SA, SS (A Person of Unsound Mind Not So Found), MNS (A Person of Unsound Mind Not So Found) and SDA (A Minor Suing by His Grandfather and Next Friend, SA) v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mark Heslin |
| Judgment Date | 14 April 2022 |
| Neutral Citation | [2022] IEHC 258 |
| Court | High Court |
| Docket Number | [2019 No. 740 JR] |
[2022] IEHC 258
[2019 No. 740 JR]
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT of Mr. Justice Mark Heslin delivered on the 14th day of April 2022
This case comes before the court in circumstances where, by order dated 27 May 2020 (Humphreys J.), the Applicants were given leave to seek judicial review in respect of the relief set out at para. [D] on the grounds set out at para. [E] in their Statement of Grounds.
The primary relief, as appears from para [D] of the Applicant's Amended Statement of Grounds dated 27 May 2020 is as follows:-
“1. Certiorari by way of an application for judicial review to quash the decision of the Respondent dated the 23rd July 2019 to refuse the Second and/or Third and/or Fourth Applicant's visa appeals submitted pursuant to the European Communities (Free Movement of Persons) Regulation 2015 and/or Council Directive 2004/38/EC”.
The title to the proceedings was amended pursuant to the aforesaid order which was made at the ‘leave’ stage, on 27 May 2020. The circumstances in which the title to the proceedings was amended appear to be as follows. Counsel for the Applicants queried the capacity of the Second and Third Named Applicants to swear affidavits in support of the proceedings. The court directed the application for leave to proceed on notice to the Respondent and so that further medical investigations concerning their capacity could be conducted. Two medical reports were initially procured, being reports both dated 23 September 2019 concerning the Second and Third Named Applicants, respectively. These reports comprise Exhibit “MT 1” to the affidavit sworn by the Applicants' solicitor, Ms. Mary Trayers, in her affidavit which was sworn on 13 December 2019. In circumstances where it appears that the court was not satisfied that the aforesaid reports addressed the question of the Second and Third Named Applicants' capacity to swear affidavits, the leave application was adjourned to permit the Applicants to procure further reports. In a Second affidavit which was sworn by Ms. Trayers on 22 May 2020, she exhibits two further reports, both of which are dated 25 March 2020 and relate to the Second and Third Named Applicants. Both reports conclude by stating that each of the Applicants do “not have the capacity to swear or understand an affidavit”.
Insofar as the applications on behalf of the Second and Third Applicants should be brought by a “next friend”, it was indicated in written submissions that, if necessary, appropriate consents would be obtained from the First Applicant, such that an application could be made at the hearing to amend the title of the proceedings accordingly. No issue was taken at the hearing in respect of the title of the proceedings. That said, it was not accepted on behalf of the Respondent that the Second and Third Applicants are not capable of swearing affidavits. This is clear from the averment made by Ms. Melissa Brennan, Higher Executive Officer in the Visas Division of the Respondent's department, who swore an affidavit on 27 October 2020 for the purpose of opposing the present applications and verifying the contents of the Respondent's Amended Statement of Opposition dated 29 October 2020. It is fair to say, however, that, although Ms. Brennan avers at para. 6 of her affidavit that the Respondent does not accept that the Second and Third Applicants are not capable of swearing affidavits, no medical evidence is proffered by or on behalf of the Respondent in support of that averment. Nothing, however, would appear to turn on the foregoing insofar as the core questions which this Court is asked to determine.
I have carefully considered the contents of the Applicant's Statement of Grounds and the Respondent's Amended Statement of Opposition. In addition to indicating, at the outset of the hearing, that the Applicants were no longer proceeding with the legal grounds detailed in paras. [E] 4, 6, 7, and 11, three questions were identified as comprising the three ‘core issues’ which this Court was called upon to determine, having regard to the pleadings exchanged. In response to my questions, it was confirmed that there was no dispute between Counsel for both sides that the following questions fell to be determined:-
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(i) Was the Minister entitled to have regard to the public policy imperative of maintaining the integrity of the State's immigration system, including the integrity and security of the Common Travel Area with the United Kingdom, as well as the overall security of the State, when making the visa appeal decisions of the Applicants and/or each of them?
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(ii) Was the Minister entitled to refuse a visa to the Fourth Applicant on the ground that the Second Applicant's visa appeal had been refused?
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(iii) Did the Minister lawfully assess whether the Second and/or Third Applicants are dependent upon the First Applicant under the European Communities (Free Movement of Persons) Regulations 2015 and Council Directive 2004/38/EC?
Before looking at the relevant facts in this case, it is useful to refer to the relevant legal framework. Of particular relevance is “ Directive 2004/38/EC of the European Parliament and of the Council of the European Union of 29 April 2004 on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States” (“the Directive”). The Directive sets out conditions which govern the exercise of the right of free movement and residence within Member States by EU citizens and their family members.
The fifth recital provides as follows:-
“(5) The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. For the purposes of this Directive, the definition of “family member” should also include the registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage”.
It is uncontroversial to say that the provisions of the Directive are interpreted in light of the recitals, including the foregoing. As regards the articles themselves, Article 1 makes clear that the Directive lays down the conditions governing the exercise of the relevant free movement and residence rights; the right of permanent residence within the relevant territory for Union citizens and their family members; and the limits placed on the foregoing “on grounds of public policy, public security or public health”. At this juncture, it is appropriate to note that each of the three decisions, of 23 July 2019, which are challenged in the present proceedings, employed the terms “public policy” and “security”. Whether such considerations played any part in the Respondent's decision is disputed.
Article 2 of the Directive sets out a number of definitions. It is fair to say that a distinction is made between a “family member” as defined in Article 2 (2) and “any other family members” as referred to in Article 3 (2) (a). It is useful to quote from Article 2 (2) as follows:-
“(2) “Family member” means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;
(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b) …”.
In the present case the First Applicant is a UK national and a Union citizen, currently living in Galway. The Second Applicant is his daughter. The Third Applicant is his son. The Fourth Applicant is a minor, aged 16, who is the child of the Second Applicant and the grandchild of the First. Thus, the Fourth Named Applicant relies on the first part of the definition of “family member” in Article 2 (2) (c) (as a direct descendant under the age of 21), whereas the Second and Third Applicants rely on the second part of that subsection (i.e. claiming to be dependants of the First Applicant Union citizen).
It is important to note that, as made clear in Article 3, a “family member” is entitled to enter and reside in a host Member State where the Union Citizen has relocated, whereas any other family members who do not come within the Article 2 (2) definition enjoy the lesser right of having their entry and residence facilitated.
Article 5 deals with the “Right of Entry” and it is useful to quote Article 5(2) as follows:-
“2. Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement.
Member States shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure”.
Regulation (EC) No. 539/2001 is not applicable. Thus, for present purposes, Article 5(2) requires family members of non-nationals of a Member State to have entry visas in accordance with national law. The Applicants lay particular emphasis on the final sentence...
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