Holland v The Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 31 March 2023
• Neutral Citation: [2023] IECA 74
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2020/113CA

Between:

Raymond Holland

Applicant/Appellant

and

The Minister for Justice and Equality

Respondent

[2023] IECA 74

Faherty J.

Ní Raifeartaigh J.

Binchy J.

Record Number: 2020/113CA

THE COURT OF APPEAL – UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Binchy delivered on the 31 ^st day of March 2023

1 . This is an appeal from a judgment of the High Court (Barrett J.) in two separate but closely related proceedings bearing High Court record numbers 2018/1023JR (the “2018 Proceedings”) and 2019/312JR. In the 2018 Proceedings, the appellant sought an order of mandamus compelling the respondent to determine the appellant's application for a review of a decision of the respondent of 30 ^th March 2017 (the “First Decision”), whereby the respondent declined to issue a residence card to the appellant's stepdaughter, and also a declaration that the failure to determine the review application within a reasonable period of time was in breach of the appellant's right to an effective remedy and/or good administration as provided by EU law.

2 . Before the 2018 Proceedings came on for hearing, the respondent, on 29 ^th March 2019, issued a determination of the appellant's request for a review of the First Decision, whereby the respondent confirmed the First Decision and affirmed the refusal to issue a residence card to the appellant's stepdaughter. The appellant then sought leave to issue judicial review proceedings whereby he sought, inter alia, an order of certiorari quashing the decision of the respondent dated 29 ^th March 2019 (the “Impugned Decision”), and leave to do so was granted by Humphreys J. in the High Court on 24 ^th June 2019. Both proceedings came on for hearing before Barrett J. on 4 ^th December 2019, who delivered a single judgment addressing both proceedings on 9 ^th December 2019. This judgment is concerned with the challenge to the Impugned Decision (High Court record no. 2019/312JR) and a separate judgment is being delivered concurrently in the 2018 Proceedings.

3 . More specifically, these proceedings are mainly concerned with whether or not the respondent, in considering an application for a residence card received from a descendant over the age of 21 years who claims dependency on an EU citizen, is entitled to require evidence of that dependency in the country from which the applicant arrived into the State.

Background.

4 . The appellant is a UK national who has resided in the State since 2005 with his wife, a Vietnamese national who is also an Irish citizen. The appellant's wife's daughter, i.e. the appellant's stepdaughter, whose name is Nguyen Thi Kim Tháo (hereafter Ms. Tháo), arrived in the State on 9 ^th June 2016, having been issued with a tourist visa permitting her to stay in the State for 90 days. In the course of applying for that visa, Ms. Tháo gave an undertaking to leave the State before the expiration of the 90-day period.

5 . Instead, however, less than three weeks later, on 29 ^th June 2016, Ms. Tháo made an application for a residence card pursuant to Article 7 of the European Communities (Free movement of Persons) Regulations 2015 (the “Regulations), on the basis that she is a dependent of the appellant and is therefore a “qualifying family member” of the appellant, as that term is defined in the Regulations. At the time of her entry to the State Ms. Tháo was 29 years of age.

6 . In July 2016, the respondent sought further information in connection with the application. A response was provided by the appellant in November 2016. The application was refused by the respondent in the First Decision, on 30 ^th March 2016, on the ground that Ms. Tháo had failed to provide the respondent with sufficient documentary evidence of her claimed dependency on the appellant. Ms. Tháo then submitted a request for review of the First Decision on 10 ^th April, 2017. Following further requests for information by the respondent, and the provision of same by Ms. Tháo, the respondent issued the Impugned Decision on 29 ^th March 2019, whereby the respondent declined the request for review of the First Decision. Throughout the process, Ms. Tháo was at all times assisted by her solicitors.

The Legislation

Directive 2004/38/EC – The Citizens Directive

7 . The free movement rights and entitlements of Union citizens and their family members, and the duties of Member States in regard thereto are provided for in Directive 2004/38/EC of the European Parliament and of the Council of 29 ^th April 2004 (the “Directive”) commonly known as the Citizens Directive. So far as is material to these proceedings, the following provisions of the Directive are of relevance:

Preamble

“(3) Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons …. in order to simplify and strengthen the right of free movement and residence of all Union citizens….

(5) The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. For the purposes of this Directive, the definition of “family member” should also include the registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage.

(6) In order to maintain the unity of the family in a broader sense …the situation of those persons who are not included in the definition of family members…should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.

General Provisions

Article 1

This Directive lays down:

• (a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;

• (b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;

• (c) the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health.

Article 2

Definitions

For the purposes of this Directive:

• 1) “Union citizen” means any person having the nationality of a Member State;

• 2) “Family member” means:

  • (a) the spouse;

  • (b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;

  • (c) the direct descendants who are under the age of 21 or are dependents and those of the spouse or partner as defined in point (b);

  • (d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

• 3) “Host Member State” means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence.

Article 3

Beneficiaries

1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

• (a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependents or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

• (b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

Article 10

Issue of residence cards

1. The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called “Residence card of a family member of a Union citizen” no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.

2. For the residence card to be issued, Member States shall require presentation of the following documents:

• (a) a valid passport;

• (b) a document attesting to the existence of a family relationship or of a registered partnership;

• (c) the registration certificate or, in the absence of a registration system, any other proof of residence in the host Member State of the Union citizen whom they are accompanying or joining;

• (d) in cases falling under points (c) and (d) of Article 2(2), documentary evidence that the conditions laid down therein are met;

• (e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependents or members of the household of the Union citizen, or proof of the existence of serious health grounds which strictly require the personal care of the family member of the Union citizen;

• (f) in cases...