MH and SH (A Minor Suing by Her Mother and Next Friend MH) v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 22 July 2019
• Neutral Citation: [2020] IEHC 360
• Docket Number: [2018 No. 788 JR]
• Court: High Court
• Date: 22 July 2019

BETWEEN

MH AND SH (A MINOR SUING BY HER MOTHER AND NEXT FRIEND MH)

APPLICANTS

- AND -

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2020] IEHC 360

Max Barrett

[2018 No. 788 JR]

THE HIGH COURT

JUDGMENT of Mr Justice Max Barrett delivered on 22nd July, 2020.

1 Ms MH is a Pakistani national. She lived in Pakistan until 2009. She married her husband in 1999. They had a daughter (Ms SH). Unfortunately, Ms MH's husband died in 2009. Previously, Ms MH's brother had emigrated to the United Kingdom in or about 2001, and at some point became a UK national. One theme that comes through the documentation in this case is the issue of DNA. There is a supplementary affidavit before the court sworn on 19 February 2019. At that stage a DNA test had been done at the request of the applicants. At para.3 of that affidavit, Ms MH avers, inter alia, as follows:

“3. I say that my solicitors…advised the Respondent by letter dated 26 September 2016 that the Applicants and our EU Citizen family member, my brother [named]…were willing to submit ourselves to DNA testing should the Respondent so require and I say this invitation was never taken up by the Respondent.

4. I say that the Respondent did not have sufficient regard to the various documents supporting the Applicants' application as a family member of my brother [named]. ..and I say that the Respondent should have taken up the Applicants' offer to submit ourselves to DNA testing.

5. I say that this Honourable Court was advised on 17 December 2018 that the Applicants...[would] be carrying out the requisite DNA testing and I say that by letter dated 28 January 2019 my solicitors…advised the Respondent that the Applicants would be undergoing the said DNA testing on 7 February 2019 utilising the services of [named provider]. ..in accordance with the letter dated 24 January 2019 issued to my brother..and I say that my solicitors provided the Respondent with the time, date and location of the said DNA testing should an officer of the Respondent wish to attend….

6. I say that the Respondent did not take up the offer to attend the said DNA testing.

7. I say that the Applicants together with my brother..attended at the offices of [named doctor and stated address]….

8. I say that two DNA tests were carried out, namely (1) a Maternity DNA Test involving the first-named applicant and the second-named applicant and (2) a sibling DNA test involving the first-named applicant and [her brother]….

9. I say that the results of the Maternity DNA Test Report dated 14 February 2019 is that the first named applicant is the biological mother of the second-named applicant…

10. I say that the results of the sibling DNA test dated 14 February 2019 is that the first-named applicant and [her brother] are full siblings….”.

2 The court accepts that the DNA evidence followed on the decision that is impugned in the within proceedings. However, the ultimate object of government and of any branch of government is to do what is lawful and right. Here, the review of the decision on the deportation order included words like “purported” in relation to the blood relationship between the applicants and Ms MH brother. That adjective clearly no longer applies after the DNA testing, albeit that that testing followed on the decision. The court admits to surprise that, in the course of these proceedings, the respondent has not elected to revisit the decision to deport in light of the fact that the DNA evidence shows that the applicants have been telling the truth all along as to their being blood relatives of Ms MH's brother. That being the truth, Ms MH's claims as to having been supported by and dependent upon her brother - claims which for so long have, at least implicitly, been disbelieved by the respondent - become so credible as, surely, to merit re-visitation of her application.

3 Ms MH's story, shortly put, is this. She was widowed in Pakistan. As a widowed mother she was in a precarious position until her brother stepped in to help her. He (a UK national) brought her first to the United Kingdom to live with him there. Then when he got a job here in Ireland, she came with him and has remained with him here, getting a maths-related qualification and putting her daughter through school (the daughter having now proceeded, the court understands, to further studies). In the verifying affidavit filed in support of the EU treaty rights application, there are circa. 150 pieces of documentation relating to the familial arrangements in the United Kingdom, including the financial support situation. It is very onerous that an applicant should be required or feel compelled to supply so much documentation, and it seems inconsistent with the notion of free movement that such a weight of information should fall to be provided. At some point, when it comes to permitted family members, the reference to “extensive examination” in reg.5(3) of the European Communities (Free Movement of Persons) Regulations 2015 appears to have become transmuted by the respondent into requiring an ‘exhaustive’ or ‘intensive’ (or even ‘exhaustively intensive’) examination whereas the word ‘extensive’ means merely wide-ranging or covering a large area.

4 In July 2014, the two applicants came with Ms MH's brother to Ireland, after he secured employment here. An EU treaty rights application took place on or about 1 May 2015. That application is the genesis of the within application. There is an enormous amount of documentation in support of that initial application and the court would reiterate in this regard the point that it made in the preceding paragraph. On 26 November 2015, the respondent refused the EU treaty rights application on the (surprising) basis that insufficient evidence of dependency on the EU national had been provided. On 14 December 2015, a review of this decision was sought. The letter seeking this review described the dependent relationship outlined in the preceding paragraphs, both as it existed in the United Kingdom and also in Ireland. A number of requests followed from the respondent seeking further information, which information was provided, some of it for the second time. It is inappropriate that the State should be provided with documentation and then raise a query which essentially seeks that the same documentation be provided to it a second time. In any event, in the course of this to-ing and fro-ing the applicants issued their offer to obtain DNA evidence at their expense. It is incomprehensible to the court that - in a context in which a DNA test result that was favourable to the applicants would essentially favour the version of events that they had recounted from the outset and in a context where, at least implicitly, the State was dubious as to the existence of the claimed relationship, and where the applicants (not wealthy people) were prepared to pay for the test themselves - the respondent did not welcome the offer and await the outcome of that test.

5 On 23 February 2017, the respondent wrote to Ms MH to indicate that the review had been unsuccessful, stating, inter alia, that “[Y] ou do not fulfil the criteria in respect of permitted family member as set out in Regulation 3(5) of the [European Communities (Free Movement of Persons) Regulations 2015]”. Regulation 3(5) has nothing to do with those criteria (it addresses who is a “qualifying family member”), so there was a clear error of law presenting in this regard and were that decision the subject of the within proceedings (it is not), it would have fallen on that ground. Additionally, the court accepts as true the observation made by counsel for the applicants at the hearing of the within matter that it is not clear what further evidence could have been provided, additional to the mountain of evidence that was provided, all of which supported the applicants' application. There is, the court notes in...