The Supreme Court has referred two questions to the Court of Justice of the European Union (CJEU) concerning the interpretation of Article 35 of the Citizenship Directive (Directive 2004/38/EC) in the context of a fraudulent application for a permanent residence card.
Delivering the judgment, Chief Justice Donal O’Donnell noted that fraud is a significant consideration in immigration matters and that an authoritative interpretation of Article 35 is necessary, given the absence of CJEU case law on the issue.
The appellant in this case, a Pakistani national, arrived in Ireland on a student visa in 2004 and married a Hungarian national in 2011, subsequently obtaining a residence card. In May 2016, he applied for a permanent residence card on the basis of five years of legal residence with his EU spouse, as provided under Article 16(2) of the Directive.
The appellant submitted invoices purporting to show his wife’s self-employment as a childminder. However, it was later discovered that his wife had left Ireland in January 2016 and the invoices were fraudulent. A permanent residence card was initially granted in July 2016 but later revoked when the fraud came to light. A review confirmed the revocation on the basis that the appellant had knowingly submitted false documents and his wife had not exercised her free movement rights for the requisite period.
High Court and Court of Appeal
The appellant challenged the decision through judicial review, arguing that the revocation should have considered personal circumstances such as length of residence. The High Court ruled that an individualised proportionality assessment was required under the Directive, but the Court of Appeal disagreed. It held that while decisions must be proportionate to the fraud, there is no requirement for a separate assessment of personal circumstances where the right was obtained by deception.
Supreme Court and CJEU Reference
The Supreme Court agreed that the central issue was the proper interpretation of Article 35 of the Citizenship Directive, which permits member states to revoke rights conferred by the Directive in cases of fraud, provided the measure is proportionate and subject to procedural safeguards.
The Court distinguished between proportionality as it relates to the seriousness of the fraud, and the separate consideration of personal circumstances under Articles 27 and 28 of the Directive, which apply to public policy and security expulsions. The Court reasoned that where rights are obtained by fraud, personal circumstances such as length of residence or integration into the community are irrelevant to the revocation decision, provided the measure is proportionate to the fraud itself.
Acknowledging the ambiguity of the Directive and the lack of CJEU authority, the Court referred two questions to the CJEU:
May a host state revoke a permanent residence card solely on the ground that the applicant obtained it through fraudulent documentation which materially influenced the decision?
Alternatively, does Article 35 require an individualised assessment of the potential impact of revocation on the applicant?