Awan v The Minister for Justice and Equality

JurisdictionIreland
CourtHigh Court
JudgeMr Justice David Keane
Judgment Date04 July 2019
Neutral Citation[2019] IEHC 487
Docket Number[2017 No. 497 JR]
Date04 July 2019
BETWEEN
MUJEEBUR REHMAN AWAN, NAZAKET MUJEEB AWAN, MUHAMMAD USMAN MUJEEB AWAN, MUHAMMAD BILAL MUJEEB AWAN

AND

SAIF UR REHMAN
APPLICANTS
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT

[2019] IEHC 487

Keane J.

[2017 No. 497 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Residence card – Qualifying family member – Applicants seeking judicial review of the respondent’s decisions – Whether the respondent failed to comply with the obligation to provide reasons for each decision

Facts: The applicants, Messrs Awan, Mrs N Awan and Mr Rehman, applied to the High Court seeking judicial review of five separate decisions by the respondent, the Minister for Justice and Equality, each made under Regulation 21(4) of the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 and 2008 (the 2006 Regulations), since revoked, on various dates between 17 and 21 March 2017, to uphold on review in each case a first instance decision of 10 November 2015 or, as the case may be, 20 November 2015, under Reg. 7(2) of the 2006 Regulations, to refuse each of the five applicants, who are nationals of Pakistan, a residence card as a qualifying family member or, where appropriate, a permitted family member of Mrs R Awan (née Khatoon), a British - and, hence, European Union – citizen, exercising free movement rights in the State. The applicants impugned the review decisions on the following three grounds: (i) the Minister failed to comply with the obligation to provide reasons for each decision; (ii) the Minister erred in law in wrongly applying the ‘permitted family member’ test to the Union citizen’s parents-in-law, who are qualifying family members, and in wrongly considering the issue of the dependency of those applicants on the Union citizen in the United Kingdom, as the country from which each had come, rather than in the State; and (iii) the Minister erred in law in considering the ‘sole’ dependence on the Union citizen of the other applicants, as part of the ‘permitted family member’ test in respect of each.

Held by Keane J that, as a matter of both law and fact, the Minister did address the correct legal test i.e. whether the relevant applicants were qualifying family members as dependent direct relatives of the Union citizen’s spouse in the State whence they came. Keane J held that none of the applications turned on whether the financial support that the applicants claimed to be in receipt of from the Union citizen was or was not necessary to enable each to maintain the essentials of life. Keane J was satisfied that there was no breach of the obligation to provide reasons capable of vitiating the review decisions.

Keane J held that the application for judicial review would be refused.

Application refused.

JUDGMENT of Mr Justice David Keane delivered on the 4th July 2019
Introduction
1

This is the judicial review of five separate decisions by the Minister for Justice and Equality (“the Minister”), each made under Regulation 21(4) of the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 and 2008 (“the 2006 Regulations”), since revoked, on various dates between 17 and 21 March 2017, to uphold on review in each case a first instance decision of 10 November 2015 or, as the case may be, 20 November 2015, under Reg. 7(2) of the 2006 Regulations, to refuse each of the five applicants, who are nationals of Pakistan, a residence card as a qualifying family member or, where appropriate, a permitted family member of Rabiya Awan (née Khatoon), a British - and, hence, European Union – citizen, exercising free movement rights in the State. For convenience, I will refer to those five decisions collectively as “the review decisions”.

2

While the review decisions were made after the revocation of the 2006 Regulations by the European Union (Free Movement of Persons) Regulations 2015 (“the 2015 Regulations”), which came into operation on 1 February 2016, each of the applicants had sought that review on 7 December 2015, and, under the transitional provision of Reg. 31(28) of the 2015 Regulations, the review provisions of Reg. 21 of the 2006 Regulations continued to apply in those circumstances.

3

The 2006 Regulations and the 2015 Regulations that succeeded them were each 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”). The requirements of the Citizens” Rights Directive have not changed.

4

In substance, the reason the Minister gave for the review decision in each case is that the person concerned failed to establish that he or she is a “qualifying family member” or, as the case may be, “permitted family member” of Ms. Awan, within the meaning of those terms under Reg. 2(1) of the 2006 Regulations (transposing the definitions in Art. 2(2) and Art. 3(2) of the Citizens” Rights Directive of “family member” and “other family members” respectively), because each applicant failed to establish that, in the United Kingdom (as the country from which each had come), he or she was either: (a) a dependant of Ms. Awan, as a Union citizen; or (b) a member of the household of Ms. Awan, as a Union citizen.

Background

i. the applicants

5

Rabiya Khatoon, a British citizen, was born in 1992. On 23 September 2013, she married Muhammad Ummar Majeeb Awan, a national of Pakistan, born in 1993. On their marriage certificate they are each described as a “student”. For clarity, I will refer to Ms. Awan (née Khatoon) as “the Union citizen” and to Muhammad Ummar Majeeb Awan as “the husband.” Together with each of the applicants and the Union citizen's brother Rashid Mehmood, also a British citizen, the couple entered the State in December 2014. In February 2015, the Union citizen took up employment in a creche in West Dublin. The Union citizen and her husband have had two children since they arrived in the State, the first born in 2015 and the second in 2017. Each is an Irish citizen, presumably by operation of s. 6A(2) of the Irish Nationality and Citizenship Acts 1956 and 2004. The husband has obtained a residence card and has obtained employment with a company in the information technology sector.

6

The first applicant Mujeebur Rehman Awan is a male national of Pakistan, born in 1969. He is the father of the husband and, hence, the father-in-law of the Union citizen. He entered the United Kingdom on a student visa in 2004 to study law and is now a solicitor, qualified to practice law in Pakistan, the UK and Ireland. His student visa to enter and reside in the UK expired in 2008, and his permission to remain in the UK expired in June 2009 when an appeal he had lodged with the immigration authorities there was dismissed. He was admitted to the Roll of Solicitors in Ireland in September 2015 and a practising certificate issued to him on 14 December 2015. By the time these proceedings commenced, he was in practice as a partner in a firm of solicitors in Dublin. For the purpose of clarity, I will refer to him in this judgment as “the father-in-law.”

7

The second applicant Nazaket Mujeeb Awan is a female national of Pakistan, born in 1972, and is the wife of the first applicant and, hence, the mother-in-law of the Union citizen. She is a qualified homeopathic doctor. I will refer to her as “the mother-in-law”.

8

She entered the UK in December 2005 with the youngest son of the marriage, Muhammad Bilal Mujeeb Awan, the fourth applicant. He is a national of Pakistan, born in 1999. When these proceedings commenced, he was still a minor (suing through his father, as his next friend) but has since attained his majority and is now pursuing them in his own right. I will direct the amendment of the title of the proceedings, accordingly. He is the Union citizen's brother in law. For clarity, I will refer to him as “the younger brother-in-law”.

9

The two other sons of that marriage, who are the Union citizen's husband and the third applicant Muhammad Usman Mujeeb Awan, joined the family in the UK from Pakistan in January 2006. I will refer to the third applicant, who is a national of Pakistan, born in 1994, as “the older brother-in-law”.

10

The fifth applicant, Saif Ur Rehman, is a national of Pakistan, born in 1961. He is the brother of the Union citizen's father in law. He entered the UK in September 2014, before travelling to Ireland with the other applicants, the Union citizen and her husband in December 2014. For simplicity, although not without placing some strain on the English language, I will refer to him as “the uncle-in-law.”

ii. the applications

11

Each of the applicants submitted a separate “Form EU1” application for a residence card, signed on 25 March 2015, together with a range of supporting documentation, under cover of an undated letter signed by the Union citizen and her husband. In that cover letter, the Union citizen stated, in material part:

“The applicants are the direct family member[s] of my husband moreover we have also been member[s] of the same household since my marriage i.e. 23rd September 2013. The applicants have been financially as well as otherwise fully dependent upon me and my husband.”

12

The INIS acknowledged receipt of each of those various residence card applications in separate letters dated, 29 April 2015, requesting the provision of various kinds of documentation to evidence the applicants” claims. Each of the applicants wrote in reply on the 22 May 2015, furnishing additional documentation in response to that request.

iii. first instance refusal to issue a residence card to each applicant

13

On 20 November 2015, the INIS wrote to each of the applicants to inform them that the Minister had...

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