B. -v- MJELR & Ors [2009] IEHC 447 (15 October 2009)

B. -v- MJELR & Ors [2009] IEHC 447 (15 October 2009)

Only residence in Ireland as a Union citizen in compliance with the conditions of Directive 2004/38/EC and the 2006 Regulations counts towards the five-year period required for permanent residence. Pre-accession residence as a non-EU national under domestic law does not qualify. The Minister's decision to exclude pre-accession years was correct in law.

Citation
[2009] IEHC 447
Parties
Applicant: I. B.; Respondents: Minister for Justice, Equality & Law Reform, Ireland and the Attorney General
Jurisdiction
Ireland
Judgment Date
15 October 2009
Procedural Posture
Judicial Review / Final Judgment
Outcome
application refused
Legal Topics
Permanent Residence Rights, EU Accession, Directive 2004/38/ec, Interpretation of National Regulations, Direct Effect of EU Law
Immigration Law European Union Law Administrative Law Permanent Residence Rights EU Accession Directive 2004/38/ec Interpretation of National Regulations Direct Effect of EU Law

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Parties

I. B.

Applicant

Minister for Justice, Equality & Law Reform, Ireland and the Attorney General

Respondents

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Whether pre-accession lawful residence counts towards the five-year period for permanent residence under the 2006 Regulations and Directive 2004/38/EC
  2. 2 Whether Article 16 of Directive 2004/38/EC has direct effect to include pre-accession residence
  3. 3 Whether Article 38(1) of the Europe Agreement or the Accession Treaty alters the calculation of qualifying residence

Ratio Decidendi

Only residence in Ireland as a Union citizen in compliance with the conditions of Directive 2004/38/EC and the 2006 Regulations counts towards the five-year period required for permanent residence. Pre-accession residence as a non-EU national under domestic law does not qualify. The Minister's decision to exclude pre-accession years was correct in law.

Court Disposition

application refused

Orders

  • Application for judicial review is rejected.