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You are here: BAILII >> Databases >> Irish Court of Appeal >> H v The Minister for Justice and Equality [2019] IECA 335 (18 December 2019)
URL: http://www.bailii.org/ie/cases/IECA/2019/2019IECA335.html
Cite as: [2019] IECA 335
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Baker J.
Whelan J.
McCarthy J.
THE COURT OF APPEAL
Neutral Citation Number: [2019] IECA 335
Appeal No.: 2019/307
BETWEEN/
HANY HEMIDA
APPLICANT/
RESPONDENT
- AND -
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT/
APPELLANT
JUDGMENT of Ms Justice Baker delivered on the 18th day of December, 2019
1. This is an appeal from the order of Barrett J. made on 31 May 2019 following delivery of a
written judgment on 22 May 2019, Hemida v. Minister for Justice and Equality
[2019] IEHC 363, by which he granted an order of certiorari quashing the decision of the Minister
for Justice and Equality (“the Minister”) of 5 October 2018 revoking the residence card of
Mr Hemida (“the respondent”).
2. The decision of the Minister was made pursuant to the powers contained in the European
Communities (Free Movement of Persons) Regulations 2015 (“the 2015 Regulations”) and
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”).
Background facts
3. The respondent is an Egyptian national who lives and works in Ireland. On 18 June 2013,
he was granted permission to remain in the State for a period of five years pursuant to
the European Communities (Free Movement of Persons) (No.2) Regulations 2006 (“the
2006 Regulations”), which were repealed by the 2015 Regulations. That permission was
based on his marriage to a Union citizen, a national of Slovenia, whom I shall call “Ms C”.
The couple have no children, although Ms C has two children of another relationship. The
couple married on 7 December 2012 and are now separated, but not divorced.
4. The fact that the couple are separated and not divorced means that the respondent must
be treated as still married to his estranged wife, as stated by the Court of Justice in
Ogieriakhi v. Minister for Justice and Equality (Case C-244/13) ECLI:EU:C:2014:2068, in
which the Court stated that:
“[T]he marital relationship cannot be regarded as dissolved as long as it has not
been terminated by the competent authority, and that is not the case where the
spouses merely live separately, even if they intend to divorce at a later date”, at
para. 37.
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5. On 15 March 2017, the respondent notified the Minister that he and his wife had
separated, but not when this happened. Thereafter, enquires were made by the Minister.
By letter dated 14 May 2018, the Minister communicated to the respondent of his decision
to revoke his permission to remain in the State, and following a review pursuant to the
statutory provisions, and having received representations and engaged with the
respondent, the Minister, by letter of 5 October 2018, notified the respondent that it was
intended to upheld the 14 May decision to revoke his permission to be in the State.
6. The respondent has no primary right to reside in the State and his right derives from and
rests on his estranged wife and her status as a person residing in the State in exercise of
EU Treaty rights under the 2015 Regulations. In those circumstances, the rights of the
respondent to continue to reside in the State involve an examination of the rights of his
estranged wife to so do.
7. Regulation 6(3)(c) of the 2015 Regulations provide that where a Union citizen who
previously worked, whether in employment or as a self-employed person in the State,
ceases to be in employment or self-employment, he or she may continue to reside in the
State in certain circumstances. For present purposes, the material condition is that he or
she be in duly recorded involuntary employment after having been employed for more
than one year and has registered as a job-seeker with the relevant office of the
Department of Social Protection.
8. Ms C worked for six months in Ireland in 2013 and has since then been in receipt of social
welfare payments. The evidence before the decision maker accordingly was that Ms C had
not worked in the State, whether as a self-employed or employed person, for more than
one year. She is at present, and has been for some time, in receipt of jobseeker’s
allowance from the Department of Social Protection.
9. On those facts Ms C could not have been said to be resident in the State in exercise of her
Union citizen rights in accordance with r. 6 of the 2015 Regulations.
The High Court judgment
10. The trial judge found that the decision could not stand on account of a failure to reason
or, as he put it at para. 2, “reason through” the fact that the respondent’s estranged wife
was and continued to be in receipt of social welfare payments and that the decision of the
Minister was “unreasonable, even irrational” in that it failed to reconcile the fact that
another department of State had concluded that Ms C did enjoy a primary right of
residence in Ireland as she was and continued to be in receipt of social welfare payments,
or explain why the Minister had come to a contrary view.
11. The short but precise decision of Barrett J. centres on his conclusion that neither the
respondent nor the judge himself could understand why the Department of Social
Protection had acted as it did.
12. On the separate but linked question of whether the respondent could provide further
documentation relating to the residence status of his estranged wife, Barrett J. took the
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view that, as the respondent’s evidence was that he did not have contact with his
estranged wife, he could not reasonably be expected to provide any further
documentation which was in control of the Department of Social Protection.
The appeal
13. The Minister appeals on fifteen pleaded grounds which may be grouped as follows:
a) that the trial judge failed to give appropriate consideration to the legal test set out
in r. 6(3)(c) of the 2015 Regulations in that it is the Minister for Justice and not the
Minister for Social Protection who makes the assessment for the purposes of
revoking a residence card, and that the differing functions of the two Departments
was not taken into account by the trial judge;
b) that the trial judge erred in fact and law in coming to the conclusion that the
Minister for Social Protection must have determined that Ms C was lawfully resident
in the State for the purposes of r. 6(3)(c) of the 2015 Regulations when on the
evidence before the Minister and that before the High Court was that the Union
citizen could not have been lawfully resident in the State in exercise of her EU
Treaty rights;
c) that there was no evidence before the High Court that the Department of Social
Protection had concluded that the Union citizen was exercising EU Treaty rights and
the High Court had no information regarding the basis of the decision of the
Department of Social Protection;
d) that the approach taken by the Department of Social Protection has no bearing on
the power of the Minister pursuant to r. 6(3)(c) of the 2015 Regulations, and that
any conflict must be resolved in favour of the decision of the Minister;
e) that the reasons given met the test in the authorities that the obligation is to give
reasons which are rational, cogent and adequate to ensure transparency in the
decision-making process, so that the receiving party consider whether to appeal or
review as the case may be: The Supreme Court decision in Connelly v. An Bord
Pleanála [2018] IESC 31.
The arguments
14. The respondent relies primarily on an argument that there must be consistency in
decision making between different organs of State and the decision of the Minister was
not coherent for that reason. It is argued that the decision maker had failed to reconcile
the fact that one department of State had taken or had appeared to take the view that
the respondent’s estranged wife was lawfully resident in the State.
15. It is not argued that the Minister was obliged to follow the decision of the Department of
Social Protection, and it is accepted that the Minister may depart from the decision or
views of that Department, but rather that the reasons given for so departing must be
coherent and consistent with the obligation and purpose of the giving of reasons in
administrative decision making.
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16. The respondent did not have access to the personal data of his wife or the results of the
investigation said to have been carried out by the Minister in the Department of Social
Protection before the decision was made. In that context, it is argued by the respondent
that there is no basis on which he or the High Court, on a judicial review, could determine
whether appropriate checks and investigations were carried out for the purposes of
making the assessment.
17. The Minister responds that the evidence before him that the Union citizen was in receipt
of social welfare payments was uncontroverted, and that the Minister was not constrained
in his decision by any view, or apparent view, taken by another government department
regarding the status of Ms C, especially as the respondent had not offered contrary
evidence.
18. It is argued that the Minister makes the assessment under immigration rules and that the
decision of the Department of Social Protection does not need to be reconciled.
19. Other arguments will appear in the course of the judgment.
20. It is convenient to first set out the 2015 Regulations.
The 2015 Regulations
21. The 2015 Regulations came into force on 1 February 2016 and are not materially different
from those of the 2006 Regulations.
22. Regulation 6(3)(a) of the 2015 Regulations confers on a Union citizen the right to reside
in the State for a period of longer than three months, in certain circumstances, and
provided the conditions are met. Regulation 6(3)(a), in its material parts, provides:
“A Union citizen to whom Regulation 3(1)(a) applies may reside in the State for a
period that is longer than 3 months if he or she—
(i) is in employment or in self-employment in the State,
(ii) has sufficient resources for himself or herself and his or her family members
not to become an unreasonable burden on the social assistance system of the
State, and has comprehensive sickness insurance in respect of himself or
herself and his or her family members,
(iii) is enrolled in an educational establishment accredited or financed by the
State for the principal purpose of following a course of study there and has
comprehensive sickness insurance in respect of himself or herself and his or
her family members and, by means of a declaration or otherwise, satisfies
the Minister that he or she has sufficient resources for himself or herself and
his or her family members not to become an unreasonable burden on the
social assistance system of the State”.
23. The present case concerns r. 6(3)(c) and (d) of the 2015 Regulations:
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“(c) Where a person to whom subparagraph (a)(i) applies ceases to be in the
employment or self-employment concerned, that subparagraph shall be deemed to
continue to apply to him or her, where:
(i) he or she is temporarily unable to work as the result of an illness or accident,
(ii) he or she is in duly recorded involuntary unemployment after having been
employed for more than one year and has registered as a job-seeker with a
relevant office of the Department of Social Protection,
(iii) subject to subparagraph (d), he or she is in duly recorded involuntary
unemployment after completing a fixed-term employment contract of less
than a year, or after having become involuntarily unemployed during the first
year, and has registered as a job-seeker with a relevant office of the
Department of Social Protection, or
(iv) he or she takes up vocational training and, unless he or she is involuntarily
unemployed, the training relates to his or her previous employment.
(d) In a case to which subparagraph (c)(iii) applies, subparagraph (a)(i) shall be
deemed to apply to the person concerned for 6 months after the cessation of the
employment concerned only, unless the person enters into employment or self-
employment within that period.”
24. The view taken by the Minister was that Ms C did not satisfy r. 3(c)(iii) of the 2015
Regulations, as she had not been in employment for more than one year prior to finding
herself unemployed. The claim of the respondent to be permitted to remain in the State
was based on the fact that his wife has been long-term in receipt of social welfare
payments, including jobseeker’s allowance within the State. Therefore, the Minister’s
analysis of his application was confined to those factors. It was not suggested or argued
that Ms C might be lawfully resident in the State on any other basis.
25. On the facts submitted by the respondent to the Minister, Ms C was employed in the State
for less than a year. No evidence was adduced that she suffered any illness or accident or
that she left work to take up vocational training. On a reading of the 2015 Regulations at
best, she could have remained in the State under r. 6(3)(c)(iii) for six months after the
cessation of her employment unless she entered employment or self-employment within
that period, under r. 6(3)(d), and there was no evidence that she did.
26. Therefore, on the evidence, it appears that by 2014 Ms C ceased to be entitled under r.
6(2)(d) of the 2015 Regulations to continue to reside in the State. That had the effect
that the right of the respondent, which derives from and is dependent upon the right of
his estranged wife, ceased thereafter.
27. The recent decision of the Court of Justice in Neculai Tarola v. Minister for Social
Protection (C-483/17) ECLI:EU:C:2019:309, analysing the provisions of the Citizens
Directive in light of the stated objective of protecting a Union citizen who had been
employed or self-employed in the host Member State, confirmed the position that he or
she retains the status of worker indefinitely if he or she is unable to work as the result of
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illness or accident, or has become involuntarily unemployed, but only after being in
employment in the host Member State for more than one year.
28. The question may be distilled to the question whether the fact that Ms C is in receipt of
social welfare amounts to an acceptance of, or a positive decision by, the Department of
Social Protection that Ms C is lawfully resident in the State and whether that fact is
relevant to, or determinative of the decision made by the Minister for the purposes of the
2015 Regulations.
29. The trial judge concluded that, as a person must be habitually and lawfully resident in the
State to lawfully receive jobseeker’s allowance, and as Ms C was in receipt of social
welfare payments, an organ of State must have taken the view that she was lawfully and
habitually resident here and that that decision could not readily be reconciled with the
view taken by the Minister under the 2015 Regulations.
30. Barrett J. correctly noted that the Minister making a decision under the 2015 Regulations
was entitled to come to his own conclusions and could come to a contrary conclusion to
that arrived at by the Department of Social Protection, but that the reasoning was flawed
on account of the failure to reconcile the different approach of another department of
state.
Abouheikal v. Minister for Justice & Equality
31. Both parties relied in argument on the recent decision of Humphreys J. Abouheikal v. The
Minister for Justice and Equality [2019] IEHC 124, which I propose to analyse in some
detail.
32. Humphreys J. was considering the position of Mr Abouheikal, also a citizen of Egypt, who
had been married, was separated, but not divorced from his Union citizen spouse. Mr
Abouheikal’s spouse had worked for twenty-six weeks in the State and had been in
receipt of State benefits thereafter. Judicial review of the decision of the Minister to refuse
the non-Union citizen a right to continue to reside in the State was sought, inter alia, on
the ground that there was an apparent inconsistency between the approach of two
departments of State.
33. Humphreys J. noted that the Minister had material before him that the estranged wife of
the applicant was not in employment for one year and did not re-enter employment
within six months of the end of her previous employment and this evidence pointed to the
fact that she had ceased to exercise her EU Treaty rights at the relevant time. Humphreys
J. said that it would appear as a corollary that she may have been receiving payments to
which she was not entitled:
“Turning to the social welfare aspect, it is accepted that it would appear as a
corollary of the Minister's position as to the wife's entitlements here, that the
Department of Social Protection was making payments to which the wife was not
entitled. One wonders if there is any way to avoid such situations in future, either
by greater consultation with the Department of Justice and Equality or perhaps
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preferably by the Department of Social Protection more systematically and correctly
applying the requirements of the 2015 regulations”, at para. 17.
34. The argument made before Humphreys J. was that the Minister had failed in not making
a finding as to the exact legal status of the estranged wife of the applicant and he
concluded as follows:
“It was argued that the Minister did not make a finding as to the exact legal status
of the wife, so he could not lawfully make a finding in respect of the derived right.
However, I would uphold the Minister's position that he is not obliged to articulate a
concluded view of her status. His position is that he is not aware of lawful status
but there may be other factors he is not aware of, nor is he obliged to seek to
remove her even if she is there unlawfully. The Minister's broad discretion in
immigration terms means he is allowed to tolerate ambiguous situations if he is so
minded”, at para. 18.
35. Humphreys J. refused judicial review as the conditions for exercising EU Treaty rights had
not been met and the decision was therefore not unlawful.
36. Barrett J. distinguished that decision as the Department of Social Protection was
perceived by Humphreys J. as having acted erroneously, but Barrett J. concluded that he
himself was not able to adjudge whether the Department of Social Protection had acted
correctly and was not prepared to accept that there was a presumption in favour of the
correctness of one or another Department.
37. I accept the argument of counsel for the respondent that the decision of Humphreys J. in
Abouheikal v. The Minister for Justice and Equality can be distinguished on the facts
because of the wife of Mr Abouheikal was not claiming social welfare payments at the
date of the decision. However, the real point of difference is the extent of the alleged
inconsistencies between the approach taken by one Minister of Government and that
taken by another, precisely the point which is central in the present case and which was
not central to the decision of Humphreys J.
Reasons
38. I turn now to consider whether Barrett J. was correct that the reasons given by the
Minister do not stand up to scrutiny and are not sufficient to meet the test from the
authorities that they be clear and based on the evidence before the decision maker and
be matters of which the respondent was aware.
39. The conclusion of Barrett J. that he could not adjudge whether the Department of Social
Protection had acted correctly does not fall for consideration. The decision of that body is
not under challenge, and even if one assumes that the Department of Social Protection
did act correctly in continuing to pay jobseeker’s allowance to Ms C, the evidence
presented by the respondent would suggest otherwise, and it was for him to adduce the
evidence from his estranged wife from whom it seems he separated only in February
2017.
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40. The respondent does submit that his relationship with his estranged wife is poor and she
has not afforded him any assistance in his application. Be that as it may, he offered no
explanation for apparently not asking her consent to the release to him of certain
information from the Department of Social Protection. She may have refused, she may
have had good reason to refuse, but the onus lay on the respondent to establish the facts
on which the Minister could come to a determination.
41. In that regard, I note that the initial correspondence of 8 November 2017 from the
Minister to the respondent sought up to date evidence of his right to reside in the State
including evidence of Ms C’s activities in the State. That letter was sent seven months
after he notified the Minister of the fact that he and Ms C had informally separated and
that she had left their home a month before. The respondent provided one receipt from
the Department of Social Protection dated 3 October 2017 showing that Ms C was in
receipt of jobseeker’s allowance but no more. He was, on his own evidence, living with
her in the period from the date of their marriage on 7 September 2012 until they
separated four and a half years later in February 2017. He must, in those circumstances,
be assumed to be aware of her work history, of whether she returned to employment
within the statutory period provided in r. 6(3)(d) of the 2015 Regulations or whether,
after she ceased to be in employment, she took up vocational training. One must assume
that the evidence he provided to the Minister was correct, and it inexorably pointed to the
fact that Ms C had worked for less than twelve months in the State and did not take up
employment thereafter.
42. The reasoning is clear, and the respondent was informed of the exact number of
contributions made by his estranged wife and when these were made, of the social
welfare claims and payments made to her in respect of her two children and her
dependent partner, and the nature of those payments. The respondent was also told that
his estranged wife had not worked in the State since 2013. The conclusion which the
Minister drew from this evidence was that she had not been resident in the State “in
conformity with the Regulations since 2013”, with the result that the derived right had
ceased. The reasoning of the Minister cannot be faulted on account of absence of detail
and absence of explanation.
43. I conclude the appeal must succeed on that ground, but it overlaps to a large extent with
the argument that the decision was irrational or failed to accord with reason.
Discussion on reasonableness/irrationality
44. The Union citizen family member must be exercising rights as a Union citizen and either
be economically active or lawfully in receipt of social welfare payments in order that the
non-EU family member be entitled to rely on r. 6. The fact that Ms C was and continues to
be in receipt of social welfare payments, while it might be evidence which supports the
application of the respondent is not determinative of the decision of the Minister under
the 2015 Regulations.
45. The Minister was entitled to, and did in fact, make his decision under the Regulations of
2015, and the evidence before him. The reasons the Department of Social Protection
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continues to pay jobseeker’s allowance to Ms C are not clear, but in my view, they do not
need to be. The Minister making the decision under the 2015 Regulations is not bound by
any determination of the Department of Social Protection, and that is so even if it can be
shown, as it has not been shown, that the Minister for Social Protection has made a
recent and active decision to continue to pay jobseeker’s allowance to Ms C. There was no
evidence that the Department of Social Protection had made a conclusion or a
determination as to Ms C’s entitlements, and it may well be that inertia has led to the
continued receipt by her of payments.
46. It cannot be said, as is pleaded at para. (iii) of the statement of grounds, that the Minister
failed to have regard to the fact that Ms C was in receipt of jobseeker’s allowance, but
rather it is the case that that fact was in evidence before the Minister but was considered
by him not to amount to a determination that she was lawfully in the State.
47. In this argument some consideration is to be given to the contention made by the
respondent that the Minister failed to produce the records from Department of Social
Protection to support his findings.
The social protection records
48. The decision of the Minister sets out in some detail the evidence gleaned from the search
in the records of the Department of Social Protection and explains in detail why the
Minster decided that the evidence from that Department, even taken at its height, pointed
to the fact that Ms C had not worked in the State in the manner required by the 2015
Regulations so that she, and anyone claiming through her, continued to have the right to
reside here.
49. It is argued that the evidence taken from the files in the Department of Social Protection
ought to have been put before the High Court, so they could be properly scrutinised. It is
said that the Minister ought to have explained by reference to the decision of the
Department of Social Protection why that Department had taken the view it did regarding
the various welfare payments made, and which continue to be made to Ms C.
50. The Minister did not file an affidavit in the High Court, but the statement of opposition
pleads, at para. 5, that he had conducted a “thorough search” within the Department of
Social Protection and that this has shown that the Union citizen has not made
employment related contributions since 2015, that she has been in receipt of various
social welfare payments since 5 September 2015, and that the evidence gleaned shows
that she has not been exercising EU Treaty rights within the meaning of r. 6(3)(a) of the
2015 Regulations. An affidavit of verification is required by o. 84 r. 22(4) of the Rules of
the Superior Courts and accordingly, the fact of that search is not in evidence.
51. Had the Minister’s statement of opposition disclosed the opposite fact, namely that
investigations had disclosed that Ms C had, in fact, been working within the State and had
on the evidence available from a search in the files been shown to be exercising or
purporting to exercise her rights as an Union citizen, and had the respondent required
sight of even redacted copies of those documents, the position might have been different
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as the evidence on which the Minister based his decision might have been useful or
indeed central to his application for a review of a refusal. However, on the face of the
pleadings, the Minister’s pleaded case is that Ms C may not have been exercising her
rights as an Union citizen, and further disclosure is unlikely to have assisted the
respondent in any way.
52. There may be reasons derived from the personal privacy right of Ms C that would prevent
such disclosure, but no argument is made by the respondent that the information is not
correct and, in the absence of some evidence to suggest that further scrutiny was
justified, I see no error in the approach of the Minister to the apparent inconsistencies
between the two decisions of different Departments.
53. There may be cases where it would be necessary to put in redacted or other suitable form
the information regarding the work or social welfare history of a Union citizen from whose
rights an applicant claims derived rights, but in the present case the respondent on his
pleaded case and his sworn affidavit evidence, resided with his estranged wife until 2017
and he was in those circumstances in a position to advance some assertion or evidence,
however weighty, that might at least throw some doubt on the evidence gleaned by the
Minister from the files in the Department of Social Protection. He could for example have
asserted that Ms C had continued to work after 2013 and that while he and she lived
together she had worked for longer than the asserted few months or had undertaken a
course of vocational study after she ceased working.
54. Therefore, I consider that a proportionate response to the question of disclosure is that
that the Minister was not required to disclose these documents obtained through the
Department of Social Protection as nothing was to be gained from that disclosure.
Consistency in decision making
55. There remains the argument made by his counsel that the respondent has found himself
with a decision that is incoherent when read alongside the decision of the Department of
Social Protection. His counsel argues that there is a lack of coherence in the
administrative decision making, and that some consistency at least ought to be found
between the different decisions made by different Departments of Government regarding
Ms C and her activities in the State in the relevant times.
56. Reliance is placed on the dicta of Clarke J. in D.E. (an Infant) v. Minister for Justice and
Equality [2018] IESC 16, [2018] 3 IR 326, at para 28:
“There may well be merit in the publication of criteria by reference to which general
statutory discretions or adjudications are likely to be exercised or made. The more
that a relevant discretion may come, in practice, to be exercised by a number of
different persons or groups of persons the more important it will be, in the interests
of consistency, that there be some guidance as to how the power concerned should
be exercised in practical terms. While it will never be possible to achieve absolute
consistency, achieving an even-handed approach to the exercise of a statutory
power is undoubtedly consistent with good administration”.
Page 11 ⇓
57. It is argued that the absence of such consistency in the present case means that the
decision of the Minister is unsafe.
58. It is argued that there was a failure to address the issue of consistency “head on”, to
borrow the dicta of Belcher J. in Dear v. Secretary for State for Communities and Local
Government [2015] EWHC 29 (Admin), at para. 32, and that any express departure from
the decision of the Department of Social Protection had to be fully and coherently
reasoned.
59. The fact that Ms C seems to have been in receipt of lone parent allowance during the time
when she and the respondent were cohabiting as a married couple did not form part of
the backdrop to the decision and a consideration of the case on that basis might arguably
have been unduly prejudicial to the respondent, having regard to his assertion in
correspondence that he was not aware of that fact.
60. The decision was made on a more narrow basis, namely that the evidence presented by
the respondent confirmed by a search of the files in the Department of Social Protection,
showed that Ms C could not have satisfied the test set out in the 2015 Regulations having
regard to the short period of employment she has had in the State. The respondent did
not raise any doubt about that evidence. I do not consider in those circumstances the
Minister needed to reconcile the approach taken to what that might appear to be, but
does not inevitably fall to be considered as, a contradictory decision of the Department of
Social Protection.
Discussion on coherence
61. It cannot be stated, as is argued by counsel for the respondent, that the Minister failed to
take into account the fact that Ms C is and has been in receipt of jobseeker’s allowance.
The Minister did take it into account, chose not to make a determination that the
approach of the Department of Social Protection was incorrect, but made a separate
determination that the test set out in the 2015 Regulations had not been satisfied on
account of the uncontested facts regarding the length of time during which Ms C had
worked in the State. The Minister did not have to decide if the continued payment to Ms C
of jobseeker’s allowance was correctly made, and that was not a decision for this Minister
but for another Minister of Government. It goes without saying that to make that decision
would have involved Ms C being invited to make submissions and would have been a
matter with which the respondent would not be engaged.
62. The position adopted by the respondent was to call upon the Minister to explain what is
seen as being a discrepancy or inconsistency, but without being in a position himself to
advance any evidence that would throw doubt on the evidence put before him from the
investigation carried out by the Minister in the files of the Department of Social
Protection.
63. It is true that, from one perspective, the decisions may have the appearance of being
contradictory, but the decision of the Minister challenged in these proceedings is based on
the evidence gleaned by the Minister and in respect of which the respondent has not
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presented contrary evidence or even a contrary factual scenario. Again, had the
respondent said that, to the best of his recollection, his estranged wife had worked for
more than a year in the State, or that she had taken up vocational study, his argument
that the decision of the Minister was not based on fact might have carried some weight.
However, he did not to do this and in effect he sought to reverse the burden of proof
merely on account on what he says is an ostensible contradiction between the approach
of two different Departments of Government.
64. I conclude that the trial judge was incorrect and that the decision of the Minister was
based on factual evidence which was not contradicted by the respondent, was made in
the exercise of a discrete statutory process, was sufficiently and coherently reasoned, and
was a reasonable conclusion in the light of the evidence.
65. The respondent did not dispute the factual basis on which the Minister made his decision,
but rather sought to argue that the Minister could not make that decision because another
arm of State might well have had reasons to continue to pay jobseeker’s allowance to Ms
C.
66. The respondent did not contradict any of the chronology or factual matters identified by
the Minister, although he did say that he was unaware that his estranged wife appeared
to be claiming one parent allowance while they were cohabiting.
67. To that extent, this judicial review is primarily about the weight of evidence before the
trial judge.
68. While counsel for the respondent argues that the Citizens Directive must be applied with a
degree of flexibility, in reliance on the decision of the Court of Justice in
Pensionsversicherungsanstalt v. Brey (C-140/12) ECLI:EU:C:2013:565, I consider that
this decision means that the Member States had a margin of appreciation in the manner
in which the directive was incorporated and implemented in national law, but does not
support an approach that the application of the provisions imports such a wide discretion
as to lead in the present case to a finding against the weight of the evidence before the
decision maker.
69. It is clear, and I accept this argument of counsel for the respondent, that Ms C could be
lawfully resident in the State on several bases. But the respondent, on his own evidence,
continued to reside with his estranged wife until early 2017 and he must know the basis
on which she continued to reside here and whether she was studying, whether she was ill,
whether she, in fact, worked so that the data obtained by the Minister from the
Department of Social Protection files is incorrect.
70. The argument of counsel for the respondent seems to me to wrongly seek to reverse the
burden of proof, and the burden remains on the respondent to show that the decision is
invalid for one or other of the pleaded reasons. He cannot say that the decision is invalid
merely on account of the fact that no evidence has been adduced to show that Ms C is
lawfully residing in the State, when all of the evidence the Minister says he relied on
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shows the contrary proposition. The burden lies on the respondent to present sufficient
evidence, even without documentary proof, that matters are not as they appeared to the
Minister.
Conclusion and summary
71. In essence, the difficulty that the respondent sought to identify in the decision of the
Minister is the fact that the Minister for Social Protection has continued to provide his
estranged wife with ongoing social welfare payments, and it is argued that this is
inconsistent with the decision of the Minister. The decision that the estranged spouse of
the respondent was not resident in the State and exercising her EU Treaty rights, and that
the derived right of the respondent must fall on that account, was made in consideration
of the distinct and different test set out in the 2015 Regulations.
72. I consider that the decision of the Minister is not flawed and that the trial judge was
incorrect to conclude otherwise. The Minister made the decision on the uncontroverted
evidence before him that Ms C had worked in the State for six months only and that
evidence did not support a proposition that she was residing in the State in exercise of
her Treaty rights. There was no error, therefore, and the continued making of social
welfare payments to Ms C was not determinative of the residence application.
73. For these reasons, I consider that the appeal should be allowed.
Result: Allow appeal