Tahir and Anor v Minister For Justice, Home Affairs and Migration (Rev1)

Factual and Procedural Background

The Applicants are a married couple. One Applicant is a national of The State B and the other Applicant is a third-country national spouse from Country C. The third-country national spouse had been issued a residence card on the basis of a derived right of residence under the Citizenship Directive prior to The State B's withdrawal from the European Union. The family lived in The State (the host State), encountered housing difficulty and emergency accommodation, and left The State in or about March 2020. They did not return permanently until 30 November 2021.

The Minister for Justice, Home Affairs and Migration (the Respondent) proposed to revoke the spouse's residence card by letter dated 18 October 2022 and revoked it by decision dated 30 November 2022. The Applicants sought a review. By decision dated 17 September 2024 (the impugned decision) the Minister affirmed the revocation. The Applicants brought judicial review challenging that revocation. A judgment was delivered by Judge [Last Name] on 9 June 2026.

Legal Issues Presented

1. Whether the impugned decision complied with the duty to give adequate reasons, having regard to the Applicants' representations and the requirement that reasons enable challenge and judicial review.
2. Whether an absence from the host State in excess of twelve consecutive months necessarily and irrevocably breaks the "continuity of residence" requirement under the Withdrawal Agreement and thus defeats any derived right of residence.
3. Whether certiorari should be refused as futile on the basis that, even if the impugned decision is vitiated, the Applicants could not obtain any benefit on remittal because continuity was irretrievably broken.

Arguments of the Parties

Applicants' Arguments

• The impugned decision fails the duty to give reasons: it is unclear as to the factual and legal basis for revocation, cites inconsistent dates (March 2020, 16 October 2020, 30 November 2022), and does not state whether revocation was retrospective or prospective.
• The Minister failed to engage with substantive representations explaining the absence (COVID-19 restrictions, lockdowns, housing crisis, pregnancy and health, stranded children) and evidence of re-establishment in The State after return (tenancy, schooling, banking, welfare, employment).
• The finding that the family's "main centre of interest" was in The State B was inadequately identified and reasoned and did not address the evidence to the contrary.
• The Applicants further contended that remittal could produce benefit and that the futility argument was not established.

Respondent's Arguments

• Main limb: Continuity of residence under the Withdrawal Agreement is a cardinal condition; an absence exceeding the protective periods (in particular more than twelve consecutive months) breaks continuity such that a UK national falls outside the personal scope and any derived right of a family member is lost and cannot be revived by subsequent return.
• Alternate limb: The impugned decision contains adequate reasons taken as a whole; the applicable standard is one of minimum sufficiency and reasons can be discerned from the decision read in context.
• The Respondent argued futility: even if reasons were deficient, quashing would be pointless because the legal position (continuity broken) made revocation inevitable.

Table of Precedents Cited

Court's Reasoning and Analysis

The court applied established authorities on the duty to give reasons (Connelly; Balz) and examined the impugned decision in its entire context. It found that a primary legal rationale now relied upon by the Respondent—an interpretation of the Withdrawal Agreement making continuity of residence a disqualifying, irrevocable bar after an absence exceeding twelve months—was never disclosed in the contemporaneous decision-making process. The decision therefore failed the duty to give reasons because the principal reason for revocation was first revealed in litigation.

The court further identified conventional deficiencies in the impugned decision: internal inconsistency (three different dates identified as relevant without explanation), conflation of materially different factual findings (present non-exercise of rights versus never having exercised rights), and inadequate engagement with both the Applicants' explanations for the absence and the objective evidence of re-establishment in The State after return (tenancy, schooling, banking, welfare, employment). The court emphasised that the recital of evidence without assessment does not satisfy the duty to give reasons.

On the futility submission, the court applied H.A. and concluded that the Respondent had not discharged the onus of showing that remittal could not benefit the Applicants. The continuity argument involves contestable points of law and material factual questions that should be assessed by the designated decision-maker on reconsideration. The court also emphasised the public-law principle that a decision-maker may not, in litigation, supplant the contemporaneous reasons by advancing a new, dispositive rationale that was not disclosed when the decision was made.

Holding and Implications

CERTIORARI GRANTED; IMPUGNED DECISION QUASHED

Holding: The court quashed the Minister's impugned decision of 17 September 2024 on the ground that it did not comply with the duty to give adequate reasons and was further vitiated on conventional adequacy grounds.

Implications: The matter is remitted for reconsideration and a fresh decision to be reached containing an adequate, contemporaneous statement of reasons (direction pursuant to Order 84, rule 27(4) RSC). The court declined to refuse relief on the ground of futility. The court expressed a provisional view that the Applicants are entitled to costs against the Respondent in the usual manner, and reserved the final form of order and costs for further hearing.