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Supreme Court rules man's arrest for deportation was unlawful

A young Pakistani man was unlawfully arrested for deportation because it happened a day before before a final decision refusing him residency on the basis of his father's "marriage" to a Romanian woman, an EU citizen, the Supreme Court has ruled.

Supreme Court rules man's arrest for deportation was unlawful

A young Pakistani man was unlawfully arrested for deportation because it happened a day before before a final decision refusing him residency on the basis of his father's "marriage" to a Romanian woman, an EU citizen, the Supreme Court has ruled.

Under regulations of 2015 giving effect to the EU Free Movement of Persons Directive, the man was entitled to temporary residency pending final determination of his application for residence but the problem was he was arrested a day before that, the court held.

Contrary to what the High Court and Court of Appeal decided in his case, there is no two-part test under the regulations requiring an applicant for residency to show, at the time of application, a prima facie case by virtue of being a family member of an EU national followed by proof of dependency and relationship, Mr Justice Peter Charleton said.

The man, now aged 26, came here as a student in 2013.

He was on bail pending the outcome of his challenge to his arrest and was in court on Monday when the five-judge court upheld his claims his arrest was unlawful.

It granted his counsel Rosario Boyle SC a declaration to that effect and said he is "free as of now".

In the unanimous judgment, Mr Justice Charleton said the applicant was formally refused refugee status in March 2015. A July 2015 deportation order was notified a month later to the Garda National Immigration Bureau because he had unlawfully left the Balseskin reception centre without a forwarding address.

Also in July 2015, the applicant's father got a residence card based on his "marriage" in November 2014 to the Romanian woman. The father then sought to have his children join him here.

The judge noted the "marriage" occurred when the father was unlawfully in the State and the father described his wife as "Polish" to immigration officers in July 2017 while she appeared not to know about his movements.

On June 20, 2018, the applicant son was arrested in Portlaoise for purposes of deportation.

In a letter of June 27, 2018, misdated as June 21, 2018, he was informed the Minister had on June 21 refused his residency application under Article 7 of the 2015 Regulations on the basis he was not a qualifying family member because he was not a dependant of an EU citizen.

On the same day, June 27, 2018, the Minister revoked the father's residency card on the basis his marriage to the Romanian woman was one of convenience. The Minister said her limited earnings did not support claims she was in genuine employment and was also not satisfied she was exercising EU law rights.

Mr Justice Charleton said Article 7.6 of the Regulations provides an applicant may remain in the State pending a final decision on their application.

There was no basis for reading into the regulations a requirement, in order for a stay here to be lawful under Article 7.6, a person applying for a residence card must first establish they are a qualifying family member, he said.

That was also not the procedure the Minister followed in dealing with this application, he said.

He said no decision was made on the residency application until after the applicant was arrested.

The residency refusal arose from the fact, on checking the alleged residence in Portlaoise of the applicant's father and stepmother, "no sign of his father's new wife had ever been spotted".

The applicant, aged over 21, was therefore not a dependant child of an EU national and there was nothing to indicate this reasoned refusal was anything other than a "thorough and careful analysis" of the situation and nothing to suggest the refusal was invalid.

"The problem for the Minister is the reasoned refusal came a day after the applicant's arrest."

He noted the man had said, in case management hearings for his appeal, he wished to return to Pakistan of his own accord but not in circumstances where he had not been lawfully arrested.

The judge said he was not commenting on whether that statement was "genuine" or whether the deportation order should be enforced notwithstanding the unlawfulness of his arrest.

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