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Court of Appeal dismisses appeal and upholds decision of the High Court striking out the proceedings against the fourth named defendant and dismissing the appellant’s application for an order of certiorari quashing the decision of the first named respondent refusing the appellant a right to permanent residence in the State, on the grounds that: (a) the appellant's wife had not satisfied the requirement for five years’ continuous residence in the host Member State prior to returning to Poland; (b) the High Court judge was correct in his interpretation that only the periods of residence of family members who are European Union citizens who lawfully move to another Member State for the purpose of exercising a qualifying economic activity protected under EU Law will be taken into account for the purposed of acquisition of a right of permanent residence by family of a European Union citizen who are not nationals of a Member State; (c) the trial judge was correct in holding that the evidence clearly established that the appellant's wife's absence was not temporary; and (d) no leave was granted to seek any relief against the fourth named respondent and the High Court judge was entitled to strike out the proceedings against that party.
McGovern J (nem diss): Judicial review - asylum and immigration - appeal of a decision striking out the proceedings against the fourth named defendant and dismissing the appellant’s application for an order of certiorari quashing the decision of the first named respondent refusing the appellant a right to permanent residence in the State - 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”) - appellant is a Nigerian national who accepts that he entered the State unlawfully - unsuccessfully applied for asylum in 2004 - married an EU citizen from Poland who was then working and residing in the State - appellant was given permission to reside in the State for a period of 5 years - the appellant and his wife became unemployed and the appellant's wife returned to Poland in 2009 - appellant sought a renewal of his permission to remain - the appellant was informed that there was no basis for further permission being granted to him to remain as his Union citizen spouse had departed the State in July 2009 and under E.U. law he had no legal immigration status in the State - the appellant was informed that his application for a retention of the residence card submitted on form EU5 could not be accepted on the ground, inter alia, that his Union citizen spouse had left the State in July 2009 - appellant challenged this decision - whether the appellant satisfied the requirement of Article 16(2) of the Citizens Directive of residing in the host Member State for a continuous period of 5 years that would give rise to a right of permanent residence - whether the the first six months absence by the appellant's wife should be treated as temporary - whether the trial judge was entitled to strike out the proceedings against the fourth named respondent - appeal dismissed.
Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.
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