Mehmood v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice David Keane |
| Judgment Date | 26 June 2019 |
| Neutral Citation | [2019] IEHC 466 |
| Court | High Court |
| Docket Number | [2017 No. 491 JR] |
| Date | 26 June 2019 |
[2019] IEHC 466
THE HIGH COURT
JUDICIAL REVIEW
Keane J.
[2017 No. 491 JR]
Judicial review – Residence card – Permitted family member – Applicant seeking judicial review of a decision by the respondent to uphold on review a first instance decision to refuse the applicant’s application for a residence card as a permitted family member of his brother – Whether the respondent erred in law in failing to set out reasons for his determination that the applicant had failed to establish that he was a member of the household of his brother in the country from which he had come
Facts: The applicant, Mr Mehmood, a national of Pakistan, applied to the High Court seeking judicial review of a decision by the respondent, the Minister for Justice and Equality, dated 11 April 2017, under Regulation 25 of the European Communities (Free Movement of Persons) Regulations 2015, to uphold on review a first instance decision of 3 March 2016 to refuse the applicant’s application for a residence card as a permitted family member of his brother, Mr Mahmood, a British - and, hence, European Union – citizen, exercising free movement rights in the State. The three grounds upon which Mr Mehmood impugned the decision were the following: first, the Minister erred in law in failing to set out reasons for his determination that Mr Mehmood had failed to establish that he was a member of the household of Mr Mahmood in the country from which he had come; second, the Minister erred in law in failing to set out the test to be applied in determining whether Mr Mehmood was a member of the household of Mr Mahmood in the country from which he had come; and third, the Minister erred in law because the manner in which he approached the determination of whether Mr Mehmood qualified as a permitted family member of Mr Mahmood under Regulations 2(1), 3(6) and 5(1) of the 2015 Regulations (transposing the requirements of Article 3(2) of the Citizens’ Rights Directive concerning ‘other family members’), deprived that provision of European Union law of its effect, thereby breaching the principle of effectiveness.
Held by Keane J that the Minister did not disclose the essential rationale for his decision that the evidence submitted by Mr Mehmood failed to establish that he was a member of the household of Mr Mahmood in the United Kingdom. Keane J held that this rationale was not patent from the terms of the decision, nor was it capable of being inferred from its terms and its context. He held that this was not a case in which the reason for that conclusion was obvious. He held that the Minister’s decision could not stand.
Keane J held that he would grant an order of certiorari quashing the decision, remit the matter to the Minister for reconsideration and hear the parties on any appropriate ancillary order and on the consequential orders that should follow.
Order granted.
This is the judicial review of a decision by the Minister for Justice and Equality (“the Minister”), dated 11 April 2017 (“the decision”), under Regulation 25 of the European Communities (Free Movement of Persons) Regulations 2015 (“the 2015 Regulations”), to uphold on review a first instance decision of 3 March 2016 to refuse the application of Qaiser Mehmood, a national of Pakistan, for a residence card as a permitted family member of his brother Khalid Mahmood, 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 essence, the reason the Minister gave for the decision is that Mr. Mehmood failed to establish that he is a “permitted family member” of Mr. Mahmood, within the meaning of that term under Regulations 2(1), 3(6) and 5(1) of the 2015 Regulations (transposing the requirements of Article 3(2) of the Citizens” Rights Directive concerning “other family members”), because he failed to establish that in the United Kingdom (as the country from which he had come), he was either: (a) a dependant of Mr. Mahmood, as a Union citizen; or (b) a member of the household of Mr. Mahmood, as a Union citizen.
The application is based on a statement of grounds dated 19 June 2017, grounded principally on an affidavit of Mr. Mehmood, sworn on 8 June 2017, accompanied by an affidavit of an Urdu translator, sworn on the same date. Having omitted to exhibit the decision under challenge ( i.e. the single most important document in these proceedings) to his original grounding affidavit, Mr. Mehmood swore a supplemental affidavit for that purpose on 15 June 2017. No translator's affidavit accompanied Mr. Mehmood's supplemental affidavit but that may be just as well since, as Cooke J made clear in Saleem v Minister for Justice [2011] 2 IR 386 (at paras. 31 – 35), such affidavits are not appropriate. Each of Mr. Mehmood's two affidavits was sworn without any certificate in the jurat of the kind required under O. 40, r. 14 of the Rules of the Superior Courts. No attempt was made to have Mr. Mehmood swear an affidavit in Urdu. It seems clear, therefore, that neither of those affidavits was sworn in accordance with the correct procedure for adducing evidence on affidavit from a witness who speaks neither English nor Irish, as explained by Cooke J in that case. Wholly exceptionally, I propose to overlook that difficulty in this case, principally because the matters at issue between the parties turn on the correspondence between them in circumstances where the nature and contents of that correspondence are not in dispute. My decision in that regard is not intended as a precedent of any kind. The normal course, where the correct procedure has not been followed, is to rule the contents of any such affidavit and any exhibits to it inadmissible.
By Order made on 19 June 2017, O'Regan J granted Mr. Mehmood leave to seek the certain of the reliefs identified in his statement, on the grounds specified in it. Principal among those reliefs is an order quashing the Minister's decision of 11 April 2017.
The relevant order sought in the original statement of grounds and, hence, the order Mr. Mehmood was granted leave to seek is one “quashing the unsuccessful review of the negative decision by the [Minister] on [Mr. Mehmood's] application under the European Communities (Free Movement of Persons) Regulations 2006 and 2008 [“the 2006 Regulations”], communicated by letter dated 11 April 2017.” That is erroneous because, as the decision recites on its face, it was made in accordance with Reg. 25 of 2015 Regulations. Under Reg. 31(28) of the 2015 Regulations, the 2006 Regulations continued to apply to a review sought before those Regulations came into operation on 1 February 2016, but in this case the first instance decision was made on 3 March 2016 and the Minister received Mr. Mehmood's request for a review of it on 21 March 2016. However, nothing turns on it.
Leaving aside boilerplate grounds of the unhelpfully broad or general type deprecated by the Supreme Court in A.P. v Director of Public Prosecutions [2011] 1 IR 729 (at 732-3) and by this Court in Lofinmakin (a minor) v Minister for Justice & Ors [2011] IEHC 38, (Unreported, High Court (Cooke J), 1st February, 2011) (in this case, unspecified want of legality and fairness, failure to consider unspecified relevant facts, and consideration of unspecified irrelevant facts), the three ground upon which Mr Mehmood impugns the decision are the following. First, the Minister erred in law in failing to set out reasons for his determination that Mr Mehmood had failed to establish that he was a member of the household of Mr Mahmood in the country from which he had come. Second, the Minister erred in law in failing to set out the test to be applied in determining whether Mr Mehmood was a member of the household of Mr Mahmood in the country from which he had come. And third, the Minister erred in law because the manner in which he approached the determination of whether Mr Mehmood qualified as a permitted family member of Mr Mahmood under Regulations 2(1), 3(6) and 5(1) of the 2015 Regulations (transposing the requirements of Article 3(2) of the Citizens” Rights Directive concerning “other family members”), deprived that provision of European Union law of its effect, thereby breaching the principle of effectiveness.
The Minister delivered an undated statement of opposition, joining issue with Mr. Mehmood on each of the grounds he has raised. It is supported by an affidavit, sworn on 10 November 2017 by Sinead Murphy, a higher executive officer in the Irish Naturalisation and Immigration Service, which is part of the Department of Justice and Equality.
In his grounding affidavit, Mr. Mehmood provides the following account of his immigration history.
He was born in Pakistan on 7 September 1991 and is a Pakistani citizen. His brother, Khalid Mahmood, was born in Pakistan on 10 March 1976 and is a naturalised British citizen. Mr. Mehmood entered the United Kingdom on a student visa on 24 January 2011. Mr. Mahmood had by then been living in the UK for 20 years, where he was married with four children. Mr. Mehmood lived with his brother as a member of his household until, for whatever reason, they travelled to Ireland together on 10 May 2015, where Mr. Mahmood obtained employment as a carpenter...
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