Rashid v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 10 June 2020 |
| Neutral Citation | [2020] IEHC 333 |
| Docket Number | [2018 No. 537 JR] |
| Court | High Court |
| Date | 10 June 2020 |
AND
[2020] IEHC 333
Richard Humphreys J.
[2018 No. 537 JR]
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Visa application – Permitted family member– Applicants seeking certiorari of review decision – Whether respondent was irrational, ultra vires and disproportionate
Facts: The second applicant, Mr Q Rashid, was born in Pakistan and is the brother of the first applicant, Mr A Rashid, a UK citizen. The first applicant entered the State. He seemed to have made some payments to the second applicant in 2012 to 2013, the last one being on 12th July, 2013. The second applicant left Pakistan on 16th April, 2015 on a flight from Pakistan to Abu Dhabi and thence to Dublin on 18th April, 2015. He appeared to have claimed to be both a visitor and a family member of an EU citizen. On 6th May, 2015, the second applicant made an application for a visa as a family member of an EU citizen. That was refused, and he was so notified on 27th November, 2015. The refusal was appealed on 16th December, 2015 and that review application was rejected in February 2017. The second applicant then brought a first set of judicial review proceedings [2017 No. 232 JR] which resulted in a consent order of certiorari. The matter was then referred back to the respondent, the Minister for Justice and Equality, and a reconsidered review decision was made on 25th April, 2018 refusing the review application. The Minister was not satisfied that the second applicant was a permitted family member under reg. 5(1) of the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015). The decision also enclosed a notification under s. 3 of the Immigration Act 1999. That review refusal was the subject matter of judicial review. The statement of grounds was filed on 4th July, 2018, the primary relief sought being certiorari of the review decision. Leave was granted on 9th July, 2018 and the case was then put into a holding list awaiting the decision of the appeal from the judgment in Kuhn v Minister for Justice and Equality [2013] IEHC 424. That appeal decision was handed down on 30th July, 2019 in V.K. v Minister for Justice and Law Reform [2019] IECA 232. The proceedings then returned to the asylum directions list and a statement of opposition was delivered dated 12th February, 2020. Grounds 1 to 11 in the statement of grounds were allegations of fact, and ground 14 had been withdrawn, so the challenge was based on grounds 12 and 13. Ground 12 contended as follows: “In Case C –423/12, Reyes, as referred to by this honourable Court in Khan v. Minister for Justice [2017] IEHC 800, the [CJEU] set out at paras. 24 –27 that [the statement of grounds quotes from that judgment]. Although the Reyes case concerned a descendant rather than a brother, evidence of regular payment of sums of money for a significant period, which are necessary in order for the dependent to support himself is sufficient to demonstrate financial dependence. In determining that notwithstanding that it is accepted that there is an element of financial assistance during that period that but that there was no dependence, the Respondent was irrational and ultra vires.” Ground 13 contended that “Further, the reasons offered by the Respondent are vague as the precise basis upon which he found that the evidence does not demonstrate dependence and by reason of same the Respondent was irrational, ultra vires and disproportionate”.
Held by the High Court (Humphreys J) that, using the language of the CJEU in Secretary of State for the Home Department v Banger, Case C-89/17 (12th July, 2018), he was satisfied that on the material before the Minister the decision was taken on a sufficiently solid factual basis and that the procedural safeguards were complied with.
Humphreys J held that the proceedings would be dismissed.
Proceedings dismissed.
The Citizens' Rights Directive 2004/38/EC is designed to ensure that the right of free movement is effective by allowing EU citizens to bring their dependents with them when they exercise that right. The directive seems, however, to have given rise to a cottage industry whereby once one family member manages to acquire EU citizenship, he or she can send any amount of money, modest or otherwise, to one or more other relatives, remote or otherwise, and then launch a legal right to enter the Union territory on the basis of dependency. Reliance on the directive in practice seems a far cry both from the test in the CJEU caselaw of a real situation of dependency and from the intention of the EU legislature which was that a person could bring their actual dependents and actual household members with them, not to confer some virtually open-ended right to family reunification that is triggered merely by a few financial transfers.
The first-named applicant is a UK citizen born in 1963. The second-named applicant is his brother and was born in Pakistan in 1967. It has not been clarified when the first-named applicant entered the State. He seems to have made some payments to the second-named applicant in 2012 to 2013, the last one being on 12th July, 2013.
Nearly two years later, the second-named applicant left Pakistan on 16th April, 2015 on an Etihad flight from Pakistan to Abu Dhabi and thence to Dublin on 18th April, 2015. The legal basis for his entry into the State is somewhat obscure, but he appears to have claimed to be both a visitor and a family member of an EU citizen.
On 6th May, 2015 the second-named applicant made an application for a visa as a family member of an EU citizen. That was refused, and he was so notified on 27th November, 2015. The refusal was appealed on 16th December, 2015 and that review application was rejected in February 2017. The second-named applicant then brought a first set of judicial review proceedings [2017 No. 232 JR] which resulted in a consent order of certiorari.
The matter was then referred back to the Minister and a reconsidered review decision was made on 25th April, 2018 refusing the review application. The Minister was not satisfied that the second-named applicant was a permitted family member under reg. 5(1) of the European Communities (Free Movement of Persons) Regulations 2015 ( S.I. No. 548 of 2015). The decision also enclosed a notification under s. 3 of the Immigration Act 1999. Unhelpfully, that was not exhibited and I am not clear what action, if any, was taken on foot of that document. That review refusal is the subject matter of the present judicial review.
The statement of grounds was filed on 4th July, 2018, the primary relief sought being certiorari of the review decision. Leave was granted on 9th July, 2018 and the case was then put into a holding list awaiting the decision of the appeal from the judgment in Kuhn v. Minister for Justice and Equality [2013] IEHC 424 (Unreported, High Court, Mac Eochaidh J., 22nd August, 2013). That appeal decision was handed down on 30th July, 2019 in V.K. v. Minister for Justice and Law Reform [2019] IECA 232 (Unreported, Court of Appeal, Baker J. (Irvine and Costello JJ. concurring), 30th July, 2019). The present proceedings then returned to the asylum directions list and a statement of opposition was delivered dated 12th February, 2020. I have now received helpful submissions from Mr. John Noonan B.L. for the applicants and from Ms. Sylvia Martinez B.L. for the respondents.
The Citizen's Rights Directive 2004/38/EC defines a “family member” in art. 2 as a Union citizen's spouse, partner, direct descendant who is either under the age of 21, or otherwise dependant, similar descendants of the spouse or partner and the Union citizen's dependent direct relatives in the ascending line as well as those of the spouse or partner.
Article 3, however, goes on to impose a right on a wider category of persons, providing in art. 3(2) that “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 dependants 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”. Article 3(2) goes on to say, “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.”
The 2015 regulations give effect to directive 2004/38/EC. As the 2004 directive does not define dependency, it is a necessary consequence that cognate terms are undefined in the 2015 regulations. The meaning of dependency is, therefore, definitively to be found in the CJEU jurisprudence, the most helpful summary of which is at paras. 19-28 of Case C-423/12 Reyes v. Migrationsverket (Court of Justice of the European Union, 16th January, 2014).
The CJEU jurisprudence is referred to in the Court of Appeal judgment in V.K., at para. 81 onwards under the heading “Summary of test”. Some of what follows under that heading contains a certain amount of paraphrase that isn't to be found in the judgment of the CJEU (counsel in the present case calls it Baker J.'s “own language”). Baker J. herself makes the point that the test has been phrased in different ways in different cases so the V.K. judgment should most certainly not be treated as a statute imposing another finer mesh of procedural and substantive legal complexity on top of the existing law. The really central point is the one she makes at para. 81 of her judgment that ...
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