Gul v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr Justice David Keane |
| Judgment Date | 21 December 2018 |
| Neutral Citation | [2018] IEHC 778 |
| Court | High Court |
| Docket Number | [2017 No. 398 JR] |
| Date | 21 December 2018 |
[2018] IEHC 778
THE HIGH COURT
JUDICIAL REVIEW
Keane J.
[2017 No. 398 JR]
Judicial review – Residence card application – Permitted family member – Applicant seeking judicial review of respondent’s decision – Whether respondent’s decision was irrational or unreasonable
Facts: The applicant, Ms Gul, a national of Pakistan, applied to the High Court for judicial review of a decision by the respondent, the Minister for Justice and Equality, dated 20 April 2017, under Reg. 25 of the European Communities (Free Movement of Persons) Regulations 2015, to uphold on review a first instance decision of 13 April 2016, under Reg. 7(5) of the 2015 Regulations, to refuse her application for a residence card as a permitted family member of her brother Mr Khan, a British - and, hence, European Union – citizen, exercising free movement rights in the State. The reason the Minister gave for the decision was that Ms Gul failed to establish that she was a ‘permitted family member’ of Mr Khan, within the meaning of that term under Regulations 2(1) and 3(6) of the 2015 Regulations, because she failed to establish that in the People’s Republic of China (as the country from which she had come), she was either: (a) a dependant of Mr Khan, as a Union citizen; or (b) a member of the household of Mr Khan, as a Union citizen. By order made on 22 May 2017, O’Regan J granted Ms Gul leave to seek an order of certiorari quashing the Minister’s decision on the grounds: first, that it was irrational or unreasonable; and second, that it was made in breach of Ms Gul’s entitlement to natural and constitutional justice and fair procedures, in each instance because no, or no adequate, reasons were provided for it. The Minister delivered a statement of opposition dated 29 September 2017, contending that Ms Khan was given clear reasons for the decision.
Held by Keane J that the Minister’s reasons for the decision may have been terse but the test the Minister was required to apply was a straightforward one and the evidence produced by Ms Gul in an attempt to meet it was, in the Minister’s view, non-existent in relation to her membership of Mr Khan’s household in China and unsatisfactory in relation to her dependence on Mr Khan there. Thus, it seemed to Keane J that the Minister provided clear and cogent reasons for the decision on review to confirm the decision not to grant Ms Gul a residence card; for that reason, Ms Gul’s challenge to the Minister’s decision on the basis that no adequate reasons were provided for it could not succeed. Nor could Keane J find anything in the decision to suggest that the reasons given for it failed the test of reasonableness under the well-established Keegan and O'Keefe principles, confirmed by the Supreme Court in Meadows v Minister for Justice [2010] 2 IR 701.
Keane J held that Ms Gul’s application for judicial review would be dismissed.
Application dismissed.
This is the judicial review of a decision by the Minister for Justice and Equality (“the Minister”), dated 20 April 2017 (“the decision”), under Reg. 25 of the European Communities (Free Movement of Persons) Regulations 2015 (“the 2015 Regulations”), to uphold on review a first instance decision of 13 April 2016, under Reg. 7(5) of the 2015 Regulations, to refuse the application of Iram Gul, a national of Pakistan, for a residence card as a permitted family member of her brother Muhammad Khan, a British - and, hence, European Union – citizen, exercising free movement rights in the State.
The 2015 Regulations were 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”). They came into operation on 1 February 2016.
In substance, the reason the Minister gave for the decision is that Ms Gul failed to establish that she is a “permitted family member” of Mr Khan, within the meaning of that term under Regulations 2(1) and 3(6) of the 2015 Regulations (transposing the requirements of Article 3(2) of the Citizens” Rights Directive concerning “other family members”), because she failed to establish that in the People's Republic of China (as the country from which she had come), she was either: (a) a dependant of Mr Khan, as a Union citizen; or (b) a member of the household of Mr Khan, as a Union citizen.
The application is based on a statement of grounds dated 15 May 2017, supported by an affidavit of Ms Gul, sworn on the same date.
By order made on 22 May 2017, O'Regan J granted Ms Gul leave to seek an order of certiorari quashing the Minister's decision on the grounds: first, that it was irrational or unreasonable; and second, that it was made in breach of Ms Gul's entitlement to natural and constitutional justice and fair procedures, in each instance because no, or no adequate, reasons were provided for it.
The Minister delivered a statement of opposition dated 29 September 2017. It is supported by an affidavit of verification, sworn on 25 September 2017 by Tony Dalton, an assistant principal officer in the Department of Justice and Equality. The Minister contends that Ms Khan was given clear reasons for the decision.
Ms Gul, who gives her date of birth as 15 August 1986, claims to have entered the State on 5 March 2013 and to reside here with her brother, Muhammad Khan, and his wife, Mahnaz Khan (who is, hence, Ms Gul's sister-in-law), as both a dependent and member of the household of Ms Khan. Ms Gul tersely avers that she had previously resided in China, where she attended university.
On 24 June 2013, through her solicitors, Ms Gul, who was then 26 years old, submitted an application for a residence card as a family member of Ms Khan to the Immigration and Naturalisation Service (“the INIS”) within the Department of Justice and Equality. The cover letter from those solicitors asserted that Ms Gul was both a dependant and member of the household of Ms Khan, a British - and, hence, Union - citizen. It would appear that Muhammad Khan, Ms Gul's brother and Ms Khan's husband, was at that time a citizen of Pakistan.
The cover letter goes on to submit that, under the applicable law, there was no obligation on Ms Gul to show evidence of her dependency upon Ms Khan prior to her entry into the State, although, without prejudice to that unsupported submission, a letter from Ms Khan was enclosed in which she asserts that she and Mr Khan have been “fully supporting Iram Gul for the past 6 years during her medical education in China.”
The INIS acknowledged receipt of that application on 30 July 2013.
On 28 November 2013, the INIS wrote to Ms Gul to inform her that the Minister had decided to refuse her application for a residence card for the following reasons:
“You have failed to submit satisfactory evidence that you are a family member of an EU citizen in accordance with Regulation 2(1) of [the 2015 Regulations].
You did not submit the necessary documents which were requested on 30/07/2013 - Evidence of dependence on the EU citizen, including dependence prior to residing in the State OR evidence of membership of the EU citizen's household prior to residing in the State….”
By letter dated 10 December 2013, the solicitors for Ms Gul wrote to the INIS, enclosing a completed application form requesting a review of the Minister's decision to refuse to grant Ms Gul a residence card as a family member of a Union citizen exercising free movement rights. While the “grounds of review” section of that application form was left completely blank, the cover letter invokes the decision of the Court of Justice of the European Union (“CJEU”) in Case C-83/11 Secretary of State for the Home Department v Rahman ECLI:EU:C:2012:519 as authority for the proposition that “the notion of ‘dependent’ does not imply that dependency existed shortly before the Union national came to the host Member State”, before submitting that the current and prior financial dependency of Ms Gul on Ms Khan could be established through the documentary evidence already provided and further documentary evidence enclosed with the application for review.
On 16 January 2014, the INIS wrote to acknowledge receipt of Ms Gul's application for a review. On the issue of “evidence of dependence on [the] EU citizen prior to arrival in the State”, the INIS returned (thereby acknowledging receipt of) the following supporting documentation:
“- DEX international money transfer receipt for €95 dated 01/11/12
- Money Gram transfer receipt for $144 dated 14/11/2012
- Money Gram transfer receipt for $134 dated 08/12/2012
- Money Gram transfer receipt for $99.50 dated 13/02/2013”
The INIS letter also acknowledges receipt of documentation evidencing certain money transfers made by Mr Khan to Ms Gul prior to her arrival in the State (described further below) and certain payments made into Ms Gul's bank account after her arrival in the State, described on the relevant bank statements as “family support.”
The INIS letter contains a request for further supporting documentation from Ms Gul, including further evidence of dependence on Ms Khan prior to Ms Gul's arrival in the State. The solicitors for Ms Gul responded by letter dated 12 June 2014, enclosing what appears to be the documentation already submitted, together with very limited additional documentation, to evidence a small number of modest money transfers made by Ms Khan to Ms Gul.
On 22 July 2014, the INIS wrote to Ms Gul, informing her...
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