Supreme Court asks EU court to decide issues affecting free movement rights

The Supreme Court is to ask the Court of Justice of the EU (CJEU) to decide important issues concerning who is a permitted member of a “household” of an EU citizen for the purpose of exercising free movement rights.

The five-judge court said on Monday it would make that reference in an appeal by Asif Ali, a 34-year-old native of Pakistan, and his first cousin, Seheharyar Rahim Subhan (42), also a native of Pakistan, who became a naturalised UK citizen in 2013.

The proceedings concern Mr Ali’s entitlement to move from the UK to Ireland with Mr Subhan, who is self-employed here. Mr Ali claims, during his childhood, he and Mr Subhan lived in a family compound of two or more families in Pakistan and later, when they were both in England, had joint tenancy of a house.

It is claimed, some months before Mr Ali’s UK study visa expired, Mr Subhan moved to Ireland and, after expiry of the visa, Mr Ali, an economics graduate, followed him and sought residency on the basis of accompanying an EU citizen as a member of his household.

Both men took legal proceedings after the Minister for Justice refused Mr Ali’s application for residency in 2015 on grounds, inter alia, there was unsatisfactory evidence Mr Ali was a family member of an EU citizen or to prove Mr Subhan’s business was actively trading in the State.

Both men argued a combination of factors, including their living under the same roof and Mr Ali receiving a level of financial assistance from his cousin, constituted Mr Ali a member of Mr Subhan’s household. The State disputed that on grounds including that house-sharing and visas are finite and maintained it was only when Mr Ali’s UK visa expired he came to Ireland, not because of some kind of interdependency,

The five-judge Supreme Court agreed to hear a further appeal after the Court of Appeal dismissed their challenge. The appeal centred on the meaning of what it is to be a member of an EU citizen’s household as a matter of Irish and EU law and on the definition of a “permitted family member” for the purpose of the relevant free movement directive and regulations.

Giving the court’s judgment on Monday, Mr Justice Peter Charleton said the determination of that issue required the court to make a reference to the CJEU.

This is not a case where the Supreme Court, as a court of final appeal, can decide the meaning of who is a member of the household of an EU citizen such that, when the citizen moves from one country to another, consideration should be given to particular factors in defining or describing the concept of household. Since the directive applies across the EU, it is desirable that a uniform definition, or certainly a uniform set of applicable criteria, should be set by the CJEU, he said.

He rejected another ground of appeal concerning the proper approach to be taken by a judge when faced with an argument that the English or Irish version of EU legislation may be informed by reading that text in another official language of the EU.