Khan v Minister for Justice Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 27 October 2017
• Neutral Citation: [2017] IEHC 800
• Docket Number: [2015 No. 676 J.R.]
• Court: High Court
• Date: 27 October 2017

BETWEEN

MOHAMMAD KHAN, MAHNAZ KHAN,

MOHAMMAD SHUMAR KHAN

AND

MALKA KHATOON

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

[2017] IEHC 800

Faherty J.

[2015 No. 676 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration and Nationality - Refusal of visa application - Documentary evidence - EU Directive 2004/38/EC ('2004 Directive') - Telescoped hearing 'Judicial review' Incorrect test

Facts: The applicants sought judicial review of the two decisions of the respondent in which the applications of the third and fourth named applicants to enter the State had been refused. The applicants argued that an incorrect test was applied in determining the third and fourth named applicants' degree of dependency on the first and second named applicants. The applicants also argued that it was only at the appeal stage that the respondent had raised a number of queries, which could have been raised earlier. The respondent contended that the applicants had submitted insufficient documentary evidence in lieu of their visa applications.

Ms. Justice Faherty granted orders of certiorari in both the decisions. The Court held that the respondent had applied the wrong test to establish the degree of the third and fourth named applicants' dependency. The Court stated that the third and fourth named applicants fell within the definition of 'qualified family members' under the 2004 Directive and thus, they were entitled to enter and reside in the State under the 2004 Directive.

JUDGMENT of Ms. Justice Faherty delivered on the 27th day of October, 2017

1 This is a telescoped hearing in which the applicants seek judicial review of two decisions of the respondent dated 6th October, 2015, respectively, refusing the applications of a third and fourth named applicants to enter the State. The background to the within application is as follows.

2 The first applicant is a national of the UK and an EU citizen having been approved for naturalisation in the UK 2014. He is married to the second applicant who is also a national of the UK and a Union citizen.

3 The first and second applicants now reside in Ireland and own the residence at which they reside.

4 Since the first applicants arrival in the State he has worked as a taxi driver. He is also a part-time student. Since her arrival in the State the second applicant has worked as an accountant and has been employed as a senior accountant since 2009 in a permanent position.

5 The first and second applicant's have four children who are all UK nationals and who reside in the family home with them.

6 The third and fourth applicants are nationals of Pakistan and are the parents of the first applicant. The third and fourth applicants are married and were born on 15th October, 1945 and 15th December, 1956, respectively. The third and fourth applicants are said to reside in rental accommodation in Pakistan.

7 In early 2013, an application was made for visas for the third and fourth named applicants to enter the State. On 12th February, 2013, the Visa Section of the respondent's department wrote to the first and second named applicants requesting certain information in order to process the visa applications. In particular, the respondents sought the following: recent six months bank statements for the third and fourth applicants; evidence of any other family members residing in Pakistan or in any other country; evidence of the third and fourth named applicants' birth; details of their current residence; evidence of their income including any pension they might be receiving; and evidence of the first and second applicants' link to the third and fourth applicants. Details of the third and fourth applicants' health status were also sought.

8 The visa applications were refused by the respondent by letter of 14th May, 2013. The reason given for the refusal was that the evidence provided in respect of finances was deemed insufficient or incomplete and because of inconsistencies/contradictions in the information supplied.

9 On 1st July, 2014, the second applicant submitted a fresh visa application which stated that the third and fourth applicants were dependant on her and on the first applicant. Included with the application were details pertaining to the first and second named applicants' passports, birth certificates, marriage certificate together with evidence of their employment and recent bank statements in respect of both of them. Details of the first and second applicants medical insurance was also included as was documents evidencing transfers of money to the third and fourth named applicants in Pakistan.

10 These applications were refused on 1st October, 2014. The respondent found, inter alia, that it had not been demonstrated that the third and fourth applicants were totally dependent on the first and second applicants. Reference was made to the third applicant being in receipt of a monthly pension in Pakistan. It was also pointed out that no complete bank statement or other evidence had been provided by either the third or fourth applicants by way of proof that they were totally dependent, or to the extent to which they were dependent on the first and second named applicants. It was also pointed out that no evidence of household finances, bills or day to day expenditure was provided for any of the addresses given by the third and fourth applicants.

11 In 2015, a third application for short stay visas was submitted in respect of the third and fourth applicants with assistance from IK Immigration Consultants based in Dublin.

12 The applicants included with their applications documentary evidence of financial support from the first and second applicants, evidence of their relationship to the first and second applicants, a rental deed in respect of their residence in Pakistan, documentary evidence of the financial position of the first and second applicants and a bank account statement in respect of the fourth named applicant.

13 Included in the bundle of documentation was a medical report from Dr. Atif Abbas stating that the third named applicant had a history of heart disease and which set out details of his medical prescriptions.

14 The application also included an affidavit from a Mr. Qureshi who averred that he was a friend of the first applicant and that he had in the past transferred money to the third applicant on the instructions of the first applicant.

15 The visa applications were refused by letters dated 2nd July, 2015, respectively to the third and fourth applicants.

16 The letter addressed to the third applicant stated that he had not provided documentary evidence that he was a dependent of the first and second applicants. Money transfers were noted by the respondent but it was stated that 'money transfers in isolation are not proof of dependency'. It was also noted that the third applicant had not provided bank statements or other evidence as to the extent on which he was dependent on the first and second applicants. It was re-stated that the third applicant was in receipt of a monthly pension in Pakistan and therefore not dependent on the first and second applicants. The Visa Officer was of the opinion that the third applicant had more than one source of income. It was also stated that no explanation had been provided as to the relationship between the third applicant and Mr. Qureshi and that no official explanation had been given for the change of address on a bank statement provided by the fourth applicant. It was also noted that a permanent address given on the first applicant's birth certificate was the same as that given on the third applicant's pension book which, it was stated, suggested that he had retained ownership of this property. It was again pointed out that no evidence of household finances, bills or day to day expenditure was provided for any address given in respect of the third and fourth applicants. It was further noted that the medical report which had been submitted was from the third applicant's son-in-law and that an independent medical report would be required.

17 The letter addressed to the fourth named applicant was in similar terms.

18 Subsequent to these refusals the third and fourth applicants exercised their right of appeal and by letter dated 27th August, 2015, IK Immigration Consultants submitted an appeal on their behalf.

19 It was submitted that the third and fourth applicants fell into the category of 'qualified family members' within the meaning of EU Directive 2004/38/EC ('the 2004 Directive'). The case was made that the third and fourth applicants lived alone in rented accommodation and a certified copy of a rent agreement in respect of this accommodation was attached for the respondent's reference. The respondent was advised that the monthly rent was PKR 30,000. Certified copies of utility bills for the said accommodation in the name of the lessor's agent were enclosed. It was explained that the applicants were not permitted to add their names on the utility bills. Enclosed also were affidavits from the third and fourth applicants wherein details of their expenditure was explained. The fact of the third applicant's pension book bearing the same address as that which appeared on the first applicant's birth certificate was explained on the basis that that was the village from which the third applicant originated. It was further submitted that in light of his affidavit it was clear that the third applicant's pension was not enough to meet day-to-day expenses and that the details of the applicants' expenditure, together with the third applicant's medical condition, showed that the third and fourth applicants could not survive without financial assistance from the first and second applicants. In light of the issue taken with Dr. Abbass' medical report, a medical report from Dr. Gondal was enclosed with the...