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2026 IEHC 351

APPROVED [2026] IEHC 351 THE HIGH COURT JUDICIAL REVIEW 2024 1559 JR BETWEEN TALAL TAHIR NADIA AKNAF APPLICANTS AND MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION RESPONDENT JUDGMENT of Mr Justice Garrett Simons delivered on 9 June 2026 INTRODUCTION

  1. This judgment concerns a challenge to a decision to revoke the residence card of a third-country national, that is, a national of a country outside the European Union. The residence card had initially been issued on the basis that the particular individual had a derived right of residence, under the Citizenship Directive (Directive 2004/38/EC), as the spouse of a UK national who was, at the time, an EU citizen. The residence card had been issued prior to the withdrawal of the United Kingdom from the European Union. NO REDACTION REQUIRED 2 WITHDRAWAL AGREEMENT / BREXIT
  2. To assist the reader in understanding the discussion which follows, it is necessary first to outline the legal framework governing the residence rights of UK nationals and their family members following the withdrawal of the United Kingdom from the European Union.
  3. The relevant rights are now governed by the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (“the Withdrawal Agreement”). The Withdrawal Agreement has been given effect in domestic law by the European Union (Withdrawal Agreement) (Citizens’ Rights) Regulations 2020 (S.I. No. 728 of 2020) (“the 2020 Regulations”). Those Regulations extend, with necessary modifications, relevant provisions of the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015) (“the 2015 Regulations”) to UK nationals and to their qualifying family members.
  4. The Wife is a third-country national spouse of a UK national. On the Applicants’ case, her position is protected by Article 10

(1)(e)(i) of the Withdrawal Agreement. That provision applies to core family members who resided in the host State in accordance with Union law before the end of the transition period, in their capacity as family members of a UK national exercising free movement rights, and who continued to reside there thereafter. In this context, Ireland is the “host State”. 5. Article 10 does not merely look to whether the relevant persons resided in the host State before the end of the transition period. It also requires that they “continue to reside” there thereafter. Article 11 provides that “continuity of 3 residence” for the purposes of Article 10 is not affected by the absences referred to in Article 15
(2). Article 15
(2), in turn, cross-refers to Article 16
(3)of the Citizenship Directive. The effect of these cross-references is to import, for the purposes of the concept of “continuity of residence” under the Withdrawal Agreement, the familiar rules under the Citizenship Directive governing permissible absences. 6. Relevantly, Article 16
(3)of the Citizenship Directive provides that continuity of residence is not affected by temporary absences not exceeding six months in a year, by absences of longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting abroad. The Minister’s argument is that, read with the personal-scope provisions of the Withdrawal Agreement, the express protection given to a single absence of twelve months supports the conclusion, by negative implication, that any absence exceeding twelve months must necessarily disrupt continuity.
  1. On the Minister’s analysis, a UK national who has been absent from the host State for more than twelve consecutive months ceases to satisfy the “continuity of residence” requirement under the Withdrawal Agreement. It is said to follow that once the UK national falls outside the personal scope of the regime, any derived right of residence enjoyed by a third-country national spouse falls away also. The culmination of the Minister’s argument is that once lost, a right of residence under the Withdrawal Agreement cannot be revived merely by a subsequent return to the Irish State. 4 PROCEDURAL HISTORY
  2. The applicants for judicial review are a married couple. For ease of exposition, I will refer to the individual applicants as “the Husband” and “the Wife”, respectively. They will be referred to collectively as “the Applicants” or “the Family”.
  3. The Applicants married in Morocco in August
  4. The Husband is a national of the United Kingdom. He came to the Irish State to take up employment here. The Wife, a national of Morocco, joined him here in November
  5. The Wife was subsequently issued with a residence card by the Minister. The residence card was issued on 9 November 2019 and was valid for a period of five years, i.e. until 8 November
  7. It should be explained that a residence card is declaratory of, rather than constitutive of, the Wife’s right of residence. The right of residence of a qualifying family member of an EU citizen arises by operation of EU law under the Citizenship Directive. It will be recalled that the right of residence had accrued prior to the withdrawal of the United Kingdom from the European Union and that the Husband was, accordingly, an EU citizen at the time.
  8. There is reference in some of the documentation to the Wife having been granted “permission to remain” by the Minister. This description is not, strictly speaking, correct. The notion of “permission to remain” is normally understood as referring to an immigration permission granted under section 4 of the Immigration Act
  9. The administrative endorsement “Stamp 4EUFam”, which appears in the documentation, should be understood as the registration of that EU-derived status, and not as a separate or independent source of right. 5
  10. It is common case that, in March 2020, the Husband and Wife and their minor children left the Irish State, and that they did not return permanently until 30 November
  11. This is a period of absence of some twenty months.
  12. The Minister notified the Wife of a proposal to revoke her residence card by letter dated 18 October
  13. The rationale for the proposal was summarised as follows: “It has come to the attention of the Minister that both you and the Union Citizen are no longer residing in the State. Information available to the Minister from the United Kingdom authorities shows that on 16/10/2020 you applied for permission to remain in the UK under the EU Exit Settlement Scheme. This leave to remain was granted until 16/02/
  14. The Minister is of the opinion that in order to submit this application, both you and the Union citizen would have been residing in the United Kingdom prior to the submission of your application. Furthermore, both you and the Union Citizen would have submitted documentation to evidence residence and exercise of rights in support of your application and this would call into question the validity of documentation you have submitted. It is further noted that you failed to notify the Minister of this important change in your circumstances, at that time, as you are required to do under Regulation 11
(2)of the Regulations. As the information available to the Minister shows you and the Union Citizen left the State on 16/10/2020, the Minister is now of the opinion that you ceased to derive a right of residence on 16/10/2020 when both you and the Union Citizen ceased to reside in the State. For the sake of clarity, the Minister is of the opinion that your residence card and permission to reside in the State ceased to be valid on 16/10/2020 when you left the State. In light of the information available, I am to advise that the Minister now proposes to revoke the Residence Card granted to you on 25/01/2017 (sic) in accordance with the provisions of Regulations 8 of the Free Movement of Persons Regulations 2015 as you no longer meet the criteria set out therein. It is further noted you have not advised this office of a change in your circumstances as you are required to do in accordance with the provisions of Regulation 11
(2)of the Regulations.” 6
  1. The reference to the Applicants having left the Irish State on 16 October 2020 is in error. This is the date of the Wife’s application under the EU Settlement Scheme, rather than the date of departure from the Irish State. The date given for the issuance of the residence card is also incorrect.
  2. The Husband made a submission dated 7 November 2022 on behalf of the Applicants. The submission drew attention to what were described as circumstances which had a “crucial impact” on the Family’s decisions and actions, namely the coronavirus pandemic, the complete lockdown of Ireland and the United Kingdom, the United Kingdom exiting the European Union, the accommodation crisis in Ireland, and the Wife’s health. The position advanced was that the Family had not intended to leave the Irish State permanently but had left for respite and in the expectation that they would continue to look for accommodation in Ireland.
  3. The Family had initially rented accommodation in County Wexford, where one of their children was born. In 2018, however, they were given notice to leave that accommodation. They were unable to secure another private rental property and approached the local authority for housing assistance. Although their application was accepted, the local authority was unable to offer accommodation; the Family were instead placed in emergency hotel accommodation. They remained in a hotel for approximately eleven months.
  4. Against that background, the Family first went to Morocco for a month, leaving three of the children with their grandmother. The Husband and Wife then returned to Ireland, but remained in hotel accommodation. The Husband stated that he thereafter decided to return to the United Kingdom for respite, while at the same time intending to look for a place to rent in Ireland. The Family arrived 7 in the United Kingdom on 16 March
  5. A few days later, the United Kingdom and Ireland went into lockdown. The Husband stated that, because of the lockdown, the children who had remained in Morocco were stranded there and he had to liaise with the British Embassy in Rabat to have them repatriated to the United Kingdom.
  6. The submission further stated that, while in the United Kingdom, the Wife became pregnant in May 2020, which was described as an unplanned pregnancy. The Husband said that, in circumstances where the Wife had entered the United Kingdom under EU Treaty rules, and where the transition period following the United Kingdom’s withdrawal from the European Union was ongoing, she was asked to apply under the EU Settlement Scheme in order to reside lawfully in the United Kingdom. The submission stated that this application was made because of the uncertainty caused by Covid-19, the continuing lockdown in Ireland, and the Wife’s health condition. It was not presented as an intention to re-establish the Family permanently in the United Kingdom.
  7. The submission contended that the Family had always maintained a link with Ireland. It stated that all of the Family’s belongings remained in storage in Newcastle, County Wicklow, and that they always intended to return to live in Ireland. While in the United Kingdom, the children did not attend school throughout the period and were home-schooled because the Family were conscious of their intention to return to Ireland. The Husband said that he did not commit to full-time employment in the United Kingdom because he was not seeking to re-establish himself there. Once private rental accommodation was secured in Ireland in November 2021, the Family returned. The Husband stated that, on return, he secured full-time employment as a heating and plumbing 8 engineer and that the children were enrolled in national school from December
  9. By decision dated 30 November 2022 (“the first-instance decision”), the Minister revoked the Wife’s residence card. The stated basis was that the Minister was not satisfied that the Husband was residing in the Irish State and exercising his residence rights in conformity with the Regulations. The firstinstance decision located the cessation of the relevant rights as having occurred on 16 October
  10. This is the date of the Wife’s application under the EU Settlement Scheme, rather than the date of departure from the Irish State.
  11. The Applicants exercised their right to seek a review of the first-instance decision. In doing so, they reiterated their explanation for the absence, insisting that they had never intended to remain outside the Irish State for as long as they did and that, but for the coronavirus pandemic, they would not have done so. Further material was furnished in respect of the Family’s circumstances following their return, including details of their residential tenancy, the enrolment of the children in school in the State, social welfare payments, banking records, and evidence of the Husband’s employment and periods of unemployment.
  12. By decision dated 17 September 2024 (“the impugned decision”), the Minister affirmed the revocation of the residence card. The content of the impugned decision is discussed under the next heading below.
  13. It should be recorded, for completeness, that the Wife made an application for a residence document on 27 December 2024, and that she was granted a temporary “Stamp 4” permission pending its determination. The application was refused at 9 first instance in August 2025, and a review of that refusal has not yet been determined. The fresh application is not the subject of these proceedings. IMPUGNED DECISION
  14. The impugned decision takes the form of a lengthy letter, running to some seven pages, signed by an official of the EU Treaty Rights Review Unit as the alter ego of the Minister pursuant to the Carltona principle.
  15. The decision opens by reciting the procedural history: the receipt of the request for review; the cessation, at the end of the transition period on 31 December 2020, of the entitlements under Directive 2004/38/EC insofar as it applied to family members of United Kingdom nationals; and the statutory framework under which the review was conducted.
  16. The decision then sets out, over several pages, a detailed recital of the evidence. It records the date of the Wife’s arrival in the State, the date of the marriage, and the grant of the residence card in November
  17. It rehearses, in considerable detail, the documentary material that had been furnished: the marriage certificate; the children’s details; correspondence from schools and from the local authority concerning the family’s period in emergency accommodation; the tenancy agreement and utility bills relied upon as evidence of residence following the return to the Irish State; and information obtained from the authorities of the United Kingdom. The latter included a chronology of the Wife’s immigration history in the United Kingdom, culminating in the grant to her, on 16 October 2020, of leave to remain under the EU Settlement Scheme, valid until February
  18. 10
  19. The decision turns next to the period of absence. It records that the family left the Irish State on or about 16 March 2020 and did not return until November
  20. It addresses the exemption provided by regulation 8
(5)(c) of the 2015 Regulations. That exemption preserves the validity of a residence card notwithstanding one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training. The decision observes that, notwithstanding that permitted absence of one year, the Wife had been absent for a period in excess of nineteen months. It is suggested that because the Wife did not become pregnant until after she had left the Irish State, the reason for her departure could not be characterised as one of pregnancy or childbirth, and that the exemption was accordingly not satisfied. The decision adds that there was, in any event, no record of the Husband exercising rights in the Irish State during
  2. The decision then incorporates, at length, the representations made by the Husband in his letter of 7 November 2022, quoting substantial passages verbatim. It recites his account of the accommodation crisis, the period in emergency accommodation, the decision to travel to the United Kingdom for respite, the intervention of the pandemic, the unplanned pregnancy, and the family’s asserted intention throughout to return to and reside in the Irish State.
  3. The decision next addresses what it describes as the family’s pattern of travel. It records that the family sailed from Pembroke to Rosslare on 30 November 2021, but observes that, after that date, the Wife continued to spend time in the United Kingdom, setting out a series of six journeys between Dublin and London in the first half of
  4. Although it acknowledges that the evidence shows time spent 11 both in the United Kingdom and in the State, the decision states: “the Minister is of the view that your main centre of interest is in the United Kingdom”.
  5. The decision also addresses, under a discrete heading, the activity of the Husband for the purposes of regulation 6
(3)of the 2015 Regulations. The decision recites information obtained from the Department of Social Protection: the Husband’s recorded earnings year by year (including some €27,089 in respect of 2022 and €26,279 in respect of 2023); his employment with a named company between August 2023 and January 2024; the confirmation by that employer that he had left voluntarily; and a series of social welfare claims. The decision records the Husband’s assertions that he had intended to resume study and complete a degree, and that he had been the subject of a conditional offer in respect of a course, together with the subsequent confirmation that he had not met the eligibility criteria and had not enrolled. Having set out that material, the decision then states as follows: “Having regard to the above, the Minister is not satisfied that the United Kingdom national in this case is or has been exercising his EU Treaty Rights in the State in accordance with Regulation 6
(3)of the Regulations of
  1. The right of a third country national family member to accompany or join an United Kingdom national in a host Member State is a derived right that depends on the United Kingdom national residing in the State in exercise of his or her Rights in accordance with the provisions of the Regulations. As the United Kingdom national in this case is not exercising his Rights in the State from March 2020 when you ceases to reside in the State, you do not have an entitlement to a derived right of residence from that time.”
  2. The decision concludes by stating that the Minister was not persuaded that the decision of 30 November 2022 should be overturned, that the Applicants had failed to establish that the deciding officer had erred in fact or in law, and that 12 appropriate procedures had been used and the correct interpretation of the Regulations applied.
  3. The decision closes by stating that the decision to revoke does not interfere with any rights the Wife may have under the Constitution of Ireland or under Article 8 of the European Convention on Human Rights. DUTY TO GIVE REASONS: PARTIES’ SUBMISSIONS
  4. The Applicants advance their challenge on a number of different grounds. It is proposed to address first the “adequacy of reasons” ground. This is because this ground, if well founded, is dispositive of the judicial review proceedings.
  5. The Applicants submit that the impugned decision is vitiated by a failure to provide a proper statement of reasons. They contend that, read as a whole, the decision permits neither the Applicants nor the court to understand with sufficient clarity the actual basis upon which the Minister affirmed the revocation of the Wife’s residence card.
  6. In particular, the Applicants say that the decision is “fundamentally unclear” as to the factual and legal basis for revocation. Different dates appear to be relied upon at different points: March 2020, 16 October 2020 and 30 November
  7. The Applicants contend that it is unclear when the alleged loss of entitlement occurred, why the residence card was revoked from 30 November 2022, and whether the revocation was being treated as retrospective or prospective.
  8. The Applicants also submit that the Minister failed to engage with the substance of the representations made in November 2022, including the explanation that the Family’s absence from the Irish State resulted from Covid-19 restrictions, 13 housing difficulties, pregnancy and related family circumstances, and was not an abandonment of residence in Ireland.
  9. A further complaint is made in respect of the finding that the Family’s “main centre of interest” was in the United Kingdom. The Applicants contend that this was a material conclusion, adverse to them, which had not been clearly identified as an issue in the revocation process and was not adequately reasoned in the impugned decision. They submit that the decision does not explain why the evidence of their return to Ireland, the residential tenancy, employment, social welfare engagement, banking, utility bills and the children’s schooling was insufficient to displace that conclusion.
  10. There are two limbs to the Minister’s response to the “adequacy of reasons” ground, as follows. (As discussed at paragraphs 66 to 83 below, the Minister also makes a related argument that the judicial review proceedings are futile).
  11. The first limb focuses on the fact that the United Kingdom is no longer a Member State of the European Union. The Applicants’ rights are now governed primarily by the provisions of the Withdrawal Agreement and the 2020 Regulations. It is submitted that continuity of residence is a “cardinal condition” of the Withdrawal Agreement regime. An absence from the Irish State exceeding twelve months is said to break the requisite continuity. It is contended that once continuity is broken, a UK national falls outside the personal scope of the 2020 Regulations, and any residence rights derived by family members from that UK national fall away. On the Minister’s case, such residence rights cannot be revived or regained merely by a subsequent return to the Irish State. The Minister further submits that this is not an ex post facto rationalisation: the Applicants’ absence from the State, and the consequent loss of continuity of 14 residence, are said to have formed part of the reasoning of the impugned decision. It is said that the Minister is entitled to rely on the break of continuity of residence both as part of the reasons as discerned on the face of the decision and by means of the discretionary bar to relief of futility.
  12. This argument is premised on the wording of the relevant provisions of the Withdrawal Agreement. The wording speaks of family members of UK nationals who “resided in the host State in accordance with Union law before the end of the transition period and continue to reside there thereafter”. The transition period expired on 31 December
  13. As of this date, the Applicants were living in the United Kingdom and did not return to the Irish State until November
  14. On the Minister’s analysis, the Applicants’ absence for a period of more than twelve months from March 2020 resulted in the loss of rights under the Withdrawal Agreement.
  15. The second limb of the response is premised on conventional “adequacy of reasons” arguments. It is submitted that the impugned decision contains adequate and intelligible reasons. The applicable standard, it is said, is one of minimum sufficiency rather than perfection: reasons must enable the person affected to understand why the decision was made and permit effective judicial review, but the reasons need not be elaborate or expressed in any particular form. It is said that the case law indicates that reasons may be discerned from the decision read in its full context and by reference to the process as a whole. 15 DUTY TO GIVE REASONS: DISCUSSION
  16. The nature of the duty to give reasons has been summarised by the Supreme Court in Connelly v. An Bord Pleanála [2018] IESC 31, [2021] 2 IR 752 as follows (at paragraph 46 of the reported judgment): “Therefore, it seems to me that it is possible to identify two separate but closely related requirements regarding the adequacy of any reasons given by a decision-maker. First, any person affected by a decision is at least entitled to know in general terms why the decision was made. This requirement derives from the obligation to be fair to individuals affected by binding decisions and also contributes to transparency. Second, a person is entitled to have enough information to consider whether they can or should seek to avail of any appeal or to bring judicial review of a decision. Closely related to this latter requirement, it also appears from the case law that the reasons provided must be such as to allow a court hearing an appeal from or reviewing a decision to actually engage properly in such an appeal or review.”
  17. A discursive decision will not necessarily be required. The position is put as follows in Connelly v. An Bord Pleanála (at paragraph 84): “There is a middle ground between the sort of broad discursive consideration which might be found in the judgment of a court, on the one hand, and an entirely perfunctory statement that, having regard to a series of factors taken into account, the decision goes one way or the other. There is at least an obligation on the part of decisionmakers to move into that middle ground, although precisely how far will depend on the nature of the questions which the decision-maker had to answer before coming to a conclusion.”
  18. A decision-maker is required to engage with at least the principal submissions made by a party. The position is put as follows in Balz v. An Bord Pleanála [2019] IESC 90, [2023] 3 IR 751, [2020] 1 ILRM 367 (at paragraph 57): “[…] It is a basic element of any decision-making affecting the public that relevant submissions should be addressed and an explanation given why they are not accepted, if indeed that is the case. This is fundamental not just to the law, but also to the trust which members of the public are required to 16 have in decision making institutions if the individuals concerned, and the public more generally, are to be expected to accept decisions with which, in some cases, they may profoundly disagree, and with whose consequences they may have to live.”
  19. These, then, are the principles which I must apply in determining whether the impugned decision, when read in conjunction with the surrounding documentation, discloses an adequate statement of reasons.
  20. The striking feature of the present case is that the primary reason now relied upon for the revocation of the residence card is one which never featured as part of the revocation process. That reason is premised on the wording of the relevant provisions of the Withdrawal Agreement. It is said that continuity of residence is a “cardinal condition” under the Withdrawal Agreement. Attention is drawn to the fact that the Applicants were not resident in the Irish State at the end of the transition period. It is further said that even if the twelve-month period of grace were applicable notwithstanding that the pregnancy occurred after the Family had departed, it would not avail them in circumstances where the Applicants were absent for a period of twenty months.
  21. It is unnecessary for this court to express any concluded view on the correctness or otherwise of this argument on the interpretation of the Withdrawal Agreement. Even allowing that it might be correct as a matter of substantive law, the argument does not answer the “adequacy of reasons” ground. On the contrary, the argument proves too much. It confirms that the impugned decision failed to disclose all of the reasons for the revocation of the residence card. In particular, it did not disclose what the court is now told was the primary reason for revocation. 17
  22. Counsel for the Minister submitted that the above argument as to the irrevocable loss of rights under the Withdrawal Agreement is, at least, implicit in the reasoning of the impugned decision. Counsel emphasised that the Applicants’ period of absence from the Irish State is referred to at a number of points in the decision.
  23. Although the submission was advanced with skill, I cannot accept it. There is nothing in the seven-page decision from which it can reasonably be inferred that the decision-maker attached weight to the language of the Withdrawal Agreement. The decision makes no reference to the concept of “continuity of residence” as defined by cross-reference to the Citizenship Directive. Indeed, there is nothing in the wording of the operative part of the decision which indicates that the decision-maker was approaching the case in a manner different from a case which concerned the rights of an EU citizen from any of the remaining Member States.
  24. There is nothing in the decision-maker’s analysis which is expressly premised on the fact that the UK national ceased to be an EU citizen from 31 December
  25. The reasoning is, instead, framed in terms which could equally have been applied to the third-country national spouse of say, for example, a Portuguese national. This is illustrated by the decision-maker’s reliance on the exemption in regulation 8
(5)(c) of the 2015 Regulations, rather than on any distinct provision of the 2020 Regulations.
  1. The decision does not state that an absence of more than twelve months operated, of itself, as an irrevocable statutory bar, irrespective of any subsequent residence or activity. Nor does the decision explain that the revocation was being made on the basis that rights under the Withdrawal Agreement had been lost by reason of 18 the Family’s absence from the State for a period in excess of twelve months, which period straddled the date of the expiration of the transition period. The decision therefore cannot bear the interpretative weight which the Minister seeks to place upon it.
  2. The belated disclosure of what the court is now told is the primary reason for the decision involves a breach of the duty to give reasons. One of the principal purposes served by the duty to give reasons is to allow the recipient to understand the decision and to assess whether there might be good grounds for seeking to challenge it. This purpose is frustrated unless the statement of reasons is contemporaneous with the decision. Here, the primary reason animating the revocation of the residence card has only been disclosed subsequently, in response to the judicial review proceedings. It follows, therefore, that the impugned decision does not comply with the duty to give reasons.
  3. For completeness, the impugned decision is also vitiated on conventional “adequacy of reasons” grounds, as follows.
  4. The decision is internally inconsistent and fails to identify the event which supposedly resulted in the loss of the derived right of residence. The firstinstance decision of 30 November 2022 had located the loss as having occurred on 16 October
  5. That was the date of the Wife’s application under the EU Settlement Scheme, not the date upon which the Family had left the Irish State. The impugned decision, by contrast, finds that the Husband was not exercising his rights from a much earlier date, March
  6. The operative part of the impugned decision then revokes the residence card with effect from a different date entirely, 30 November
  7. 19
  8. A decision which offers three different dates, without explaining the relationship between them, leaves the reader unable to ascertain the precise basis upon which the decision-maker determined the matter.
  9. The impugned decision says that the Minister was “not satisfied that the United Kingdom national … is or has been exercising his EU Treaty Rights in the State”. This composite formulation conflates two materially different findings: a finding that the Husband is not presently exercising such rights, and a finding that he has never done so. The two are not the same, and they do not have the same legal consequences.
  10. The difficulty is compounded by the fact that the decision itself recites evidence which appears to be inconsistent with the more absolute of the two findings. The decision records that the Husband was in employment after the family’s return to the Irish State. The decision recites earnings of some €27,089 in respect of the year 2022 and €26,279 in respect of the year 2023, together with a period of employment with a named company. If those matters were accepted—and the decision does not say that they were not—it is not apparent how the Minister could be satisfied that the Husband had at no time exercised Treaty rights in the Irish State.
  11. If the derived right ceased in March 2020, and was incapable of revival, then the detailed assessment of the Husband’s employment in the years 2021 to 2024 was beside the point. If, on the other hand, that later activity fell to be assessed—as the decision appears to assess it—then the right cannot have been irretrievably lost in March
  12. The decision does not indicate which of these two routes it travels, nor whether each is intended to stand alone. 20
  13. There is a further and distinct respect in which the impugned decision falls short of the requisite standard of reasons. The case advanced by the Applicants did not rest on bare assertion. It was supported, on the one hand, by a detailed account of the exceptional circumstances said to explain the absence from the Irish State, and, on the other, by a body of evidence directed to establishing that the Family had resumed and maintained genuine residence in the Irish State from the end of November
  14. The duty identified in Balz v. An Bord Pleanála (cited above) required the decision-maker to engage with the substance of that case, and to explain why, if it be so, it was not accepted. The impugned decision does not do so. The deficiency in the statement of reasons is illustrated by the following examples.
  15. The first illustration concerns the special circumstances relied upon to explain the absence. The Family did not contend merely that they had been away; they advanced specific matters, each capable of bearing on whether the absence was a voluntary abandonment of residence or an involuntary interruption of it. They explained that they had lost their private rental accommodation and, being unable to secure alternative private accommodation, had spent some eleven months in emergency hotel accommodation provided by the local authority before travelling to the United Kingdom for temporary respite. They explained that, within days of that departure, both States entered pandemic lockdown, so that what had been intended as a short absence was prolonged by public-health measures outside their control. They explained that several of the children had been left with their grandmother in Morocco and had become stranded there by travel restrictions, requiring the intervention of the British Embassy in Rabat to repatriate them. They explained that the Wife’s application under the EU 21 Settlement Scheme had been made only to regularise her position during that period of uncertainty. They also pointed to the retention of the Family’s belongings in storage in Wicklow as evidence of a continuing intention to return. Not one of these matters is properly engaged with in the impugned decision. The decision recites the Husband’s letter at length, but it nowhere grapples with the contention that the absence was involuntary, nor does it explain why, if these circumstances were rejected or regarded as immaterial, that was so. The reader is left unable to tell whether the decision-maker disbelieved the account, considered it irrelevant, or simply overlooked it.
  16. The second illustration concerns the evidence of continued residence following the return to Ireland. That evidence was both specific and capable of objective verification. It comprised, in particular, a residential tenancy agreement in respect of private rental accommodation in the State; utility bills and bank statements, in joint names, spanning the period following the return; documentary evidence of the enrolment and continued attendance of the children at a named primary school in the Irish State; records of the Family’s engagement with the Department of Social Protection, including child benefit and other payments referable to residence in the Irish State; and evidence of the Husband’s employment with employers within the Irish State. Taken together, this material was directed to the proposition that the Family’s daily life—their home, their children’s schooling, their banking, and their dealings with the organs of the State—was, from late 2021, located in Ireland. It was the answer the Applicants sought to give to the Minister’s concern that their centre of interest lay elsewhere.
  17. The difficulty is that the impugned decision does no more than recite this material. Each category of evidence is noted; none is assessed. The decision 22 sets out the tenancy, the utility bills, the bank statements, the schooling and the welfare payments, and then passes on, without indicating what weight, if any, was attached to them, or why they were considered insufficient to establish residence in the Irish State following the Family’s return in November
  19. The recital of evidence is not, of itself, the giving of reasons. It is one thing to demonstrate that material was before the decision-maker; it is another to explain how that material was evaluated and why it did not avail the party who relied upon it.
  20. This deficiency is brought into sharp focus by the finding that the Family’s “main centre of interest is in the United Kingdom”. That conclusion is stated, but it is not reasoned. The decision arrives at it immediately after setting out a schedule of six journeys made between Dublin and London in the first half of
  21. But those journeys, on their face, are as consistent with residence in the State (from which the traveller departs and to which the traveller returns) as with residence outside it. The decision does not explain how the travel pattern was understood to support the conclusion drawn, nor, more fundamentally, does it explain why that travel outweighed the tenancy, the schooling, the banking and the welfare evidence pointing the other way. The reader is left to infer that the decisionmaker preferred one body of evidence to another, but is given no reason for the preference.
  22. The Applicants were entitled to know not merely that their evidence of continued residence had been received, but why it was rejected. A decision which lists the factors relied upon and then announces a conclusion contrary to them, without traversing the ground between, does not occupy the “middle ground” identified in Connelly v. An Bord Pleanála (cited above) as the minimum required of an 23 administrative decision-maker. It leaves the affected person unable to understand why the case which they made was not accepted, and it leaves the court of judicial review unable to assess whether the relevant considerations were lawfully weighed. WHETHER RELIEF SHOULD BE REFUSED AS FUTILE
  23. The Minister submits that, even if the reasons given in the impugned decision are held to be inadequate, relief should nevertheless be refused in the exercise of the court’s discretion on the ground of futility. This submission is advanced on the premise that the Applicants’ absence from the Irish State for a period in excess of twelve months precludes the Husband from satisfying the “continuity of residence” requirement under the Withdrawal Agreement, with the consequence—on the Minister’s analysis—that the Wife’s derived right of residence falls away. It follows, the Minister says, that revocation of the residence card was the only lawful outcome, and that no useful purpose would be served by quashing the decision and remitting the matter for reconsideration.
  24. It is salutary to consider the wider implications of this submission. This court has found that the decision to revoke the residence card is invalid because the decision-maker failed to comply with the duty to state adequate reasons. The Minister nevertheless invites the court to refuse to set aside the invalid decision. The justification offered for this invitation is that there is a previously undisclosed reason which, it is now said, made the revocation of the residence card inevitable. That reason concerns the interpretation of the concept of “continuity of residence” for the purposes of the Withdrawal Agreement: see paragraphs 2 to 7 above. The court is thus asked to determine the merits of the 24 Minister’s contended-for interpretation now, notwithstanding that this issue was not put to the Applicants during the revocation process and does not feature as part of the stated reasons for the decision.
  25. The leading judgment on the refusal of relief in judicial review proceedings on the ground of futility is H.A. v. Minister for Justice [2022] IECA
  26. There, the Court of Appeal accepted that there may be cases where—notwithstanding an error of law in the decision-making process—certiorari ought not to be granted on the ground that no benefit will or could accrue to the applicant for judicial review. Such a case may arise where the legal position is such that the decisionmaker could never properly make a decision in favour of the applicant.
  27. Donnelly J., delivering the judgment of the Court of Appeal, emphasised that the discretion to refuse relief should be exercised with discernible caution. Having determined that a decision is vitiated by error of law, relief should not be refused on the ground of futility unless it is very clear that the grant of relief would be incapable of benefiting the applicant. The onus of establishing that remains on the party asserting futility. The court must also be mindful that it is the designated decision-maker, and not the court of judicial review, which has been entrusted under statute with the relevant decision-making function. If it is arguable that the applicant may obtain a benefit on reconsideration by the decision-maker, the low threshold for granting relief will have been met.
  28. The Court of Appeal further explained that where issues of fact requiring adjudication are material to success or failure, their resolution must be left to the statutory decision-maker. Where the issue is one of law alone, it may be appropriate in some cases for the court to refuse relief, but only if it is clear that fuller argument and greater thought are not required for a better determination 25 of the issue. The overriding consideration is the achievement of a just result, whether that is to grant or refuse certiorari.
  29. The reasoning in H.A. v. Minister for Justice has a direct resonance with the present proceedings. The Court of Appeal had acknowledged that the Minister’s futility argument in H.A. had “a certain logic and cogency”, but that was not enough. The Court of Appeal held that the Minister had not discharged the onus of showing that it was very clear that the applicant had no case. Donnelly J. also observed, in substance, that a point not raised is a point not decided, and that once the applicant’s argument reaches the level of arguability, it is neither appropriate nor necessary for the court to engage further in the merits of the competing arguments.
  30. The same logic applies in the present case. The Minister’s interpretation of the Withdrawal Agreement may ultimately be shown to be correct, but it is not so self-evidently correct, nor so authoritatively settled, that this court should refuse relief on the basis that remittal and reconsideration must necessarily be futile. The effect of the cross-reference in the Withdrawal Agreement to the continuity rules under the Citizenship Directive, and, in particular, the question of whether an absence exceeding twelve months necessarily and irrevocably breaks continuity for the purposes of Article 10, has not been authoritatively determined by the CJEU. It is a contestable question of law.
  31. Nor can it be said that the Applicants have no arguable answer to the Minister’s continuity point. The Minister’s argument depends upon a very particular interpretation of Article 11 of the Withdrawal Agreement, Article 15
(2)of that Agreement, and Article 16
(3)of the Citizenship Directive. Article 16
(3)identifies certain absences which do not affect continuity. The Minister says that 26 it follows, by necessary implication, that an absence in excess of those limits irrevocably breaks continuity. That construction may ultimately be correct, but it is not inevitable. The provision is framed as a protective rule identifying absences which are to be disregarded. Whether, and in what circumstances, an absence outside those limits destroys the protected status conferred by Article 10 is not a point which should be determined for the first time by the court of judicial review under the rubric of futility.
  1. Moreover, even if the Minister’s construction is correct in principle, factual and evaluative questions may arise as to its application in practice. The Applicants’ case was that their absence was not a voluntary abandonment of residence in the Irish State. They relied on housing difficulties, emergency accommodation, a departure for respite, the onset of pandemic lockdowns shortly thereafter, the fact that some of the children were stranded in Morocco, the Wife’s pregnancy and health circumstances, the application under the EU Settlement Scheme, and the retention of the Family’s belongings in storage in Ireland as evidence of an intention to return. Those matters may or may not ultimately be sufficient to answer the “continuity of residence” point, but they are not self-evidently irrelevant. They call for factual assessment by the decision-maker in light of the legal test which the Minister now says is decisive.
  2. In particular, it may be necessary to determine whether the Family’s absence is properly characterised as a voluntary interruption of residence, or, alternatively, as an absence prolonged by exceptional circumstances outside their control. It may also be necessary to consider whether the reason for the absence must be assessed solely by reference to the original reason for departure, or whether circumstances arising during the absence—such as pregnancy, childbirth, health 27 concerns, pandemic restrictions and the practical position of the children—are capable of bearing on the analysis. These are matters involving fact, evaluation and the application of law to fact. They were not determined in the impugned decision by reference to the legal rationale now advanced.
  3. There is a further possible issue as to the legal significance of the Applicants’ subsequent return and re-establishment in the Irish State. The Minister says that, once continuity was broken, the right could not be revived by a later return. The Applicants might answer that the alleged irrevocability of the loss is itself part of the contested interpretation of the Withdrawal Agreement. If subsequent residence is legally relevant, then the evidence of the residential tenancy, the enrolment of the children in school, utility bills, banking records, social welfare engagement and the Husband’s employment would require assessment. The impugned decision recites much of this material but does not explain its legal significance.
  4. In summary, this is not a case in which the court can say that there is truly no basis upon which the decision-maker could reach a different conclusion. At a minimum, the Applicants have an arguable case to make on remittal and reconsideration. Applying the approach in H.A. v. Minister for Justice, that is sufficient to defeat the plea of futility. It is neither appropriate nor necessary for this court to adjudicate upon the merits of the Minister’s interpretation of the Withdrawal Agreement in order to determine whether relief by way of judicial review should be refused.
  5. There is a further and related rationale which militates against refusing relief on discretionary grounds in this case. To permit a decision-maker to defend judicial review proceedings by introducing an entirely new rationale, never disclosed 28 when the decision was made, would undermine the discipline on which the integrity of administrative decision-making depends. The duty to give contemporaneous reasons is no mere formality. It is the mechanism by which the decision-making process is made amenable to the High Court’s supervisory jurisdiction. This is achieved by enabling the recipient of the decision to understand why the decision went against them, and to assess whether to challenge the decision. It also enables the court of judicial review to perform its supervisory function by reference to the reasoning disclosed by the decisionmaker.
  6. If the respondent in judicial review proceedings were permitted to offer, as part of its opposition to the proceedings, a fresh and better reason for maintaining an otherwise invalid decision, the duty to give reasons would be defeated. The contemporaneous statement of reasons would cease to be the thing under review. The applicant for judicial review would, instead, be required to meet a case different from that disclosed in the impugned decision, and the court of judicial review would be drawn into adjudicating, for the first time and as a matter of original jurisdiction, upon a question which the decision-maker never expressly addressed in its decision. That would risk converting the supervisory role of the court of judicial review into an appellate one.
  7. A further way of testing the futility argument in this specific case is to consider the relative prejudice to the parties. The prejudice to the Minister in granting relief and making an order for remittal is insubstantial. It consists of the minor inconvenience of having to reconsider the revocation process and to make a fresh decision, with proper reasons, in circumstances where the Minister considers that exercise to be pointless. By contrast, the prejudice to the Applicants if relief 29 were refused would be far more substantial. They would be left bound by an invalid decision, on the basis of a legal rationale which was not disclosed to them when the decision was made and which they had no opportunity to address in the administrative process.
  8. The wider, systemic implications are also material. If relief were readily refused on the basis of a rationale supplied only in litigation, the court of judicial review would be validating a decision by reference to reasons other than those disclosed. This would weaken the discipline imposed by the duty to give contemporaneous reasons. There would be little incentive for a decision-maker to take the time and trouble to provide a proper statement of reasons contemporaneously were it permissible to disclose a different—and better—rationale for the first time in opposition to judicial review proceedings.
  9. The absence of an incentive would undermine the quality of decision-making generally. The exercise of formulating a statement of reasons introduces discipline. It requires the decision-maker to identify the legal test being applied, to confront the material evidence, and to ask whether their provisional conclusion truly follows from the facts found. This discipline may reveal a gap in the initial reasoning, a matter overlooked, or an assumption which cannot be sustained. This may lead to the decision-maker reaching a different decision from that originally contemplated. Put shortly, the exercise of formulating a statement of reasons may affect not only the form of the decision, but may change the very outcome of the decision-making process for the better.
  10. In summary, this is not an appropriate case in which to refuse relief on the ground of futility. The Minister has not established that it is very clear that a remittal and reconsideration could not benefit the Applicants. The Applicants’ position 30 reaches at least the level of arguability, in the sense that the term is used in H.A. v. Minister for Justice. The impugned decision will, therefore, be quashed and the matter remitted for reconsideration. CONCLUSION AND PROPOSED FORM OF ORDER
  11. The impugned decision does not comply with the duty to give reasons. The primary reason for the revocation of the residence card has only been disclosed belatedly, in response to the judicial review proceedings. (Paragraphs 46 to 52 above). In addition, the decision is invalid on conventional “adequacy of reasons” grounds. (Paragraphs 53 to 65 above).
  12. This is not an appropriate case in which to refuse relief on the ground of futility. The Minister has not established that it is very clear that a remittal and reconsideration could not benefit the Applicants. (Paragraphs 66 to 83 above).
  13. Accordingly, I propose to make an order of certiorari quashing the decision of 17 September
  14. I also propose to make a direction, pursuant to Order 84, rule 27
(4)RSC, that the matter of the revocation of the residence card be reconsidered and a fresh decision be reached which contains an adequate statement of reasons.
  1. As to legal costs, my provisional view is that the Applicants, having been entirely successful in having the impugned decision quashed, are entitled to recover their costs as against the Minister in accordance with the default position under section 169 of the Legal Services Regulation Act
  3. I will hear the parties further on the final form of order and on costs. The matter will be listed before me on 2 July
  4. If that date does not suit the parties, they should notify the Registrar with suggested alternative dates. 31 Appearances Anthony Hanrahan SC and Shannon Haynes for the Applicants instructed by Sinnott Solicitors David Leonard for the Respondent instructed by the Chief State Solicitor

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AI explanation based on the official legal text. Indicative, not a substitute for legal advice.