Badshah v The Minister for Jutsice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 21 December 2018
• Neutral Citation: [2018] IEHC 759
• Docket Number: 2018 No. 314 JR
• Court: High Court
• Date: 21 December 2018

[2018] IEHC 759

THE HIGH COURT

Barrett J.

2018 No. 314 JR

Between:

HASEENA BEEVI BADSHAH, AHAMED ALI (a minor suing through his grandfather and next friend AKBAR BADSHAH)

and

AKBAR BADSHAH

Applicants

– and –

THE MINISTER FOR JUSTICE AND EQUALITY

Respondent

Visa applications – Certiorari – Qualifying family member – Applicants seeking orders of certiorari in respect of, and certain declarations consequent upon, appeals decisions – Whether the applicants were qualifying family members under the EC (Free Movement of Persons) Regulations 2015 reg. 3(5)

Facts: The third applicant, Mr Badshah, was an adult UK national resident in Ireland. His daughter, the first applicant, Ms Badshah, was an Indian national resident in the UAE. Ms Badshah’s minor son, the second applicant, Master Badshah, was an Indian national, living with Ms Badshah. On 25.07.2016, visa applications were made for Ms Badshah and Master Badshah under the EC (Free Movement of Persons) Regulations 2015. Those were refused and subsequent appeals failed. The applicants applied to the High Court seeking, inter alia, orders of certiorari in respect of, and certain declarations consequent upon, the appeals decisions. The separate appeals decisions concerning Ms Badshah and Master Badshah indicated, inter alia, regarding: (1) both Ms Badshah and Master Badshah, that “You have failed to prove that you qualify as a beneficiary of Directive 2004/38/EEC”; (2) Ms Badshah, that “You have not provided sufficient…evidence that you are financially dependent on your father…or that he can financially support you. You have not provided evidence that you are dependent on him in any other way”; (3) Master Badshah, that “You have not provided sufficient…evidence that you are financially dependent on your grandfather…or that he can financially support you. You have not provided evidence that you are dependent on him in any other way.”

Held by Barrett J that Master Badshah was a “qualifying family member” under the 2015 Regulations, reg. 3(5), being Mr Badshah’s direct descendant and under the age of 21; that he enjoyed that status placed him in an at least somewhat advantaged position under the Directive. As for Ms Badshah, Barrett J held that it was open to the Minister to conclude that she had failed to establish her dependency on Mr Badshah, with the result that she was not a “qualifying family member” for the purposes of the 2015 Regulations.

Barrett J held that: (1) the court would grant an order of certiorari in respect of Master Badshah’s appeal and remit that appeal to the Minister for fresh consideration; (2) Ms Badshah’s application was respectfully refused.

Application granted in part.

JUDGMENT of Mr Justice Max Barrett delivered on 21st December, 2018.

1 Mr Akbar Badshah is an adult UK national resident in Ireland. His daughter, Ms Haseena Badshah, is an Indian national resident in the UAE. Ms Badshah's minor son, Master Ahamed Badshah, is an Indian national, living with Ms Badshah. On 25.07.2016, visa applications were made for Ms Badshah and Master Badshah under the EC (Free Movement of Persons) Regulations 2015. These were refused and subsequent appeals failed. This application seeks, inter alia, orders of certiorari in respect of, and certain declarations consequent upon, the appeals decisions.

2 The separate appeals decisions...