Decision refusing residence to a non-EEA national disregarded relevant considerations

Judicial review – European Law – free movement of persons - proper interpretation and application of Regulation 6(3)(c) of European Communities (Free Movement of Persons) Regulations, 2015 - regulation 6(3)(c) of the 2015 Regulations provides for the retention of a right to residence on the part of an EU citizen exercising free movement rights in the State in prescribed circumstances - 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 Enterprise Affairs and Social Protection - have regard to the decision of the DEASP to award Jobseeker’s Allowance - whether, where an EU citizen spouse is in involuntary unemployment, it is necessary for the said EU citizen spouse to have been in continuous employment for more than a year immediately prior to registering as involuntarily unemployed in order to successfully rely on retained rights as a worker to establish a derived right of residence at the time of initiation of divorce proceedings or whether periods of earlier employment prior to that time could suffice - preliminary issue as to time – papers filed one day outside three month time limit – leave application moved 8 days outside required time - non-EEA national and divorced spouse of an EU citizen – applied for residence on the basis of his marriage to an EU citizen – inquiries revealed that his wife was at the time of assessment of the application, which was sometime after the application was made on each occasion, no longer in employment with the employer identified in the application – subsequently granted permission for a five year visa – divorced - permission to reside was not revoked following his divorce - sought retention of his residence permission in a personal capacity - no issue arises regarding the duration of the marriage or the period of married residence in the State in these proceedings – application refused - advised in the refusal letter that his derived rights were dependent on his EU spouse continuing to exercise her EU Treaty Rights in the State - he had not submitted evidence of the European Union citizen’s activity in the State at the time when divorce proceedings were initiated - lack of co-operation from divorced spouse - Applicant himself has submitted evidence confirming a full employment history – review application - review officer’s decision - decision was based on a conclusion that at the time of the initiation of the divorce proceedings the Applicant’s EU citizen spouse was not exercising her EU Treaty rights because she had not been working for a period of twelve months when divorce proceedings were initiated - no information on file regarding the circumstances of her departure from her previous employment – no consideration is recorded anywhere in the record of the decision as having been given to the question of whether the EU citizen might have worked for in excess of one year during the period of her residence in the State prior to September, 2013 when she first received Jobseeker’s Allowance and no account was taken of these earlier periods of activity in the State in determining whether the EU citizen had been exercising EU Treaty Rights in the State at the date of initiation of the divorce proceedings – procedural history – statutory framework - whether good and sufficient reason exists for extending time – change of solicitors - no identifiable prejudice – extension of time granted - whether the Minister applied the correct test in finding that the Applicant's EU citizen wife was not exercising her EU Treaty Rights at the time of the divorce - whether the Respondent properly applied the “Involuntary Unemployment” under Regulation 6(3)(c)(ii) - the real question in establishing eligibility under Regulation 6(3)(c)(ii) is simply whether a person is involuntarily unemployed - Respondent proceeded as though the fact that the decision of the DEASP was not determinative meant that there was no requirement to consider whether the decision provided supportive evidence that the EU citizen was involuntarily unemployed at the material time - disregard of a relevant consideration and a failure to weigh relevant evidence - failure to either enquire as to FÁS/Intreo registration or advert to the absence of evidence of such registration in the decision-making process – Court satisfied that the fact that Jobseeker’s Allowance was awarded by the DEASP is not determinative of the question of whether the EU citizen was involuntarily unemployed within the meaning of Regulation 6(3)(c)(ii) as contended on behalf of the Respondent – alleged failure to consider previous employment for the purpose of the one-year requirement - circumstances in which a right of residence will be retained are not exhaustively sets out in Article 7(3) - difficult to see how Article 7(3) of the Directive can be construed as requiring a continuous or unbroken period of employment immediately prior to a period of involuntary unemployment in order to give rise to the retention of a right of residence in the absence of words clearly stating such a requirement - Respondent erred in law in refusing the application for residence in this case in that she closed her mind to the potential relevance of employment and other activity evidencing the EU citizen’s exercise of EU Treaty Rights during earlier years, focusing only on the 12-month period prior to the initiation of divorce proceedings – fair procedures - failure to disclose the EU citizen spouse’s contribution records for the years 2009, 2010, 2011 and 2012 in some redacted or appropriate form, if contained in the information received from the DEASP and available to the Respondent or to transparently address them in the decision making process, undermines the fairness of the process – judicial review granted.