LE and Another v The Minister for Justice
| Jurisdiction | Ireland |
| Judge | Mr Justice Barr |
| Judgment Date | 08 November 2023 |
| Neutral Citation | [2023] IEHC 616 |
| Court | High Court |
| Docket Number | [Record No. 2022/945 JR] |
and
[2023] IEHC 616
[Record No. 2022/945 JR]
THE HIGH COURT
JUDGMENT of Mr Justice Barr delivered extempore on 8 th November 2023.
. The first applicant is the adult daughter of the second applicant. The first applicant is a citizen of Vietnam. The second applicant is a citizen of the UK. For the purposes of these proceedings, it has been accepted that the second applicant was at all material times a citizen of the European Union.
. In these proceedings, the applicants seek an order setting aside a review decision made by the respondent on 13 th July 2022, in which she refused the application that had been brought by the first applicant for a residence card on the basis that she was a dependent qualifying family member of the second applicant, who had exercised his right to free movement within the EU, by relocating from the UK to Ireland in June 2016.
. It is alleged that in reaching the decision to reject the application for a residence card, the Minister applied the wrong test at law, when she determined that there was insufficient evidence of the first applicant being financially dependent upon the second applicant, subsequent to her arrival in the State in 2019. It was submitted that the correct test to apply, was whether the child of the EU citizen had been financially dependent on the EU citizen in the period prior to him or her accompanying the EU citizen into the State, or joining the EU citizen there. It was submitted that as that test had not been applied in the review decision, it should be struck down by this court.
. On behalf of the respondent, it was submitted that when one read the review decision of 13 th July 2022 in its entirety, it was clear that the Minister had applied the correct test at law, notwithstanding that she had made reference to the lack of evidence of dependency in the period after the first applicant had joined the second applicant in the State in 2019. It was submitted that those findings in the decision, did not render the remainder of the findings made concerning the lack of evidence of dependency, flawed or ineffective. It was submitted that in these circumstances, the review decision was sound in law.
. The first applicant was born on 13 th September 1998. The second applicant, her father, was born on 25 th May 1969. The second applicant left Vietnam in 2009, when he travelled to the UK to obtain work. During the following four years, he worked in the UK and sent money back to his family in Vietnam. The second applicant became a UK citizen.
. In 2013, the first applicant and her mother, the wife of the second applicant, travelled to the UK, to reside there with the second applicant. The first applicant was 15 years of age at that time.
. In June 2016, the second applicant travelled to Ireland to obtain work. On 6 th October 2019, the first applicant and her mother joined the second applicant in Ireland. In December 2019, the second applicant applied for a residence card to remain in the State, based on the fact that she had been dependent on the second applicant and was therefore a dependent qualifying family member, within the meaning of Directive 2004/38/EC of the European Parliament and of the Council of 29 th April 2004 of the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (hereinafter “the directive”) and pursuant to the European Communities (Free Movement of Persons) Regulations 2015 ( SI 548/2015).
. By letter dated 12 th December 2019, the respondent wrote to the first applicant informing her that she had to provide evidence of relationship with the EU citizen. The letter stipulated that evidence of dependence on the EU citizen since arrival in the State, must be specifically in the applicant's name showing payments by the EU citizen. The letter also requested evidence of residence of the applicant and the EU citizen in the State, to include a letter from the landlord confirming that the applicant was also residing at the same address and utility bills for the applicant.
. The first applicant's former solicitor responded to that letter by letter dated 21 st January 2020. Unfortunately, there was an error in the title of the letter, which purported to show that the letter related to the application that had been made by the first applicant's mother. It also gave her personal identification number for the application process. This was significant, because it had the consequence, that that correspondence was placed onto the mother's file, rather than onto the file belonging to the first applicant.
. In the letter dated 21 st January 2020, the first applicant's former solicitor had provided a letter from the landlord regarding her residence at an address in Dublin. It also provided a utility bill from Virgin Media dated 7 th January 2020 for that address. In addition, a number of other documents showing payments made by the EU citizen for the benefit of the first applicant at various times between 2008 and 2013, were submitted.
. On 27 th February 2020, the respondent gave her first instance decision in relation to the application that had been lodged on behalf of the first applicant. It is important to note that that decision was made without sight of the documentation that had been furnished by the first applicant's former solicitor with his letter dated 21 st January 2020, as that letter would have been placed onto the mother's file, rather than on the file belonging to the first applicant. The relevant parts of the Minister's decision were in the following terms:
“ Subsequently, on 12 December 2019, correspondence issued to you requesting evidence of relationship with the EU citizen, showing evidence of dependence on the EU citizen since arrival in the State and evidence of residence, including a letter from landlord confirming that you are also residing at the same address, along with utility bills in your name.
No response was forthcoming and on the basis of the information and documents supplied, the Minister is not satisfied that you are a qualifying family member as set out in regulation 3 (5) of the regulations, as you have failed to provide evidence of dependence and residence on your EU citizen father Cuong Qwoc Le.
Having considered all the information and documentation available, the Minister is satisfied that you have submitted insufficient evidence that you are the dependent daughter of the EU citizen and as such it is in order to refuse the application at hand.”
. On 11 th March 2020, the first applicant sought a review of the first instance refusal of her application. Prior to the making of the review decision, the applicant's former solicitor noted that his letter of 21 st January 2020 had been incorrectly sent as relating to the mother's application. He therefore re-sent the documentation that was contained in that letter, along with some further documentation showing the dependence of the first applicant on the second applicant since her arrival in Ireland in 2019.
. The respondent issued her decision on the review on 13 th July 2022. The relevant portions of that decision are in the following terms:
“ It has been submitted that you are the adult dependent daughter of your British national father, Cuong Qwoc Le. In this regard, this office notes the presentation of AIB bank statements bearing the name of the British national dated 3 April 2019 – 3 October 2019. On examination of the statements, these demonstrate no evidence of the provision of funds to you by the British national in Ireland. Furthermore, on examination of your application for a review of the Minister's decision of 27th of February 2020, no further evidence has been presented to demonstrate that you have been in receipt of funds from the British national since your arrival in the State.
The Minister has given consideration as to whether dependency may have been established prior to your entry to the State. In this regard, this office notes your presentation on review of receipts and dockets in respect of international funds transfers from the United Kingdom to Vietnam. These include receipts from companies including Western Union, Moneygram, Incombank and Vietcombank. It is apparent upon examination of these dockets that these are dated during the years 2008 to 2013. While acknowledging that you have presented a substantial number of documents which indicate that you may have been in receipt of financial assistance from the British national between 2008 and 2013, there is nothing to indicate that any such assistance continued after 2013. You submit that you arrived into Ireland on 6 October 2019. In this regard, it is apparent that you have not demonstrated any verifiable evidence that you are in receipt of any financial support for approximately six years prior to your entry to Ireland. Taking this into consideration with the absence of verifiable evidence of dependency since your arrival in the State, the Minister is not satisfied that evidence has been presented to demonstrate that you have established financial dependency on your British national father.
The onus is on you, the applicant, to satisfy the Minister by cogent evidence which could be tested that the level of maternal [sic] support that you receive from the Union citizen, its duration, and its impact upon your personal financial circumstances, combined together to meet the material definition to dependency in Ireland. You are required to establish that you rely for some of the essential material needs of life on the British national and that you are not able to support yourself without help from the British national. You have failed to do so and, as such, the Minister is not satisfied that you are dependent...
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