Ali Agha v Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 23 December 2019
• Neutral Citation: [2019] IEHC 883
• Docket Number: [2019 No. 374 JR]
• Court: High Court
• Date: 23 December 2019

BETWEEN

FAIZAAN ALI AGHA

APPLICANT

- AND -

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2019] IEHC 883

Max Barrett

[2019 No. 374 JR]

THE HIGH COURT

Visa application – Qualifying family member – Certiorari – Applicant seeking order of certiorari – Whether the respondent erred in law and/or applied the incorrect test and/or failed to have regard to relevant considerations in refusing the applicant’s application for a visa for his mother as a qualifying family member

Facts: The applicant, Mr Agha, a British national, came to live and work in Ireland. His mother, who was unwell, lived in Pakistan. By appeal decision of 26.03.2019 (the Impugned Decision), his application for a visa for his mother to enter Ireland pursuant to Art. 3(1) of Directive 2004/38/EC (the Citizens’ Rights Directive) had been unsuccessful. Five legal questions were contended to present in the application to the High Court: (1) Did the respondent, the Minister for Justice and Equality, err in law and/or apply the incorrect test and/or fail to have regard to relevant considerations in refusing Mr Agha’s application for a visa for his mother as a qualifying family member? (2) Did the Minister err in law and/or act in breach of fair procedures and/or fail to have regard to relevant considerations and/or have regard to irrelevant considerations in drawing adverse inferences on the basis of a failure to provide evidence of Mr Agha’s mother’s financial arrangements? (3) Did the respondent err in law and/or fail to have regard to relevant considerations and/or fail to give a reasoned decision in respect of the finding that the applicant’s mother was not dependent on him, in circumstances where there were no transfers made from the applicant’s siblings in either of his bank accounts from January 2018 onward, which was relevant to the issue of both assessing the credibility of the applicant’s explanation that the previous transactions related to a loan and more importantly that the applicant has been responsible for making the payments for his mother’s nursing home and is therefore providing financial support for her essential aid? (4) Did the respondent err in law and/or act ultra vires in reaching his decision with reference to “the public policy imperative of maintaining the integrity of the State’s immigration system, including the integrity and security of the Common Travel Area with the United Kingdom, and the overall security of the State”? (5) Did the Impugned Decision fail to properly and fairly examine, weigh and adjudicate upon the submissions and supporting documentation filed by the applicant as part of his appeal against the refusal of a visa for his mother?

Held by Barrett J that he would answer the questions as follows: (1) ‘Yes’; (2) ‘Yes’; (3) ‘Yes’; (4) ‘Yes’; (5) the Impugned Decision suffers from the manifold deficiencies identified.

Barrett J held that the court would grant the order of certiorari identified at item 1 of the Notice of Motion of 28.06.2019 and remit this matter to the Minister for fresh consideration.

Order granted.

JUDGMENT of Mr Justice Max Barrett delivered on 23rd December, 2019.

1 Mr Agha is a British national who has come to live and work in Ireland. His mother, who is unwell, currently lives in Pakistan. By appeal decision of 26.03.2019 (the ‘Impugned Decision’), his application for a visa for his mother to enter Ireland pursuant to Art.3(1) of Directive 2004/38/EC (the Citizens' Rights Directive) has been unsuccessful. The following chronological summary is of assistance in understanding the issues arising:

04.05.1991.	Mr Agha is born in Pakistan. He enjoys British citizenship by descent.
Early-2004.	Mr Agha moves to United Kingdom. His older brothers were already living there. His mother remains in Pakistan.
Dec. 2007-
Jul. 2008.	Mr Agha lives in Pakistan.
Jul. 2008-
Mar. 2017.	Mr Agha lives in UK until moving to Ireland in March 2017. (He has lived and worked here since then).
21.02.2017.	Mr Agha submits visa application to Ireland explaining that he intends to move to Ireland and is seeking a visa to allow his mother to join him as she is (he claims) dependent on him.
24.11.2017 &
11.12.2017.	Mr Agha makes further submissions in support of application
28.03.2018.	Mr Agha solicitors send pre-litigation warning letter to respondent.
04.04.2018.	Mr Agha's solicitors send further supporting documents.
09.04.2018.	Respondent refuses visa application for two reasons: (i) an alleged failure to prove his relationship with the EU national; and (ii) failure to establish dependency.
28.05.2018.	Mr Agha appeals decision.
05.10.2018.	Mr Agha's solicitor threatens judicial review proceedings if a decision does not issue within 21 days.
25.10.2018.	Respondent seeks various additional information.
07.01.2019.	Respondent issues letter indicating decision will issue within 3 weeks.
30.01.2019.	Mr Agha's solicitor writes indicating that deadline has passed and seeking decision.
31.01.2019.	Mr Agha's solicitor sends pre-litigation warning letter.
11.02.2019.	High Court grants leave to seek judicial review.
26.03.2019.	Respondent refuses visa appeal in respect of applicant's mother.
24.06.2019.	Leave to bring within application granted.
20.12.2019.	Application heard.

2 Decision-making processes take time. However, the periods of 21.02.2017 - 09.04.2018 to make the initial decision and the...