hennessy v. An Board Pleanála

[2018] IEHC 678 at para 44 that:

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“The applicant having failed to participate in the appeal process cannot now seek to

impugn that decision by introducing arguments that were never made to the

Board.”

34. Humphreys J. considered that by failing to avail of the statutory opportunity, the

appellants have thereby precluded themselves from obtaining relief by way of judicial

review. He did not, on the facts, accept the excuses or explanations given.

The appeal

35. The appeal centres on the question of the conclusion drawn by the Minister and upheld by

the decision of Humphreys J. that the appellants could not adduce satisfactory evidence

that they were parties to a “durable relationship duly attested”.

36. In short, the issues on the appeal are as follows:

(1) whether the Citizens Directive has been properly transposed in the State by the

2015 Regulations in a manner that is sufficiently certain and clear to be effective;

(2) whether the Minister failed to give reasons for his refusal to grant the first appellant

a residence card as a permitted family member of the second appellant; and

(3) whether the decision of the Minister was rational and probably flowed from the facts

of the case.

Discussion

37. That judicial review is a discretionary remedy is well established, and the failure of an

applicant for judicial review to engage with the decision maker can, in the discretion of a

court, result in a refusal of relief. The trial judge was perfectly within his discretion to do

so, and the grounds on which he did were fully explained and did, in my view, justify his

approach. I can see no error in the inferences he drew from the failure to respond nor in

the conclusion he drew regarding the lack of credibility in the excuse or explanation for

not responding to the letter seeking further information.

38. The exercise of discretion in these circumstances was expressly done in the light of a

failure to engage with the statutory opportunity, and therefore, the argument that

sometimes justifies bringing an application for judicial review without exhausting an

appellate process would carry little force. Had the appellants taken the statutory

opportunity to respond to the concerns of the Minister, the taking of that step would not

have precluded a judicial review. No reasonable justification was provided for that failure.

39. In my view, this consideration carries some weight in the correct approach to the appeal.

An appellate court is slow to overturn the exercise of a discretionary power in

circumstances where the decision maker has taken a reasoned and considered approach

to the question, and where, as here, the decision made has reflected previous authorities.

40. Whilst as a matter of law, an appellate court will show deference to the exercise by the

trial judge of his or her jurisdiction, it retains its own discretion. See the recent

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formulation, for example, at paras. 19 and 20 of the judgment of Peart J. in Tír Na N-Óg

Projects (Ireland) Ltd. v. P.J. O'Driscoll & Sons (A Firm) [2019] IECA 154:

“19. Before considering the evidence adduced by the respondent by way of prima facie

evidence of special circumstances, it is helpful to say something about this Court's

jurisdiction in relation to an appeal against what is essentially an order of a

discretionary nature. This question was comprehensively considered by this Court in

Collins v. Minister for Justice, Equality and Law Reform [2015] IECA 27. The Court

considered some diverging authorities but concluded that the true position is that

stated by McMenamin J. in Lismore Builders Ltd (In Receivership) v. Bank of Ireland

Finance Ltd [2013] IESC 6 which ‘best accord[s] with the balance of authority and,

indeed, with first principles’. In his judgment in Lismore McMenamin J. stated in

relation to the circumstances in which an appellate court might review an order

made by a High Court judge in the exercise of a discretion:

‘Although great deference will normally be granted to the views of the trial

judge, this court retains the jurisdiction of exercising its discretion in an

appropriate case. This is especially so, of course, in the event there are

errors detectable in the approach adopted in the High Court. The interests of

justice are fundamental. This is clear from the judgment of Geoghegan J. in

Desmond v. MGN [2009] 1 IR 737 …’.

20 At para. 79 of this Court's judgment in Collins, the Court stated:

‘79. For all these reasons, therefore, we consider that the true position is that set out by

McMenamin J. in Lismore Homes [sic], namely that while the Court of Appeal (or,

as the case may be, the Supreme Court) will pay great respect to the views of the

trial judge, the ultimate decision is one for the appellate court, untrammelled by

any a priori rule that would restrict the scope of that appeal by permitting that

court to interfere with the decision of the High Court only in those cases where an

error of principle was disclosed.’”

41. I would approach this aspect of the appeal by saying that the discretionary factors

identified by Humphreys J. did justify the dismissal of the application, and that the failure

by the appellants to engage fully with the statutory review procedure precludes the

granting of relief.

42. I return later to more fully consider this point in the context of the giving of reasons and

the alleged absence of fairness.

Reasons/observations made by the trial judge

43. Humphreys J. went on to make a number of obiter findings following his determination

that the application for judicial review should be refused on discretionary grounds. He

concluded that the pleaded irrationality and unlawfulness was vague or “omnibus” and not

sufficiently particularised as required by O. 84, r. 20(3) of the Rules of the Superior

Courts, and that relief was precluded under that heading. He also considered that the

decision was, in substance, reasonable and lawful.

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44. The letter refused the application for a residence permit and permission to remain in

accordance with r. 28(1) and r. 27(1) of the 2015 Regulations. Regulation 27(1)(a) of the

2015 Regulations, in its material part, provides as follows:

“The Minister may revoke, refuse to make or refuse to grant, as the case may be,

any of the following where he or she decides, in accordance with this Regulation,

that the right, entitlement or status, as the case may be, concerned is being

claimed on the basis of fraud or abuse of rights:

(a) a decision under Regulation 5(3) that a person be treated as a permitted

family member”.

45. In response to the argument that the Minister had wrongly purported to make his decision

under r. 27(1) and r. 28(1) of the 2015 Regulations, Humphreys J., at para. 17, found no

error in the light of the fact that the appellants could not meet the test in r. 5(1) of the

2015 Regulations in that they did not persuade the Minister that they were in a durable

relationship and therefore the provisions of r. 27(1) of the 2015 Regulations could not be

availed of.

46. Regulation 28(1) of the 2015 Regulations had no application and Humphreys J. was

correct that the reference to that regulation was, at worst, “surplusage” and that it was

probably the case that the fact that “the parties are purportedly religiously married in an

unbinding ceremony possibly provides some explanation for the references by the Minister

to spouses and to marriage-related language”, at para. 17. Humphreys J. went on to say

that “[i]t certainly cannot be regarded as fatal to the decision on the present facts nor did

it mislead or prejudice the applicants.”

47. These matters on which Humphreys J. made comments and which did not form the basis

of his decision, seem to me to be a correct analysis of the facts.

48. The judicial review is made to a large extent on the grounds that the Minister failed to

give reasons or acted irrationally or in breach of fairness. I agree with the approach

adopted by Humphreys J. that by not engaging fully with the statutory opportunity to

clarify the matters which had given rise to the concerns articulated by the Minister, the

appellants are precluded from advancing these heads of challenge.

49. For completeness I propose to briefly consider the argument that the reasons were

insufficient or that the reasoning was flawed.

50. It could scarcely be said that the Minister had failed to give reasons when his concerns

were not further addressed, or that the decision was irrational or unreasonable, where the

Minister had not been provided with answers that might have clarified some of the factual

concerns raised, or that there was a lack of fairness or transparency when the appellants

had failed to themselves engage with the process which contained an in-built opportunity

to achieve fairness in a substantive and concrete way.

51. I would dismiss these grounds of appeal.

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Transposition

52. The argument that the 2015 Regulations do not correctly or fully transpose the Citizens

Directive was made before Humphreys J. and before this Court on appeal and was

pleaded in the statement of grounds. Humphreys J. rejected the argument as no

challenge was made to the 2015 Regulations and, as he said, “[e]ven if the Directive is

not transposed properly, that does not give rise to a right of certiorari of the decision”

because the pleaded case relied on the 2015 Regulations.

53. However, Humphreys J. went on to make some comments on the transposition point and

quoted with approval the judgment of Keane J. in Safdar v. Minister for Justice and

Equality [2018] IEHC 698, at paras. 49 to 53, with regard to the argument that the

Citizens Directive was not properly transposed on account of the fact that the language of

the 2015 Regulations adopted the language of the Directive itself. He rejected the

argument, as had Keane J., that the language used was imprecise and lacked sufficient

detail or clarity.

54. The decision on the appeal from the decision of Keane J. in Safdar v. Minister for Justice

and Equality has been delivered today, and I refer the reader to the more complete

analysis of the transposition issue in that judgment. For the reasons stated there, I

consider that the challenge based on the alleged failure to transpose should fail.

55. The comments of Humphreys J. usefully express a broad proposition that it is “normally a

legitimate transposition of a directive to simply adopt the language of the directive

concerned without seeking to define terms that are undefined in the directive itself”, at

para. 21.

56. Humphreys J. also noted two other arguments which I consider to be correct, that

guidelines as to the meaning of “durable relationship” are, in fact, set out in the Irish

form EU1A, and the inclusion of those guidelines for the assistance of the administrative

function is legitimate.

57. Finally, Humphreys J. expressed the view, with which I also agree, that “the obligation to

transpose does not require that every element of the directive must be given statutory

language in full in every circumstance”, at para. 21.

58. Although his comments were obiter, the observations and reasoning of Humphreys J.

seem to me to be correct as appears more fully in my consideration of the point in the

judgment in Safdar v. Minister for Justice.

Summary

59. In summary, I am of the view that Humphreys J. correctly exercised his discretionary

powers by declining to grant judicial review on account of the failure by the appellants to

fully engage with the statutory review process, and to take the opportunity afforded to

comment further on the matters expressly identified by the Minister as giving rise to

concern.

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60. I consider that the failure to fully engage with the opportunity to clarify the matters of

fact which had given rise to concern on the part of the Minister makes it untenable for the

appellants to now argue that the Minister’s decision lacked reasons, was given in breach

of the obligations of fairness, and that the Minister’s decision was irrational. I do not

consider that the remedy of judicial review on these bases should be granted, although I

leave to another case the broader question of whether there may be circumstances where

failure to engage with the opportunity to further comment might preclude an application

for judicial review on jurisdictional grounds.

61. With regard to the other matters of substance considered by Humphreys J. in his

judgment, I consider that he was correct in the views he expressed, albeit obiter, and in

particular in the view he took that the Citizens Directive was correctly transposed by the

2015 Regulations. The comments and findings of Humphreys J. in this regard are obiter

but usefully considered in the context of the appeal against the judgement of Keane J. in

Safdar v. Minister for Justice in which the matter is more fully explored.

62. For these reasons, I am of the view that the appeal should be dismissed.