Elbahlawan v. Minister for Justice: Landmark Decision on EU Treaty Rights and Deportation


Olga Shajaku

In this case, Khalid Mohamed Said Hussain Elbahlawan, the applicant, sought an order of certiorari concerning a decision by the Minister for Justice dated December 6, 2022. The decision denied Elbahlawan the application of principles outlined in the CJEU’s Chenchooliah v Minister for Justice & Equality (Case C-94/18), which could have entitled him to be removed from Ireland under Directive 2004/38/EC rather than being deported under s. 3 of the Immigration Act 1999. Elbahlawan argued that the decision was flawed because it did not consider his acquisition of EU treaty rights (EUTR) as a qualifying family member during his residency in Ireland with his Swedish wife, Ms. Bjuhr, from 2009 to 2013.

The Minister, in response, argued that due to Elbahlawan’s complex immigration history after his divorce from Ms. Bjuhr and her departure from Ireland in 2013, any rights he may have acquired had expired or been forfeited by the time of his application in 2022. The Minister contended that Elbahlawan’s subsequent residence permits and his departure to Egypt, where he remarried, further justified the decision to deny his reliance on Chenchooliah principles.

Elbahlawan’s immigration history included seeking asylum in 2001, marriage to Ms. Elmakky in Egypt in 2004, subsequent marriage to Ms. Bjuhr in 2009, and divorce from her in 2013. His EUTR permission was revoked upon Ms. Bjuhr’s departure from Ireland, and he was granted discretionary permissions to remain in Ireland until 2019. Following a trip to Egypt in 2018, during which he claims to have been injured in a road accident, Elbahlawan faced challenges with visa applications and citizenship proceedings upon his return to Ireland.

The impugned decision by the Minister, dated December 6, 2022, was criticized for its brevity and lack of clarity regarding the reasoning behind the denial of Elbahlawan’s reliance on Chenchooliah principles. The court found the decision insufficient in addressing Elbahlawan’s past EUTR and the application of Chenchooliah principles, thus necessitating its quashing. The court ordered the matter to be reconsidered by the Minister, withholding judgment on the substantive issue of Elbahlawan’s entitlement to Chenchooliah rights.

Additionally, the court granted an extension of time for the judicial review proceedings up to June 20, 2023, and scheduled a mention for final orders and costs on March 14, 2024, allowing the parties time to submit written submissions.

For the full case : https://www.courts.ie/acc/alfresco/0d240581-aecd-4b0a-8c97-41db139d9a70/2024_IEHC_103.pdf/pdf#view=fitH


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