Shakeel Ahmed Dar v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 19 January 2021
• Neutral Citation: [2021] IEHC 17
• Date: 19 January 2021
• Docket Number: [2019 No. 754 JR]
• Court: High Court

Between

Shakeel Ahmed Dar

Applicant

and

The Minister for Justice and Equality

Respondent

[2021] IEHC 17

[2019 No. 754 JR]

THE HIGH COURT

EU residence card – Qualifying family member – Judicial review – Applicant seeking order of certiorari – Whether the respondent erred in law and/or acted in breach of EU law in applying the incorrect test for establishing dependency

Facts: The applicant, Mr Dar, a UK national, came to Ireland in 2004 in exercise of his free movement rights. His mother, a non-EU/EEA national, came to Ireland in 2016 and remained there, living with him. Consistent with Art. 2 of the Citizens’ Rights Directive (Directive 2004/38/EC) and pursuant to the EC (Free Movement of Persons) Regulations 2015 (S.I. 548 of 2015), he sought an EU residence card by application of 25/8/2016 on the basis that she was a “qualifying family member” within the meaning of reg. 3(5). That application was refused on 12/6/2017. A review was sought under reg. 25 of the Regulations. This was unsuccessful. Judicial review proceedings were commenced and compromised, and the impugned review decision eventually issued on 26/8/2019, affirming the refusal of the residence card. The sole question which arose for adjudication in the proceedings before the High Court was whether the respondent, the Minister for Justice and Equality, erred in law and/or acted in breach of EU law in applying the incorrect test for establishing dependency in breach of the correct approach to the issue of dependency as identified by the High Court in Kuhn v Minister for Justice and Equality and Anor. [2013] IEHC 424 and the European Court of Justice in Reyes v Sweden (Case C-423/12) [ECLI:EU:C:2014:16].

Held by Barrett J that where the Minister erred in her decision was that (i) she failed to have any, or any proper, regard to, and (ii) failed to reach a reasoned decision in respect of, the emotional and social dependence which existed between the applicant and his mother, referring to K v Minister for Justice [2019] IECA 232.

Barrett J held that the court would grant the order of certiorari sought.

Order of certiorari granted.

JUDGMENT of Mr Justice Max Barrett delivered on 19th January 2021.

1 Mr Dar is a UK national who came to Ireland in 2004 in exercise of his free movement rights; he operates a business here. Mr Dar's mother (born in 1948), a non-EU/EEA national, came to Ireland in 2016 and has remained here since, living with Mr Dar. Consistent with Art.2 of the Citizens' Rights Directive ( Directive 2004/38/EC) and pursuant to the EC (Free Movement of Persons) Regulations 2015 (S.I. 548 of 2015), the applicant sought an EU residence card by application of 25/8/2016 on the basis that she is a “ qualifying family member” within the meaning of reg.3(5). That application was refused on 12/6/2017. A review was sought under reg.25 of the Regulations, this was unsuccessful, judicial review proceedings were commenced and compromised, and the impugned review decision eventually issued on 26/8/2019, affirming the refusal of the residence card.

2 The impugned decision refers to the nature of the review sought and its key part states:

“You maintain that your son provides for all of your needs – food, accommodation, clothing, utilities, medical supplied, and everyday necessities. It is noted, however, that you have submitted little documentation of probative value in this connection or in respect of this review. Although you have furnished numerous receipts for grocery shopping and several receipts for GP visits and other minor medical expenses, it is not considered that these documents speak to dependency or can be relied upon in this application. Significantly, there is no indication on file who paid for these groceries or medical expenses. There is no indication on file that you have ever been in receipt of financial assistance from your son. Indeed, there are no financial records whatsoever for you on file. Your legal representatives assert that you are a person who would not be able to meet your essential living requirements without the financial assistance of the EEA national and that you, therefore, should be considered dependent upon the EEA national. It is noted, however, that you have not submitted any documentation that might attest to your receipt of financial assistance from your son. As noted above, there are no financial documents on file for you at all and there is nothing to suggest that you have ever received any financial transfers or assistance from your son.”

3 The sole question arising for adjudication in these proceedings is whether the Minister erred in law and/or acted in breach of EU law in applying the incorrect test for establishing dependency in breach of the correct approach to the issue of dependency as identified by the High Court in Kuhn v. Minister for Justice and Equality and Anor. [2013] IEHC 424 and the European Court of Justice in Reyes v. Sweden (Case C-423/12) [ECLI:EU:C:2014:16]. Other case-law was touched upon at the hearing and/or in the written submissions, including the Court of Appeal's decision in K v. Minister for Justice [2019] IECA 232 and this Court's decision in Ali Agha v. Minister for Justice and Equality [2019] IEHC 883.

4 At the hearing, the key thrust of the Minister's contentions, consistent with the impugned decision, was that while it looks like the Minister was furnished with lots of receipts (and she was), in fact there is nothing to connect many of those receipts to expenditure by the applicant on his mother; moreover, as the above-quoted segment of the decision states, there “ are no financial documents on file for [the applicant's mother]… and there is nothing to suggest that [the applicant's mother]… ever received any financial transfers or assistance from your son.” (There was also mention that the narrative supplied by the applicant was not sufficient; however, this is not a reason that features in the impugned decision and so is not considered here). Whether or not the court agrees with the Minister's conclusion is irrelevant: it was undoubtedly open to the Minister properly to conclude as she did regarding the client's financial conditions by reference to what she perceived to be a want of financial documents. The Minister refers in the impugned decision to the provision of accommodation by Mr Dar, so the court does not accept that the Minister was unaware as to the accommodation arrangements. The court respectfully does not accept the proposition that because an elderly mother lives with her adult son it follows, ipso facto, that she is dependent upon that son.

5 Where the Minister, with respect, erred in her decision was that (i) she fails to have any, or any proper, regard to, and (ii) fails to reach a reasoned decision in respect of, the emotional and social dependence which exists between the applicant and his mother, a non-EU/EEA woman in her seventies who resides, and has now for some years resided in her son's home. As Baker J. observes in K v. Minister for Justice [2019] IECA 232, at para.81, “ The test for dependence is one of EU law and an applicant must show, in the light of his financial and social conditions, a real and not temporary dependence on a Union citizen” [emphasis added], noting also, at para.82 that “ The concept of dependence is to be interpreted broadly and in the light of the perceived benefit of family unity and the principles of freedom of movement.” In passing, the court notes that the judgment of the Court of Appeal in K receives commendation in the Court of Appeal's judgment earlier this month in Shishu and Miah v. Minister for Justice and Equality [2021] IECA 1, as a decision that “ puts beyond doubt the correct interpretation of dependency”. Consistent with K, this Court observed in Ali Agha, at para.6, “ As is clear from Jia [(Case C-1/05) [ECLI:EU:C:2007:1]], at para. 37 (as touched upon in Chittajallu v. Minister for Justice and Equality [2019] IEHC 521, at para. 4): ‘In order to determine whether the relatives in the ascending line…are dependent…the host Member State must assess whether, having regard to their financial and social conditions, they are not in a position to support themselves’ [ Emphasis added]”. There is no (or no proper) consideration, in the impugned decision of the social conditions presenting; it but records the perceived position as regards the financial documents provided. This being so, the court will grant the order of certiorari sought.

6 The court considers in still more detail, in the Appendix hereto, the case presenting in the within application. That Appendix, and this and the preceding paragraphs, together comprise the court's judgment in these proceedings.

APPENDIX

A. Background Facts

1. Mr Dar is a British citizen who came to Ireland in 2004 in exercise of his EU treaty rights and has resided and worked here since. His widowed mother, Mrs Kauser, a national of Pakistan, has resided with Mr Dar since she arrived in Ireland on 27/ 5/2016 on foot of a visa granted by the Minister. She was born in 1948, so not very long after Pakistan had acquired its rightful place among the community of nations as an independent sovereign state. She arrived on a visit to Ireland on 27/ 5/2016 and had intended to return to Pakistan after her trip. However, Mr Dar, it seems, decided that it was in his mother's best interests to remain with him in Ireland so that he could look after her and provide for her. By letter dated 25/8/2016, mother and son submitted an EU1 application to the Minister seeking a residence card for Mrs Kauser on the basis that she was residing with, and dependent upon, Mr Dar. The cover letter to the application, prepared by the solicitor for mother and son, states as follows (where named medical or retail outlets or service providers are referred to in the letter, the name has been dropped to preserve the privacy of both Mr Dar and...