Chittajallu v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 11 July 2019
• Neutral Citation: [2019] IEHC 521
• Docket Number: 2019 No. 28 JR
• Court: High Court
• Date: 11 July 2019

[2019] IEHC 521

THE HIGH COURT

Barrett J.

2019 No. 28 JR

SAMYUKTA CHITTAJALLU

and

NIVEDITHA CHITTAJALLU VENKATA

Applicants

– and –

MINISTER FOR JUSTICE AND EQUALITY

Respondent

Visa application – Qualifying family member – Dependency – Applicants seeking an order of certiorari – Whether there were deficiencies in the respondent’s review decision

Facts: The applicants, Ms Chittajallu and Ms Venkata, on 22.04.2016, submitted a visa application based on the first applicant being a “qualifying family member” of an EU citizen (the second applicant, a UK national, who was then residing in the UK). In his review decision of 31.10.2018, the respondent, the Minister for Justice and Equality, concluded that “I am not satisfied that you are dependent on your sponsor”. The applicants sought an order of certiorari. Their statement of grounds stated the following: (i) “In refusing the first applicant’s visa appeal, the respondent failed to have regard to all representations submitted by the applicants in support of the appeal”; (ii) “In concluding that the first applicant had not established her dependency upon the second applicant, the respondent relied upon the absence of specific documentation that had not been sought by the respondent in advance of making the decision”; (iii) “In concluding that…insufficient evidence had been submitted to prove that the first applicant was dependent upon the second applicant but failing to specify or otherwise inform the applicants in advance of the evidence required to maintain the application, the respondent’s decision is not based on a sufficiently factual basis”; (iv) “By failing to consider specific documentation supplied by the applicants such as documentation establishing that the second applicant was in full-time employment in the State and Bank statements that established the transaction in September 2015 was a self-lodgment, the Minister acted irrationally and/or disproportionately and/or ultra vires and/or in breach of the [European Communities (Free Movement of Persons) Regulations 2015 and/or the Citizens’ Rights Directive (Directive 2004/38)] and/or in breach of the principle of effectiveness…in concluding that there was insufficient evidence on file to support a conclusion that the first applicant was dependent upon the second applicant”; (v) “By failing to address the entirety of the detailed evidence submitted on behalf of the second applicant in support of their claim to be dependent…the respondent acted in breach of the [Citizens’ Rights Directive and/or the 2015 Regulations and/or the Charter of Fundamental Rights] and/or in breach of fair procedures, natural and constitutional justice”; (vi) “In determining whether the first applicant was dependent on the second applicant, the respondent failed to assess whether the second applicant provided material support for the first applicant and/or whether regular payments for a significant period were met”; (vii) “The Respondent failed to provide any or any proper reasons for the conclusion that the first applicant was not dependent”; and (viii) “In circumstances where the respondent has imposed evidentiary requirements upon the applicants that make it impossible in practice or excessively difficult to establish that the first applicant was dependent upon the second applicant, the respondent has acted [unlawfully]”.

Held by the High Court (Barrett J) that: (i) the Minister proceeded on a mistaken basis as to fact and did not appreciate the nature of certain of the evidence presented to him; (ii) as a matter of basic fairness of procedures, the Minister needs to be specific in an initial decision as to his specific expectations, if he expects that particular documentation will be produced; (iii) it did not accept that the conclusion follows logically from the preceding text; (iv) save as regards the fact that there were multiple medical invoices, there was nothing to indicate that the Minister had not considered any of the documentation provided; (v) it would refer to its observations re. (i); (vi) this contention was not borne out by the evidence before it; (vii) such deficiencies as present in the impugned decision had already been identified; and (viii) it did not see that the Minister had so proceeded.

Barrett J held that, given the deficiencies identified above, the court would grant the order of certiorari sought and remit the matter to the Minister for further consideration.

Order granted.

JUDGMENT of Mr Justice Max Barrett delivered on 11th July, 2019.

I. Introduction.

1 On 22.04.2016, the applicants submitted a visa application based on the first-named applicant being a ‘ qualifying family member’ of an EU citizen (the second applicant, a UK national, who was then residing in the United Kingdom). The first-named applicant and the second-named applicant are mother and daughter. At the time of the visa application, the applicants had intended to move to Ireland in July 2016 or as soon as possible thereafter. In the end, it took until August 2017 before the second-named applicant was registered with the Irish Medical Council. The following year, she took up employment with a Dublin hospital and remains employed there today.

2 To be a ‘ qualifying family member’ for the purposes of the EC (Free Movement of Persons) Regulations 2015, the first-named applicant must be ‘ a dependent direct relative in the ascending line of the Union citizen’ (reg.3(5)). In his review decision of 31.10.2018 (the “Impugned Decision”), the Minister concluded, for the reasons stated therein, that ‘I am not satisfied that you are dependent on your sponsor’. The within proceedings have ensued.

II. Some Law

3 What does it mean to be ‘ dependent’ within the meaning of reg.3(5)? There is no definition of the word in the 2015 Regulations or in the Citizens” Rights Directive ( Directive 2004/38), the directive that the regulations seek to transpose. However, some (limited) guidance is to be found in the case-law of the Court of Justice. So, for example:

□ in Case 316/85 Lebon, a case in which the Court of Justice considered the notion of dependency in legislation since replaced by the Citizens” Rights Directive, the Court (at para.22) refers to the status of dependency...