Opinion of the Advocate General — ECLI:EU:C:2025:734
Date: 2025-09-25
Language of the case: English

summary of the history on the file including the claim that 
the EU citizen spouse had been employed in different positions between 2009 and 2013 
when applications for residency were made. No reference was made, however, to the record 
of her PRSI contributions during this period or the cumulative duration of these periods of 
employment. It is recorded that she was in receipt of Jobseeker’s Allowance between 
September, 2013 and September, 2017 (such that it appears she was in receipt of Jobseeker’s 
Allowance when the divorce proceedings were initiated in June, 2014). The terms of 
Regulation 6(3 )(c)(i) and (ii) of the 2015 Regulations were referred to but the decision maker
then states: 
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“In this case, there is no information on file in regard to the circumstances of the 
EU citizen's departure from her previous employment, whether that was voluntary 
or involuntary. Furthermore, there is nothing on file to suggest that [name of EU 
citizen] had been in employment for more than one year or had been on a fixed- 
term contract of less than one year prior to her registration with DEASP. Indeed, 
DEASP information on file indicates that the EU citizen was in employment for just 
37 weeks in 2013 and Evo weeks in 2014, which is less than the one-year period set 
out in the Regulations. As such, I find that the Union citizen in this case was not 
exercising her EU Treaty Rights through involuntary unemployment in 2014, the 
year in which divorce proceedings were initiated and finalised. "
24. The record of the decision continues:
“Although it is acknowledged that the EU citizen was in receipt of benefit payments 
in 2014, the Minister is not bound by any determination of the Department of 
Social Protection, and the continued payment of social welfare payments to the 
Union citizen is not determinative of the EU Treaty Rights matter before the 
Minister. "
25. It was concluded with reference to retained rights following divorce as provided for in 
Regulation 10(2) of the 2015 Regulations as follows:
“As it has been found that the EU citizen in this case was not exercising her Treaty 
Rights in the State on the date that divorce proceedings were initiated, or on the 
date upon which they were finalised, this application does not conform with this
Regulation. " 
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26. From the record of the decision, it appears that the decision was based on a conclusion 
that at the time of the initiation of the divorce proceedings the Applicant’s EU citizen spouse 
was not exercising her EU Treaty rights because she had not been working for a period of 
twelve months when divorce proceedings were initiated calculating that 37 weeks in 2013 
and two weeks in 2014 did not amount to a year as considered to be necessary under the 
Regulations.
27. By letter dated the 22nd of November, 2021, the Applicant was informed of the decision 
following review. The basis for the decision (as recorded in the letter )was that there was no 
information on file regarding the circumstances of her departure from her previous 
employment - whether that was voluntary or involuntary - and nothing on file to suggest 
that she had been in employment for more than one year or had been on a fixed term contract 
of less than one year prior to her registration with DEASP (based on her employment of 37 
weeks in 2013 and 2 weeks in 2014). It was concluded that she was not exercising her EU 
Treaty Rights through involuntary unemployment in the year 2014, the year in which divorce 
proceedings were initiated and finalised because her period of unemployment was not 
preceded by twelve months working. The letter stated that although it was acknowledged 
that the EU citizen was in receipt of benefit payments in 2014, the Minister is not bound by 
any determination of the DEASP and the continued payment of social welfare payments to 
the Union citizen is not determinative of the EU Treaty rights matter before the Respondent.
28. No consideration is recorded anywhere in the record of the decision as having been 
given to the question of whether the EU citizen might have worked for in excess of one year 
during the period of her residence in the State prior to September, 2013 when she first 
received Jobseeker’s Allowance and no account was taken of these earlier periods of activity 
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in the State in determining whether the EU citizen had been exercising EU Treaty Rights in 
the State at the date of initiation of the divorce proceedings.”
(ii) Issues of European law necessary for determination of this appeal
29. The 2004 Directive was implemented in Ireland by the enactment of the European 
Communities (Free Movement ofPersons) Regulations 2015. Regulation 6(3)(c)ofthe2015 
Regulations provides for the retention of a right to residence on the part of an EU citizen, 
exercising free movement rights in the State in certain circumstances, including where he or 
she is in duly recorded involuntary unemployment after having been employed for more than 
one year and has registered as a jobseeker with the DEASP. There is no relevant material 
difference between the provisions of the 2015 Regulations (in this regard) and the provisions 
of the 2004 Directive.
30. The two issues which require an authoritative construction of the Directive (and, by 
extension, the 2015 Regulations) are those set out at issues (1) and (2) of para. 2 of this 
judgment. A proper decision on these issues ultimately involves the construction of the 
proper scope and meaning of the 2004 Directive. The parties informed the court that there 
has been no decision of the C.IEU on either of these issues.
31. The third issue is. to some extent, an adjectival one. However, as outlined to the court, 
it is this. The Applicant argues that there is an obligation on the part of the Minister to make 
available to the former the file setting out the work or social welfare history of the European 
Union citizen from whose rights the Applicant claims derived rights. The Applicant does 
not base this argument solely on any entitlement under national law. Instead, the applicant 
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(at paras. 38 to 49 inclusive of his submissions to this court, appended to this judgment) 
contends that three principles of EU law are engaged on this issue.
32. Firstly, the Applicant relies upon the General Principle equivalent to Art. 41 of the 
CFEU, and in particular relies upon para. 41.37 of the EU Charter of Fundamental Rights, 
a Commentary (Peers et al, 2nd edn. at p. 1136): -
“Access to the file may be relevant before the decision is made by the Administration, 
or after it has been made when an applicant seeks to challenge the decision by 
judicial review. Access facilitates understanding of the evidentiary basis on which 
the decision is to be made or has been made, and of the reasoning underlining it, 
thereby placing the individual in a better position to put counter arguments when 
exercising the right to be heard or challenging the decision by way of Judicial 
Review. Access to the file and access to documentation as protected by Article 15(3) 
TFEU and Article 42 of the Charter can function as alternate routes to the same 
goal. ”
33. The Applicant further refers to cases such as C-277/LF 11 MM and C-604/12 HN.
34. Secondly, the Applicant relies (by analogy) to C-82/16 KA v Belgium at para. 54, 
where the court states: -
"In that regard, while it is indeed for the Member States to determine the rules on 
how to give effect to the derived right of residence which a third country national 
must, in the very specific situations referred to in para. 51 of this judgment, be 
granted under Art. 20 TFEU, the fact remains that those procedural rules cannot, 
however, undermine the effectiveness of Art. 20(c), to that effect, a judgment of JO 
May, 2017, Chavez - Vilchez and Others. (C-133/15, ... para. 76) "
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35. Thirdly, while the Applicant argues that production of the file by the Minister is "a 
requirement of the duty of disclosure in Judicial review” (para. 42 of the Applicant’s 
submissions to this court) it is also argued by the Applicant that ‘Judicial review in the High 
Court is the effective remedy in EU Treaty rights cases. ” The Applicant relies upon C- 
115/81 Adoui v Belgium, to C-300/111 7.Z, to C-89/17 Banger and to Arts. 15(1), 30 and 31 
of the 2004 Directive and Art. 47 of the CFEU.
36. Absent any basis in EU law for disclosure of the file, it is by no means sure that 
domestic rules of disclosure would enable the applicant to obtain this documentation. 
Paragraph 124 of the judgment of the High Court reads (in part): -
‘‘124. The Applicant in this case has specifically requested that the Respondent 
furnish him with the information received from the DEASP, but this has not been 
forthcoming. The Applicant has also pursued a Data Access request but has been 
denied access to the information received from the Department of Social protection 
as this information is confidential to the EU citizen."
37. In addition, while the Applicant does contend that there is an obligation on the Minister 
to disclose the file in the context of these proceedings as a matter of national law, this 
construction of national law is one advanced by the Applicant in the light of EU rights, as 
described earlier.
38. In any event, even were this third issue capable of being determined in favour of the 
Applicant solely by reference to domestic law, the end result would be that the determination 
of the Minister made in November 2021 would be quashed and the matter sent back to the 
Minister for fresh consideration. In conducting the matter afresh, the Minister would in all 
likelihood have to decide issues (1) and (2) without the assistance which this court now seeks 
from the C.IEU.
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(iii) The position of the parties
39. The position of the parties has evolved during the currency of the proceedings. The 
possibility of a reference does not appear to have loomed large in the submissions to the 
High Court. However, in the written submissions of this court the Minister argued (at para. 
35) that: -
“Both parties accepted the question of the calculation of the one year period on 
Article 7(3)(b) has not previously been the subject of a determination by the CJEU. 
As a consequence and in accordance with the notice of appeal, the correct manner 
of interpreting how the one year period is to be calculated remains a matter which 
could be determined by the CJEU as this court is not of the view that the matters act 
clear in the sense as outlined by the Minister. Further, should this Honourable Court 
find that the meaning of ‘involuntary unemployment' is not acte claire then this 
could also form part of any question to be referred to the CJEU. ”
40. In their written submissions, responding to those of the Minister, counsel for the 
Applicant replied: -
“ We note that the Minister now calls for a reference on this point. On further 
consideration we will not oppose that application for a reference subject to what is 
set out below. "
41. At the hearing of the appeal, counsel for the Applicant and counsel for the Minister 
accepted that this issue was of such systemic importance to the immigration system in 
Ireland that it would be desirable that, if a reference were to be made, it would be done 
sooner rather than later in these proceedings. 
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42. While the Minister proposed the reference to the CJEU of issues (1) and (2), the 
applicant also sought the reference of issue (3). Inevitably, the wording proposed by each 
side differs somewhat. The court has, in considering the questions which it feels necessary 
to refer to the CJEU, formulated its own questions and language, albeit with the assistance 
of the proposals from the parties.
(iv) The decision to refer
43. The court has decided to refer three questions at this time for the following reasons.
44. Firstly, issue (1) involves a construction of the Directive. The Irish law implementing 
the Directive is materially identical, and therefore no separate issue of national law arises. 
Issue (1) has wide ranging effects on the operation of the Irish immigration system. It is 
almost certainly the case that these issues are not confined to Ireland, and a determination of 
this issue by the CJEU is likely to be of assistance in other jurisdictions.
45. Identical considerations apply to issue (2).
46. With regard to issue (3), this involves (according to the Applicant) the vindication of 
EU law rights through the disclosure of documentation. The Applicant has failed to obtain 
this documentation by invoking national law. While the Applicant argues that the failure of 
the Minister to provide this documentation in fact helps to prove the Applicant’s case, such 
a submission (at least according to the Minister) runs counter to a decision of this court in 
Hemida v The Minister for Justice and Equality [2019] IECA 335, which held that in cases 
such as this the burden is on the applicant to present the relevant evidence in support of his 
or her claim. Hemida was distinguished by the trial judge in the current case, but it is the 
view of this court that a proper determination of the claim made by the applicant under this 
"fair procedures '’ point can only be made when the issues of EU law relied upon by the 
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applicant on this point are authoritatively determined. For these reasons, it is necessary that 
issue (3) be the subject of a reference to the CJEU. A determination of this issue will be of 
general assistance in understanding the obligations of parties such as the respondent to these 
proceedings. It may also be of some application outside Ireland.
47. With regard to the timing of the reference, the decision of this court in these 
proceedings is final and conclusive, pursuant to the provisions of Art. 34.4.3, unless the 
Supreme Court is satisfied to receive an appeal from this court on the basis that the decision 
involves a matter of general public importance or that in the interests of justice it is necessary 
that there be an appeal to that court: Art. 34.5.3 of the Constitution. In the view of this court, 
it is necessary for the determination of these proceedings that the three questions we have 
chosen to refer be answered. It is therefore clearly desirable that these questions be referred 
at this time, as opposed to later in the judicial process. In addition, and as already noted, the 
parties were of the view that the sooner some or all of these issues could be conclusively 
determined by means of a reference the better in terms of the operation of the immigration 
system in the State.
(v) The questions referred
48. The court refers the following questions to the CJEU: -
(1 )(a) Does the expression "oneyear" in Art. 7(3)(b) ofDirective 2004/38/EC (“the 
Directive”) contemplate or require that the year in question be a single continuous 
period?
(l)(b) If the answer to (a) is "no". does the fact that the periods of employment 
making up the year in question may have been accumulated or added together over 
a period of four or five years bring the EU citizen outside the scope of Art. 7(3 )(b)?
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(2) Does the fact that the EU citizen was in receipt of Jobseekers Allowance from 
the Department of Enterprise, Affairs and Social Protection in Ireland mean that he 
or she is in "duly recorded involuntary unemployment’’ in the State within the 
meaning of Art. 7(3)(b) of the Directive?
(3) Does the general principle of EU law which reflects Art. 41 of the Charter, or 
alternatively, does the Directive interpreted it in the light of that general principle, 
require the Respondent to provide its file to the Applicant (if necessary, in suitably 
redacted form) either: -
(a) before making a decision on retention of residence rights/ a Residence 
Card pursuant to Art. 14 of the Directive in relation to Arts. 13 and/Oor 
7(3) of the Directive; and/or
(b) when the applicant seeks to challenge such a decision by way of 
Judicial Review proceedings?
(vi) The question of mootness
49. In considering the admissibility of this reference, the CJEU should be aware of the fact 
that on the 16th June,, 2023 the Applicant was granted permission to reside in Ireland, 
accompanied by a right to work in the State, by reason of his parentage of an Irish citizen 
child. At first blush, therefore, it may appear that the current appeal is moot. However, the 
parties have satisfied this court that that is not the case. In particular, the entitlements which 
the Applicant would have, were he to succeed in these proceedings, would be significantly 
greater than the entitlements which he has on foot of the permission granted in June 2023. 
For the sake of completeness, the joint submission on mootness agreed between the parties 
will join the other documents appended to this judgment, which will constitute: -
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(a) the pleadings in the case;
(b) the Core Book prepared for the purpose of the appeal, to include all appeal 
documents;
(c) the joint submission on mootness;
(d) the agreed employment history of the applicant’s ex-spouse (the EU citizen).
50. The appeal will be put in for mention only at 9.30 am on the 9th of May 2024 to deal 
with any matters arising from this judgment, including the question of the costs of the appeal 
to date.