A.S. and Others v Minister for Justice
| Jurisdiction | Ireland |
| Judge | Ms Justice Bolger |
| Judgment Date | 24 April 2023 |
| Neutral Citation | [2023] IEHC 206 |
| Docket Number | Record No. 2022/1028 JR |
| Court | High Court |
[2023] IEHC 206
Record No. 2022/1028 JR
THE HIGH COURT
Visa applications – Certiorari – Fair procedures – Plaintiffs seeking an order of certiorari quashing the respondent’s decision refusing the first and second applicants’ visa applications – Whether the respondent failed to comply with fair procedures
Facts: The first and second applicants were nationals of India. The third applicant was a national of the United Kingdom, and the father of the first and second applicants. He moved to Ireland on or around 18 August 2015 and resided with his spouse and son who were granted visas to enter the State in 2019. On 13 November 2019, the applicants wrote to the respondent, the Minister for Justice, at the Embassy of Ireland in New Delhi to apply for Join Family (EEA national) visas for the first and second applicants, based upon the third applicant’s status as a Union citizen residing and exercising his right of free movement in the State and on the first and second applicants’ status as his dependents and therefore qualifying family members. By decision dated 16 December 2019, the respondent refused the visa applications. On 3 January 2020, the applicants submitted an appeal against those refusals. On 9 September 2021, the respondent refused the appeals. The applicants applied to the High Court for certiorari to quash the respondent’s decision. The applicants submitted that the respondent failed to comply with fair procedures in failing to consider the applicants’ response before making the impugned decision. The applicants relied on L v Minister for Justice [2019] IESC 75 which held that a review of a decision is required to be capable of ascertaining whether the refusal decision was “based on a sufficiently solid factual basis”, which did not entail a full review but did necessitate a “searching review” (at para. 70). The applicants submitted that the respondent failed to consider the decision from the perspective of the free movement rights of the first applicant, as a Union citizen, and the visa appeal decisions were therefore irrational on that basis, as per Shishu & Anor v Minister for Justice and Equality [2021] IECA 1. The applicants contended that the respondent erred in disregarding the large sum of money transferred in May 2015 by the third applicant to the first applicant. The applicants submitted that the respondent failed to consider the appeals in the round, and failed to consider the ownership of their residence, their rent-free living arrangement, utility bills in their parents’ names and the omitted financial transfers.
Held by Bolger J that the impugned decision was not that of a rational and reasonable decision maker because of the failure to consider documentation and information furnished, and also insofar as the decision excluded a substantial transfer of money made in 2015 for the stated reasons that it was unlikely to have been for the applicants’ day to day needs as they were residing with their mother at the time, that it could have been for any number of purposes and that it was not part of a pattern of transfers. Bolger J noted that a similar finding discounting evidence of co-habitation because the applicant was named as a co-tenant on a lease was condemned by Haughton J in Shishu as irrational and a failure to “consider the application in the round” (para. 98); Haughton J also criticised the decision’s failure to consider the decision from the perspective of the Union citizen. Bolger J found that a similar criticism could be levelled in this case having regard to the third applicant’s status as an EU citizen and his right to move and freely reside within the Member State.
Bolger J granted an order of certiorari quashing the respondent’s decision of 9 September 2021 refusing the first and second applicants’ visa applications. Bolger J’s indicative view on costs was that costs should, in accordance with s. 169 of the Legal Services Regulatory Act 2015, follow the cause.
Application granted.
JUDGMENT of Ms Justice Bolger delivered on the 24 th day of April 2023 .
. This is the applicants' application for certiorari to quash the decision of the Minister dated 9 September 2021 to refuse the first and/or second applicant's visa applicants pursuant to the European Communities (Free Movement of Persons) Regulation 2015 and/or Council Directive 2004/38/EC.
. The first applicant is a national of India who was born in 1987. The second applicant is a national of India who was born in 1991. The third applicant is a national of the United Kingdom who was born in 1965, and is the father of the first and second applicants. He moved to Ireland on or around 18 August 2015 and resides here with his spouse and son who were granted visas to enter the State in 2019. He is currently employed.
. On 13 November 2019, the applicants wrote to the Minister at the Embassy of Ireland in New Delhi to apply for Join Family (EEA national) visas for the first and second applicants, based upon the third applicant's status as a Union citizen residing and exercising his right of free movement in the State and on the first and second applicants' status as his dependents and therefore qualifying family members. His letter explained that the first and second applicants relied on him for their basic needs such as rent and other living expenses. Documents were enclosed in support of the application, including bank statements and money transfers from the third applicant to the first and second applicants.
. By decision dated 16 December 2019, the Minister refused the visa applications. Only the reasons relating to proof of dependency are relevant to the this decision. Payments were made by the third applicant to the first applicant on 5 May 2015, 28 June 2016, and 24 January 2019, but the decision stated that money transfers made in isolation were not proof of dependency and that the first applicant had not provided evidence that she was the sole beneficiary of this financial support. Her bank statements did not show any transfers of cash between 5 May 2015 and 24 January 2019 and she had not shown how she had provided for herself during this time or any documentary evidence to show that she was unable to meet her day-to-day expenses. The support provided from the third applicant was not proven to be necessary or sufficient. The decision raised similar concerns regarding payments made to the second applicant.
. The applicants submitted an appeal against those refusals, citing the Court of Appeal in V.K. v Minister for Justice and Equality [2019] IECA 232 in saying that, when assessed in combination, the money transfers constituted a considerable amount of support. The applicants had submitted affidavits that they had no other source of income and were wholly reliant on their father. They were not in a position to submit documentary evidence of income that did not exist. The third applicant's wife and son (their mother and brother) lived in India with the applicants until they were granted visas to join the third applicant in the State in 2019, and it was unsurprising that few cash transfers were made in their names prior to that time.
. The Minister's response said that the amount of money transferred was not used as an indicator to determine dependency and that proof of a real need for financial assistance was needed, that the affidavits had little evidentiary weight in the absence of sufficient corroborating evidence, that it was noticeable that a single transfer of 952,998 INR had been made on 5 May 2015 and that without this lump sum the total transfers amounted to 217,284.73 INR and that sufficient evidence had not been submitted that the second applicant was a beneficiary of any of the money transferred in this transaction.
. The Minister requested various documentation including details of the second applicant's employment and any documents demonstrating that the first and second applicants used the money transfers from the third applicant to meet their essential needs.
. The applicants' response of 11 May 2020 confirmed that the second applicant had never worked and was always dependent, and that the first applicant had worked sporadically, but earned a very miniscule amount sufficient only for pocket money for non-essential expenditures. They said that there was sufficient information that they had been dependent on the third applicant for a number of years, and that they could not be expected to provide a documentary account of how the support had been spent. The applicants wrote again on 12 December enclosing an original deed which identified their mother as the owner of their residence, and gas bills for that residence addressed to their parents at that address.
. The Minister refused the appeals for the following reasons:
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— The sum transferred on 5 May 2015 could not be considered part of the pattern of transfers from the third applicant as it was unlikely to be for day-to-day expenses and could have been used for other purposes such as the second applicant's education.
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— The Minister could only assess transfers to the first and second applicants from October 2018 and August 2018.
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— No evidence of proof of payment of rent, a rental contract, evidence of rental payments or documentation detailing their succession from their mother had been submitted.
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— No utility bills in respect of their residence had been submitted.
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— In the 12 month period from May 2019, the third applicant had provided one tenth of the average cost of living for a person in India to the first and second applicants.
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— The first and second applicants may be in receipt of an...
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