S v Governor of Midlands Prison [2019] IESC 37 (27 May 2019)

S v Governor of Midlands Prison [2019] IESC 37 (27 May 2019)

The Supreme Court held that the plain wording of Regulation 7(6) of the European Union (Free Movement of Persons) Regulations 2015 grants an applicant the right to remain in the State pending a decision on a residence card application, without any requirement for a preliminary establishment of qualifying family member status. The insertion of a two-stage process is not supported by the text of the Regulations or the Directive. Therefore, the applicant's arrest while his application was pending was unlawful.

Citation
[2019] IESC 37
Parties
Applicant/appellant: SS (Pakistan); Respondent/respondent: The Governor of the Midlands Prison
Jurisdiction
Ireland
Judgment Date
27 May 2019
Procedural Posture
Habeas Corpus (article 40.4 of the Constitution) / Supreme Court Appeal From Court of Appeal and High Court
Outcome
Appeal allowed
Legal Topics
Deportation, Residence Rights of Family Members, Interpretation of EU Directives, Lawful Detention, Transposition of EU Law
Immigration Law Constitutional Law European Union Law Deportation Residence Rights of Family Members Interpretation of EU Directives Lawful Detention Transposition of EU Law

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Parties

SS (Pakistan)

Applicant/appellant

The Governor of the Midlands Prison

Respondent/respondent

Procedural Posture

Habeas Corpus (article 40.4 of the Constitution) / Supreme Court Appeal From Court of Appeal and High Court

Legal Issues

  1. 1 Whether the applicant was in lawful custody at the time of arrest pursuant to a deportation order while a residence card application was pending under the European Union (Free Movement of Persons) Regulations 2015.
  2. 2 Whether the Regulations require a two-stage procedure (prima facie case followed by substantive assessment) before lawful residence is conferred pending a decision.

Ratio Decidendi

The Supreme Court held that the plain wording of Regulation 7(6) of the European Union (Free Movement of Persons) Regulations 2015 grants an applicant the right to remain in the State pending a decision on a residence card application, without any requirement for a preliminary establishment of qualifying family member status. The insertion of a two-stage process is not supported by the text of the Regulations or the Directive. Therefore, the applicant's arrest while his application was pending was unlawful.

Court Disposition

Appeal allowed

Orders

  • Declaration that the applicant's arrest was unlawful and he was not detained in accordance with law at the date of the Article 40 application.