Khan v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 11 July 2019
• Neutral Citation: [2019] IEHC 518
• Docket Number: 2018 No. 886 JR
• Court: High Court
• Date: 11 July 2019

Between:

NAJEEBA KHAN, HINA KHAN (a minor suing through his father and next friend MOHAMMED TAHIR KHAN), IMRAM KHAN (a minor suing through his father and next friend MOHAMMED TAHIR KHAN), NAGEENA KHAN (a minor suing through his father and next friend MOHAMMED TAHIR KHAN)

and

MOHAMMED TAHIR KHAN

Applicants

– and –

THE MINISTER FOR JUSTICE AND EQUALITY

Respondent

[2019] IEHC 518

2018 No. 886 JR

THE HIGH COURT

Visa applications – Abuse of rights – Certiorari – Applicants seeking orders of certiorari – Whether there was factual basis for conclusions reached by the respondent

Facts: The fifth applicant, Mr Khan, a UK national living in London, claimed that he intended to come to work in Ireland. However, he wished to come in the company of the first, second, third and fourth applicants, his wife and children, who are Afghan nationals resident in Afghanistan. Because Mr Khan’s wife and children required visas to come to Ireland from Afghanistan, they applied for those visas from within Afghanistan. The respondent, the Minister for Justice and Equality, refused the said visa applications on the basis that Mr Khan was engaged in an abuse of rights. The applicants sought orders of certiorari.

Held by the High Court (Barrett J) that the Minister is entitled to keep a watch out for abuses of rights but any conclusion that a person is engaged in an abuse of rights must be rooted in fact and in this case there was no factual basis for the conclusions reached.

Barrett J held that he would grant the orders of certiorari sought.

Orders granted.

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

1 Mr Khan, a UK national living in London, claims that he intends to come to work in Ireland. However, he wishes to come in the company of his wife and children, who are Afghan nationals resident in Afghanistan.

2 Under the EC (Free Movement of Persons) Regulations 2015, Mr Khan's wife and children may be ‘ qualifying family members’ within the meaning of reg.3(5). If they are, the norm under reg.4(2) is that they may enter Ireland, the exceptional is that they may be refused permission to enter (i) in the circumstances identified in reg.4(2), or (ii) because the EU citizens on whom they are “piggybacking” their entry do not come within reg.3(1). Because Mr Khan's wife and children in any event require visas to come here from Afghanistan, they have applied for these visas from within Afghanistan.

3 The Minister has refused the said visa applications on the basis that Mr Khan is engaged in an abuse of rights. (‘ On the basis of an examination of the facts available to me, I am not satisfied that your Union citizen sponsor seeks to exercise his free movement rights in a genuine and effective manner…’). However, the court sees nothing in the facts that went before the Minister to support this conclusion. Yes, apart from joining in the within proceedings – a not inconsiderable step – Mr Khan has done nothing further about coming to Ireland in terms, e.g., of arranging a job, arranging accommodation, arranging schooling for his children. But there is no requirement that, before exercising his freedom of movement rights to come to Ireland, an EU national should make efforts to arrange such matters. If a man is not required by law to do something, he is not required to do it, and it cannot be held against him when he does not do that which he is free at law not to do, yet...