Safdar v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms Justice Baker
• Judgment Date: 19 December 2019
• Neutral Citation: [2019] IECA 329
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal No. 2019/28
• Date: 19 December 2019

BETWEEN/

ADNAN SAFDAR

APPLICANT/APPELLANT

- AND -

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2019] IECA 329

Baker J.

Whelan J.

McGovern J.

Appeal No. 2019/28

THE COURT OF APPEAL

Residence card – Permitted family member – Judicial review – Appellant seeking a residence card as a permitted family member – Whether the respondent complied with his obligation to give reasons for his decision

Facts: The appellant, Mr Safdar, appealed to the Court of Appeal from the order of 19 December 2018 of Keane J following delivery of a written judgment of 7 December 2018, [2018] IEHC 698, refusing judicial review of a decision of the first respondent, the Minister for Justice and Equality, made on 3 April 2017 to refuse Mr Safdar, a national of Pakistan, a residence card as a permitted family member of his cousin, Mr Ahmed, a citizen of the United Kingdom who, at the material time, resided and worked in the State in the exercise of his free movement rights as Union citizen. The decision of the Minister was made pursuant to r. 21 of the European Communities (Free Movement of Persons) No. 2 Regulations 2006 (S.I. No. 656/2006), and upheld the first instance decision of 21 December 2015 under r. 7(2) of the 2006 Regulations. The issues to be determined on appeal were outlined in the written submissions of the appellant as follows: (i) Did the appellant have locus standi to bring the judicial review (the State respondents’ cross-appeal)? (ii) Has Directive 2004/38/EC On the Right of Citizens of the Union and Their Family Members to Move and Reside Freely Within the Territory of the Member States, O.J. L158/77 30.4.2004 (the Citizens Directive), been properly transposed into national law? (iii) Did the Minister comply with his obligation to give reasons for the decision? (iv) Do the provisions of the Citizens Directive as implemented by the 2006 Regulations require a two-stage decision making process? (v) Are the matters raised above matters of EU law which require the Court to make a preliminary reference to the European Court of Justice (ECJ)?

Held by Baker J that: (i) Keane J was correct that Mr Safdar did have standing to himself, and without being joined by his cousin as co-applicant, bring and maintain the judicial review; (ii) the guidelines published by the INIS in 2015, which set out details of the kind of proofs that may be required in an application for visas by a permitted family member of Union citizens, offer considerable assistance to application under the scheme of the Citizens Directive; (iii) the argument that the 2006 Regulations do not apply to a person unless and until the deciding body has made a determination on the facts that an applicant is a permitted family member did not arise from the judgment; (iv) the reasons given were detailed, coherent, adequate and met the test in the authorities; and (v) the decision of the ECJ in Rahman and Others, C-83/11, EU:C:2012:519 deals squarely with the proper construction of art. 3(2) of the Citizens Directive.

The Court held that the appeal and the cross-appeal would be dismissed on all grounds.

Appeal dismissed.

JUDGMENT of Ms Justice Baker delivered on the 19th day of December, 2019

1 This is an appeal from the order of 19 December 2018 of Keane J. following delivery of a written judgment of 7 December 2018, Safdar v. Minister for Justice and Equality [2018] IEHC 698, refusing judicial review of a decision of the Minister for Justice and Equality (“the Minister”) made on 3 April 2017 to refuse Mr Safdar, a national of Pakistan, a residence card as a permitted family member of his cousin, Mr Ahmed, a citizen of the United Kingdom who, at the material time, resided and worked in the State in the exercise of his free movement rights as Union citizen. The Union citizen is not named in the title to these proceedings, and whether the proceedings are properly constituted is one matter that falls for consideration.

2 The decision of the Minister was made pursuant to r. 21 of the European Communities (Free Movement of Persons) No. 2 Regulations 2006 ( S.I. No. 656/2006), as amended (“the 2006 Regulations”) and upheld the first instance decision of 21 December 2015 under r. 7(2) of the 2006 Regulations.

3 The 2006 Regulations implemented Directive 2004/38/EC On the Right of Citizens of the Union and Their Family Members to Move and Reside Freely Within the Territory of the Member States, O.J. L158/77 30. 4.2004 (the “ Citizens Directive”), and have since been revoked and replaced by the European Communities (Free Movement of Persons) Regulations 2015 ( S.I. No. 548/2015) (“the 2015 Regulations”) which came into operation on 1 February 2016 and are not materially different from those under consideration in this appeal.

4 The appeal concerns the correctness of the approach of the trial judge to the reasoning and process engaged by the Minister and raises two issues of some importance. The first concerns the standing of Mr Safdar to commence these proceedings in his own name. The second is whether the 2006 Regulations correctly transpose the Citizens Directive.

Background facts

5 Mr Safdar, a Pakistani national, was born in 1990 in Pakistan and avers that he entered the State from the United Kingdom on 20 August 2014 as both a dependent and a member of the household of his first cousin, Mr Ahmed, a British citizen born in 1972 and who is said to have entered the State some two weeks after Mr Safdar. It was accepted that Mr Ahmed is the first cousin of Mr Safdar, and that he has exercised his free movement rights as a worker in the State. It is also accepted that Mr Ahmed and Mr Safdar reside in the same rented accommodation within the State.

6 On 20 April 2015, some months after Mr Safdar entered the State, an application was submitted on his behalf for a residence card. The application was signed by Mr Safdar and Mr Ahmed.

7 The sequence of communications between the Immigration and Naturalisation Service of the Department of Justice (“INIS”) is set out in detail in the judgment of Keane J. That correspondence sought evidence of the relationship between Mr Safdar and his cousin and contained observations and responses to the documentation adduced.

8 The decision issued on 21 December 2015 was that Mr Safdar was not entitled to be treated as a permitted family member of his Union citizen first cousin as he had not shown dependence upon him nor that he was a member of the household of his first cousin in the United Kingdom.

9 The decision on review, issued on 3 April 2017, was stated to have been arrived at following an examination of the documentation and it was pointed out that the documentation mostly showed the living arrangements of the two cousins within the State and not the evidence that Mr Safdar was dependent on his first cousin in the country from which they had come.

10 In the affidavit verifying the application for judicial review sworn on 12 June 2017 and narrated by the trial judge in his judgement, Mr Safdar avers that he resided in two different places in the United Kingdom, in houses owned by Mr Ahmed's wife, that Mr Ahmed changed address frequently (often due to work), and that he continues to travel back and forth between Ireland and the United Kingdom to visit his family. He asserts that his relationship with Mr Ahmed is genuine and stable and that the degree of dependence on him is what prompted Mr Ahmed to bring Mr Safdar with him to Ireland as an adult member of his household while Mr Ahmed left his wife and other family members of his household behind in the United Kingdom.

The High Court decision

11 On 19 June 2017, O'Regan J. granted Mr Safdar leave to seek judicial review by way of a declaration that the 2006 Regulations failed to transpose the Citizens Directive and/or are incompatible with EU law; an order of certiorari quashing the Minister's decision of 3 April 2017 to uphold, on review, the refusal of residence permission to Mr Safdar; and an order of certiorari quashing the Minister's decision to issue a proposal to deport Mr Safdar on the following grounds:

1) the State had failed to properly transpose the Citizens Directive and, in particular, the requirements of article 3(2) of that Directive, as domestic legislation does not contain criteria which are consistent with the normal meaning of the term “facilitate” and of the words relating to dependence;

2) the Minister's decision is arbitrary, unreasonable, irrational and unlawful in the absence of any published criteria for establishing when a family member is a dependant or member of the household of a Union citizen with a right of residence in the State;

3) the Minister's decision was reached in breach of Mr Safdar's entitlement to natural and constitutional justice and fair procedures.

12 Keane J. rejected the preliminary objection of the Minister that the proceedings are not properly constituted as Mr Ahmed was not a party to the High Court proceedings.

13 He rejected Mr Safdar's argument that the 2006 Regulations fail to properly transpose article 3(2) of the Citizens Directive or breach the principle of effectiveness as they failed to establish “criteria” consistent with the term “facilitate” for determining what constitutes dependency upon, or membership of the household of the Union citizen having the primary right of residence.

14 Keane J. found that the Minister provided clear and cogent reasons for the decision on review to confirm the first instance refusal to grant Mr Safdar a residence card, the existence and scope of the requirement to give reasons for an administrative decision not being in issue between the parties.

15 Keane J. rejected Mr Safdar's submission that the court should request a preliminary ruling from the Court of Justice under article 267 of the Treaty on the Functioning of the European Union (“TFEU”) based on Mr Safdar's...