Alauddin and Others v Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Jackson
• Judgment Date: 15 November 2023
• Neutral Citation: [2023] IEHC 621
• Court: High Court
• Docket Number: Record No. 2022/953 JR

Between:

Mohammed Alauddin, Naim Uddin and Nurjahan Begum

Applicants

and

The Minister for Justice

Respondent

[2023] IEHC 621

Record No. 2022/953 JR

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Ms. Justice Jackson delivered the 15 ^th day of November 2023 .

INTRODUCTION

1 This is an application for judicial review of two decisions by the Minister for Justice (‘the Minister’), dated the 5 ^th August 2022 (‘the decisions’), under Regulation 5 of the European Communities (Free Movement of Persons) Regulations 2015 (‘the 2015 Regulations’), to uphold on review first instance decisions of the 31 ^st January 2022 to refuse the applications of Naim Uddin (the Second Named Applicant) a national of Bangladesh, and Nurjahan Begum (the Third Named Applicant), a national of Bangladesh, for visas to enable them to come and live with Mohammed Alauddin (‘the First Named Applicant’), as permitted family members under the Regulations on the basis that the First Named Applicant is United Kingdom citizen, exercising his Treaty right of freedom of movement within the State and that the Second and Third Named Applicants are dependent upon him.

2 The reliefs sought in Paragraphs (d)1 and 2 of the Statement of Grounds are in identical terms but it was agreed by all parties that the reliefs being sought are Orders of Certiorari in respect of each of the decisions of the Minister in respect of the Second and Third Named Applicants.

3 The 2015 Regulations were made, in exercise of the powers conferred on the Minister by s. 3 of the European Communities Act, 1972, to give effect to Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the rights of the citizens of the Union and their family members to move and reside freely within the territory of the Member States (‘the Citizens’ Rights Directive’). They came into operation on the 1 February 2016.

4 In substance, the reason the Minister gave for the decision is that the Second and Third Named Applicants failed to establish that they are ‘permitted’ family members of the First Named Applicant (within the meaning of that term under Regulations 2(1) and 3(6) of the Citizens' Rights Directive concerning ‘other family members’), because:

• (a) The First Named Applicant had failed to establish that he was exercising freedom of movement rights within the State, and

• (b) The Second and Third Named Applicants had failed to establish that they were dependent upon the First Named Applicant.

PROCEDURAL HISTORY AND GROUNDS OF CHALLENGE

5 Leave was granted for the Applicants to seek judicial review by way of Certiorari of the aforementioned decisions of the Minister by Order of the High Court (Meenan J.) on the 5 ^th December 2022. The legal grounds upon which relief is sought (as set out in the Statement of Grounds) are:

• i. The Respondent imposed unreasonable and irrational evidentiary requirements in refusing the visa appeals of the Second and Third Named Applicants. Significant independent documentary evidence was disregarded without any rational basis, leading to an invalid decision in each appeal;

• ii. The Respondent imposed an unreasonable and unlawful standard of proof in relation to the assessment of the documentation before her. The Respondent failed to determine the factual issues in the visa application on the balance of probabilities basis;

• iii. The Respondent erred in law and applied an inappropriate test in requiring that the first Applicant be exercising free movement rights “in a genuine and effective manner”. It appears that the Respondent has confused the test to be applied in the Applicants' cases with the test regarding employment or self-employment must be “genuine and effective”). The Respondent's apparent requirement that the first Applicant be exercising his free movement rights “in a genuine and effective manner” is irrational and has no basis in law.

• iv. The Respondent's decisions are void for uncertainty, in circumstances where the Respondent has not found that the first Applicant is not in employment in the State, and has not doubted the genuineness of his employment, but nonetheless has found that the first Applicant's exercising of his free movement rights is not “genuine and effective”. It is wholly unclear what this apparently central finding means.”

FACTUAL BACKGROUND

6 The First Named Applicant was born on the 19 ^th August 1980 in Bangladesh and is a dual UK and Bangladeshi citizen. The Second Named Applicant, the First Named Applicant's brother, was born on the 24 ^th August 1999 in Bangladesh and is a Bangladeshi citizen. The Third Named Applicant, the First Named Applicant's sister, was born on the 28 ^th October 2003 in Bangladesh and is a Bangladeshi citizen.

7 The parents of the Applicants, Hasnara Begum and Abdul Kalam, died in 2008 and 2015 respectively. The Second and Third Named Applicants were still minors.

8 The First Named Applicant came to Ireland in July 2020, and since August 2020 he has, the Applicants assert, worked as a kitchen manager in Killarney at Eashal and Aroush Limited (trading as Uptown Restaurant, Killarney). The Applicants' further assert that particularly since their father died in 2015, the First Named Applicant has been responsible for providing financial support for the Second and Third Named Applicants.

9 By cover letter dated the 23 ^rd November 2020, enclosing supporting documentation, the Second and Third Named Applicants applied to the Respondent for visas to enable them to come and live with the First Named Applicant in Ireland, on the basis that they were dependent on him, and so were permitted family members of an EU citizen exercising free movement rights.

10 It is not disputed that the question of whether they were permitted family members of his under Regulation 5(2) of the European Communities (Free Movement of Persons) Regulations 2015 retained its relevance after Brexit, on the basis of Regulation 23(2) of the European Union (Withdrawal Agreement) (Citizens' Rights) Regulations 2020. The said visa applications were refused at first instance on the 31 ^st January 2022. It was found by the Respondent that the Second and Third Named Applicants were not financially or socially dependent on the First Named Applicant, and the Respondent did not accept that the First Named Applicant was habitually resident in the State.

11 An appeal was submitted by the Applicants' solicitors on behalf of the Second and Third Named Applicants on the 26 ^th March 2022. Each of the grounds for refusal were addressed and additional documentary evidence was provided.

12 The Respondent refused the visa appeals of the Second and Third Named Applicants on the 5 ^th August 2022. Again, it was found that the Second and Third Named Applicants were not financially or socially dependent on the First Named Applicant, and it was found that it had not been proven that the First Named Applicant was exercising his free movement rights in Ireland in a genuine and effective manner.

THE DECISION

13 In relation to the issue of dependency, the Respondent's decisions state that to be a permitted person, such person must (p. 3 in each decision):

“… demonstrate that you need the support from your stated brother [in] order to meet your essential needs. There must be a real need for the financial assistance. It is a test of the facts and not an interrogation of the reasons for the support. While showing that transfers are made, might be a state to establishing dependency, it is not dispositive of the issue, as this office requires proof that the asserted dependence is “something of substance, support that is more than just fleeting or trifling, and support that must be proven, concrete, and factually established.”

To that end, it is for your and your sponsor to factually establish to the satisfaction of this office that the needs actually met by this support was essential to life and were more than “merely welcome”, in order to qualify under the Directive as a dependent of an EU citizen.”

Having quoted extensively from the first instance decision and documentation submitted in that context and further having referenced the additional documentation submitted with the appeal, the decisions (at p. 10 in each decision) state:

• (a) regarding the Second Named Applicant –

  “While it is noted that you have submitted the letter from Nanupur Laila-Kabir College which states “It is noted in our office record that Mr. Mohammed Alauddin … pays for his tuition and other college registration fees. [Sic]”, however no documentary evidence was submitted in support of this. In the circumstances, it has not been proven that you have received any financial support whatsoever from your sponsor that could be considered as either necessary, or sufficient, to meet your essential living costs.”

• (b) Regarding the Third Named Applicant –

  “While it is noted that you have submitted the letter from Fatickchari Govt. College which states “It is noted in our record that Mr. Mohammed Alauddin … pays the tuition fees on time [Sic]”, however no documentary evidence was submitted to show that your EU sponsor is responsible for the payment of these fees. In the circumstances, it has not been proven that you have received any financial support whatsoever from your sponsor that could be considered as either necessary, or sufficient to meet your essential living costs.”

14 In relation to the issue of proof of the exercising of rights by the sponsor Applicant, the documentation submitted can conveniently be allocated to addressing two different aspects of the exercise of such rights being occupation and accommodation. In relation to the former, payslips and a contract of employment had been provided. In relation to the latter, there had been a change of accommodation between the initial determination and the appeal and, in the context of the appeal, a letter from the...