Farrukh Abbas and Fahad Abbas v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 26 January 2021
• Neutral Citation: [2021] IECA 16
• Docket Number: Record No. 2019/449
• Court: Court of Appeal (Ireland)
• Date: 26 January 2021

Between:

Farrukh Abbas and Fahad Abbas

Applicants/Respondents

and

Minister for Justice and Equality

Respondent/Appellant

[2021] IECA 16

Donnelly J.

Noonan J.

Binchy J.

Record No. 2019/449

THE COURT OF APPEAL

Residence card – Permitted family member – Dependence – Appellant appealing from a High Court decision granting an order of certiorari of the appellant’s decision refusing the second respondent’s application for a residence card – Whether the trial judge erred in his conclusion that the appellant erred in fact or in law in finding that the second respondent was not dependent on the first respondent

Facts: The appellant, the Minister for Justice and Equality, appealed to the Court of Appeal from a decision of Barrett J in the High Court of 26th September 2019, whereby he granted an order of certiorari of a decision of the appellant made on 13th November 2018, by which he refused the application of the second respondent, Mr Fahad Abbas, for a residence card, which application was made on the basis that the second respondent, is, as a matter of law, a “permitted family member” of the first respondent, Mr Farrukh Abbas, as that term is defined in Article 2 of the European Communities (Free Movement of Persons) Regulations 2015 (SI 548 of 2015). The trial judge further ordered that the application be remitted to the appellant for further consideration. The appeal raised three central questions, and it was on this basis the appeal proceeded. These were: (1) Whether the trial judge was correct in determining that, for the purpose of reg. 5 (1) of the Regulations, and Article 3(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29th April 2004, on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States, Ireland is the place from which the second respondent “has come”? (2) Whether or not the trial judge erred in his conclusion that the appellant, in making the impugned decision, erred in fact or in law, and acted unreasonably and, to a certain extent irrationally, in finding that the second respondent was not dependent on the first respondent? (3) Whether or not the trial judge erred in appearing to hold that the appellant was obliged to accept that unsworn statements submitted with the application by the respondents constituted documentary evidence within Article 10(2) of the Directive and reg. 5 of the Regulations?

Held by Binchy J that it was neither unreasonable nor irrational on the part of the appellant to conclude that he was not satisfied that the second respondent was dependent on the first respondent while the former resided in Pakistan, the country from which he came, from November 2011 to January 2014, when he arrived in the State; that being the case, it was unnecessary to consider the question of dependency in Ireland, it being secondary to the requirement to establish dependency in the country from which the second respondent had come.

Binchy J held that the appeal should be allowed and the order quashing the impugned decision should be vacated.

Appeal allowed.

UNAPPROVED

JUDGMENT of Mr. Justice Binchy delivered on the 26 ^th day of January 2021

1 . This is a judgment on an appeal from a decision of Barrett J. in the High Court of 26th September 2019, whereby he granted an order of certiorari of a decision of the appellant made on 13th November 2018, by which he refused the second named respondent's application for a residence card, which application was made on the basis that the second named respondent, is, as a matter of law, a “permitted family member” of the first named respondent, as that term is defined in Article 2 of the European Communities (Free Movement of Persons) Regulations 2015 (SI 548 of 2015) (the “Regulations”). The trial judge further ordered that the application be remitted to the appellant for further consideration.

2 . The Regulations, which came into operation on 1st February 2016, were made for the purpose of giving further effect to Directive 2004/38/EC of the European Parliament and of the Council of 29th April 2004, on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States (the “Directive”).

Background

3 . The respondents are brothers, born and raised in Pakistan. The first named respondent was born on 27th July 1981, and the second named respondent was born on 18th December 1987. The first named respondent resided in the United Kingdom from 10th April 2004 to November 2016. He became a naturalized citizen of the United Kingdom in September 2016.

4 . The second named respondent, upon his brother's invitation, joined the first named respondent in London on 29th July 2010, and the two brothers resided there until 21st November 2011, when the second named respondent returned to Pakistan. According to the respondents, during that time, the first named respondent paid all of his brother's outgoings, because the second named respondent was a full time student and had no other source of income. During this time, the second named respondent avers that he did a diploma in Business Administration in Essex College and Scotts College, the fees for which were paid for by the first named respondent.

5 . According to the respondents, when the second named respondent returned to Pakistan in November 2011, he continued to be financially dependent upon the first named respondent because he did not have employment in Pakistan. In their grounding affidavits, the respondents say that the first named respondent regularly sent money transfers both to the second named respondent and other family members. The second named respondent says that this is the only income that he had during this period. He says that their father was already supporting other siblings (including another brother and three sisters) and he, the second named respondent, did not wish to be a burden on his father and he therefore asked the first named respondent to support him while he was looking for work in Pakistan. In his grounding affidavit, the first named respondent avers that “sometimes the money was sent to my father, on behalf of the second applicant and my other family members, but mostly it was sent directly to the second applicant.”

6 . The second named respondent says that he was unable to obtain employment in Pakistan, and accordingly the first named respondent agreed to sponsor him in a move to this country, so that he could do further studies, get a degree and improve his employment prospects. Accordingly, the second named respondent moved to Ireland from Pakistan on a student visa on 28th January 2014. He undertook studies at various institutions, including a diploma in Management and Leadership in the Carlyle Institute; a diploma in Business Administration in Shelbourne College, Dublin; and a Bachelor's Degree in Business Administration in Dorset College, Dublin. The respondents say that the first named respondent paid for the fees of all of these courses, as well as other living expenses of the second named respondent. The various course fees, which were vouched, came to a total of €10,400.

7 . The first named respondent moved from the UK to Ireland in November 2016, approximately two years and 10 months after the arrival of the second named respondent. In his grounding affidavit of 10th January 2019, the first named respondent avers that he did so in order to set up a business. This business he describes as a wastage removals and cleaning service, which he carries on through a company called Fin Logic Services Limited, and which he avers that he formed on 15th February 2017. He avers that this company has been successful, and also that he continues to work for thirty-two hours per week in Circle K and that since 12th December 2018, he has been working full time with Deliveroo. He avers he does not actively work for his own company because he is busy with the latter two jobs.

8 . The first named respondent says that he paid all the fees of the courses undertaken by the second named respondent in the State referred to above. He avers that he gave the second named respondent spending money of approximately €500 per month and he also initially paid for the second named respondent's rent while he, the first named respondent was still living in the UK. However, since the first named respondent came to live here, he has paid the rent for both respondents.

9 . For a period after his arrival here, the second named respondent had employment and in his grounding affidavit, also of 10th January 2019, he says that he earned (on average) between €700 and €750 per month, and sometimes earned as much as €900 per month when he was able to work more hours. He says however that this income did not allow him to meet all of his basic needs and he was reliant upon the first named respondent to assist him with the rent, college fees and travel expenses. He avers that he gave up his part time employment in February 2017 because he was unable to focus on his studies while working and this caused him to fail his first year exams. As a result, he had to repeat the first year of his course. He says that he has had no other income, other than that which he has received from the first named respondent, since February 2017.

10 . On 4th May 2017, the respondents submitted an application, on behalf of the second named respondent, seeking a residence card (the “Application”). The Application was grounded upon the provisions of the Directive and the Regulations. The Application was refused by the appellant on 18th September 2017 (the “First Decision”), and the respondents requested a review of that decision. However, the appellant affirmed the First Decision upon review, by letter dated 13th November 2018 (the “Impugned Decision”).

11 . The respondents then made an application...