Minister showed 'middle-aged' attitude in refusing man's residence application over relationship status, court hears

The Minister for Justice brought a "strikingly middle-income and perhaps even middle-aged dimension" to a decision to refuse a man a residence card on the basis he was not in a "durable relationship", a High Court judge has said.

Mr Justice Max Barrett said there was an absence of clarity governing what is a durable relationship when he quashed the Minister's decision to refuse a residence card for the non-EU national whose girlfriend here is an EU national.

He said the Minister's criteria for assessing the durability of a relationship - evidence such as joint accounts and assets - may not apply to poorer and younger couples who have no such joint finances. It also may not apply to richer couples who for their own reasons operate separate accounts, he said.

In 2017, the man applied for a card after he and his girlfriend moved here in September 2016. The application was made under EU free movement of persons regulations which provides a "permitted family member" can reside where there is a partner "with whom a Union citizen has a durable relationship".

The Minister refused on the basis he had not provided evidence of such a relationship.

He brought a legal challenge claiming, among other things, there was an absence of domestic legislation providing criteria defining what a durable relationship is.

The Minister argued, among other things, the man submitted no documentation to back up his relationship claim other than "that relating to their alleged cohabitation history".

Mr Justice Barrett said there was no suggestion from EU regulation that a couple must be living together to have a durable relationship given they can be forced by work and other commitments to live apart. There was also no suggestion they must have a physical relationship before it is a durable one.

There was a "want of clarity" as to what durable relationship means as well as what period of time was used as a benchmark for defining it. The Minister appeared to have a two-year benchmark but this could be dropped to a lower figure in circumstances that are also unclear, he said.

This lack of clarity is fundamentally at odds with the well-established concept that law must as far as possible be intelligible, clear and predictable, he said.

The Minister said the man had not provided evidence of jointly-owned assets, shared bank account/insurance, evidence of travel or birth certificates of children. The couple have no children.

It seemed to the judge there was in this case, regretfully, evidence of "a box-ticking exercise notwithstanding that ostensibly it may look different.

"Moreover, it is again apparent that in assessing what is a durable relationship, the Minister is bringing a particular and regrettably close-minded sense to what constitutes a durable relationship," he said.

The Minister was clearly looking for a completely shared lifestyle when it is perfectly possible to have a familial relationship that does not feature things like shared assets, bank accounts and travel.

"There is also a strikingly middle-income and perhaps even middle-aged dimension as to what evidence the Minister considers a person might present of a 'durable relationship'," he said.

"Poorer couples, as in this case, starting out in life together may not have joint accounts and assets. Equal partners - rich or poor - may decide for valid reasons to operate separate bank accounts."

He granted the man an order quashing the refusal of the residence card and sent the matter back to the Minister for fresh consideration.