Aziz v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Max Barrett
• Judgment Date: 18 February 2020
• Neutral Citation: [2020] IEHC 61
• Docket Number: [2018 No. 821 JR]
• Court: High Court
• Date: 18 February 2020

BETWEEN

FARIDOUN KHDIR AZIZ, SRWA HAMA MAJEED

AND

FRINY FARIDOUN KHDIR (A MINOR SUING BY HER FATHER AND NEXT FRIEND FARIDOUN KHDIR AZIZ)

APPLICANTS

– AND –

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2020] IEHC 61

Max Barrett J.

[2018 No. 821 JR]

THE HIGH COURT

EU Treaty rights – Citizens’ Rights Directive – Free movement rights – Applicants seeking visa – Whether the respondent was entitled to refuse the visa appeal on the basis of a failure to prove that the applicants were beneficiaries within the meaning of the Citizens’ Rights Directive

Facts: The applicants, Mr Aziz, Ms Majeed and Ms Khdir, applied to the High Court concerning a failed EU Treaty Rights application made under the European Communities (Free Movement of Persons) Regulations 2015. The first applicant claimed to be a British national who is the husband of the second applicant (with the first and second applicants being the parents of the third applicant). Difficulty came in establishing the nature of the relationship between the trio. A key focus of the respondent, the Minister for Justice and Equality, had been the inability of the applicants to demonstrate that they have the relationships necessary for EU Treaty Rights to come into play. Two questions properly arose for consideration: (1) Was the respondent entitled to refuse the visa appeal on the basis of a failure to prove that the applicants were beneficiaries within the meaning of Directive 2004/38/EC of the European Parliament and the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (Citizens’ Rights Directive) [2004] OJ L 158/77? (2) Was the respondent entitled to find that he was not satisfied that the first applicant is not engaged in the genuine exercise of free movement rights?

Held by Barrett J that: (1) the burden of proof rested on the applicants to establish the requisite family relationship (Khan & Anor v The Minister for Justice, Equality and Law Reform [2017] IEHC 800 and Badshah & Anor v The Minister for Justice and Equality [2018] IEHC 759), the Minister went beyond what was strictly required of him at law and gave the applicants a further opportunity to clarify matters but they failed to do so to the Minister’s satisfaction, and there was nothing unreasonable, unlawful or irrational in the Minister’s decision to refuse the appeal by reference to the evidence that was placed before him; and (2) the first applicant provided the Minister with a letter, ostensibly from his landlord, which indicated that the respondent could make direct contact with the landlord, the first applicant knew or ought to have known that further enquiries might be made with the landlord, these enquiries were made at which point the landlord indicated that someone other than the first applicant was his sole tenant at the named property, the weight to be placed on the results of the inquiry made was a matter for the Minister, and no breach of fair procedures or other illegality presented in that regard.

Barrett J declined all the reliefs sought.

Reliefs refused.

JUDGMENT of Mr. Justice Max Barrett delivered on 18th February 2020.

1 This application concerns a failed EU Treaty Rights (“EUTR”) application made under the European Communities (Free Movement of Persons) Regulations 2015. The first-named applicant claims to be a British national who is the husband of the second applicant (with the first and second applicants being the parents, it is claimed, of the third-named applicant). Unfortunately, some difficulty has come in establishing the nature of the relationship between the trio. Though a variety of observations are made in the decision-letters of 20 July 2018, it would be fair to say that a key focus of the Minister has been the inability of the applicants to demonstrate that they have the relationships necessary for EU Treaty Rights to come into play. In this regard, the Minister had the following concerns:

(1) a United Kingdom deed poll certificate shows that on 20 January 2016, a person by the name of ‘Faridoun Salehi’ changed his name to ‘Faridoun Khdir Aziz’;

(2) in an exhibited marriage certificate of 25 October 2012 (so at a time when the first named applicant's name would appear to have been ‘Faridoun Salehi’) a person by the name of ‘Faridoun Khdir Aziz’ was married. The Minister stated in the letter of 20 July 2018 ‘We have received no explanation for this discrepancy’; and

(3) the birth certificate for Ms Friny Khidr, dated 29 September 2014, names her father as ‘Faridoun Khdir’ (so at a time when the first named applicant's name would appear to have been ‘Faridoun Salehi’).

2 The decision letter of 20...