Pervaiz v The Minister for Justice and Equality & ors

Factual and Procedural Background

The Applicant, a non-EU national, claims to have been living in The City with his girlfriend, an EU national, since September 2016. In September 2017, the Applicant applied under the EC (Free Movement of Persons) Regulations 2015 to be treated as a permitted family member, asserting a durable relationship with his girlfriend. The application was initially refused and subsequently upheld on internal review by the Minister for Justice and Equality, who was not satisfied that the Applicant was a partner with whom the EU national had a "durable relationship duly attested." The Applicant then initiated judicial review proceedings challenging the Minister's review decision dated 14 May 2018 (the "Impugned Decision").

Legal Issues Presented

1. Whether the concept of a "durable relationship duly attested" as required by the EC (Free Movement of Persons) Regulations 2015 and Directive 2004/38/EC is sufficiently defined to allow applicants to understand and meet the criteria.
2. Whether the Minister's application of a two-year cohabitation benchmark, or a flexible timeframe below two years, in assessing durable relationships is lawful and consistent with the Directive.
3. Whether the absence of a clear definition or guidance on "durable relationship" breaches the principle of effectiveness and the rule of law.
4. Whether the Minister’s decision-making process in this context is subject to meaningful judicial review.
5. Whether the domestic legislation adequately transposes Directive 2004/38/EC, particularly regarding the facilitation of entry and residence for partners in durable relationships.
6. Whether the absence of an independent appellate mechanism against the Minister’s decisions breaches EU law.

Arguments of the Parties

Applicant's Arguments

• The Minister has unlawfully fettered discretion by imposing a strict, effectively mandatory two-year cohabitation requirement without scope for objective consideration of individual facts.
• The domestic legislation fails to define "durable relationship duly attested," resulting in an unlawful deprivation of the Directive's effectiveness and improper transposition of EU law.
• The Minister's approach breaches the rule of law by rendering the criteria for durable relationships unclear, unpredictable, and arbitrary.
• The Minister's decision-making process lacks adequate reasoning and transparency, preventing meaningful judicial review.
• The Respondents have failed to provide the advantage mandated by Article 3(2) of Directive 2004/38/EC to partners in durable relationships, thus unlawfully impeding the Applicant's rights.

Respondents' Arguments

• The phrase "durable relationship duly attested" should be given its natural and ordinary meaning, which applicants are free to apply.
• The Explanatory Leaflet for Form EU1A identifies the type of documentation required to evidence a de facto partnership, including evidence of cohabitation for the last two years.
• The obligation to facilitate entry and residence under Article 3(2) of the Directive only arises once the applicant is established as a permitted family member; since the Applicant was not found to be in a durable relationship, facilitation does not apply.
• The Minister applies a flexible approach to the two-year cohabitation requirement, which can be lowered depending on evidence, though this is not explicitly stated in the guidance.
• The absence of an independent appellate mechanism does not breach EU law, consistent with prior case law.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by examining the statutory and Directive provisions requiring that a non-EU partner of an EU national be treated as a permitted family member if in a "durable relationship duly attested." It noted the absence of any definition of "durable relationship" in both the Directive and the domestic 2015 Regulations, nor in any guidance, creating uncertainty for applicants, officials, and the court itself.

The Minister's approach, as revealed in the Impugned Decision and submissions, applies a presumed two-year cohabitation benchmark, though this is flexible and can be lowered. However, this flexibility is neither clearly communicated nor explained in decisions, leaving applicants unaware of applicable criteria or how they are assessed.

The court observed that the Minister's emphasis on evidence of cohabitation and shared assets reflects an unduly narrow and middle-class conception of a durable relationship, ignoring that relationships may be durable without cohabitation, shared finances, or children. The Minister's conflation of "durable relationship" with "cohabitation" is legally unfounded and procedurally unfair.

These deficiencies violate the principle of effectiveness by making it excessively difficult for individuals to exercise EU rights. They breach the rule of law by failing to provide clear, intelligible, and predictable legal criteria, undermining applicants’ ability to understand and assert their rights. The Minister’s decision-making process is opaque and non-reviewable, violating constitutional justice and EU law standards for judicial review, particularly under Art.47 CFEU.

The court rejected the Minister’s argument that facilitation of entry and residence only arises after an applicant is established as a permitted family member, emphasizing that the process of entertaining and fairly considering applications is itself a fulfillment of the obligation to facilitate under Article 3(2) of the Directive.

Case law was considered, including prior decisions emphasizing the necessity for clarity, effectiveness, and judicial review safeguards in transposing and applying EU law. The court found the current legislative and administrative framework deficient and inconsistent with these principles.

Holding and Implications

The court's final decision is to grant an order of certiorari quashing the Impugned Decision and remitting the Applicant's application to the Minister for fresh consideration.

The direct effect of this ruling is to require the Minister to reconsider the Applicant’s application in a manner consistent with EU law principles, ensuring clarity, fairness, and reasoned decision-making. The court did not establish new legal definitions or criteria for "durable relationship" but emphasized the necessity for transparency and adherence to the rule of law.

No new precedent was set beyond confirming that the current approach breaches the principle of effectiveness, the rule of law, and the right to judicial review under EU and domestic law. The judgment signals that prolonged cohabitation, such as the Applicant's nearly three to five years with his partner, should be a strong factor in assessing durability, though the Minister retains discretion within lawful bounds.