Shakeel Ahmed Dar v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 20 December 2021
• Neutral Citation: [2021] IECA 339
• Docket Number: Record No.: 2021/43
• Year: 2021
• Court: Court of Appeal (Ireland)

Between/

Shakeel Ahmed Dar

Appelant

and

The Minister for Justice and Equality

Respondent

[2021] IECA 339

Donnelly J.

Noonan J.

Murray J.

Record No.: 2021/43

THE COURT OF APPEAL

JUDGMENT of Ms. Justice Donnelly delivered on the 20th day of December, 2021

Introduction

1 The right of certain family members of an EU citizen exercising his or her right of free movement or residence in another member state (the host member state) to entry and residence in that state turns on whether the family member is dependent on the EU citizen. Perhaps surprisingly, the meaning of dependency is not defined under the relevant EU legislation; 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 (“the Citizenship Directive”). Earlier EU legislation dealing with this issue had not defined dependent (or cognate words). The Court of Justice of the European Union (“the CJEU”) has addressed the meaning of dependency in a number of important decisions. Those decisions have in turn, been considered and applied in this jurisdiction in a number of authoritative decisions of this Court.

2 The central issue in this appeal is, the parties agree, whether the Minister (the respondent to the judicial review proceedings in the High Court and the appellant in these proceedings) applied the correct test in refusing to grant a residence card to the mother of Mr. Dar. Mr. Dar was the applicant in the judicial review proceedings and the respondent in these proceedings. There is however no agreement as to what that correct test should be.

3 The Minister submits that the High Court judge erred in holding that there was a separate or standalone test based upon emotional and social dependence. Mr. Dar submits that the test for dependency, in accordance with Irish and CJEU case-law, is a matter of financial and social circumstance. Mr. Dar submits that the Minister did not give any consideration in her decision to the social circumstances of Mr. Dar's mother and that she was required to consider those circumstances separately to any financial issues.

Background

4 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, a non-EU/EEA national, came to Ireland in 2016 and has remained here living with her son. She applied to the Minister on the 25th, August, 2016 for an EU residence card on the basis that she is a “qualifying family member” within the meaning of regulation 3(5) of S.I. No. 548/2015 — European Communities (Free Movement of Persons) Regulations, 2015 (“the 2015 Regulations”). That application was refused on the 12th June, 2017. The statutory review was also unsuccessful. Judicial review proceedings of the refusal were commenced and compromised. The matter returned for reconsideration, and the impugned review decision, affirming the refusal of the residence card, issued on the 26th August, 2019.

5 Mr. Dar commenced these judicial review proceedings seeking to quash that decision on the ground, inter alia, that the Minister had no, or no “proper, regard […] for, and/or fail[ed] to reach a reasoned decision, in respect of the emotional and social dependence which exists between [Mr. Dar] and his mother, a 71 year old widow who reside (sic) in the home of [Mr. Dar], her only child” (Emphasis added). Other grounds included that the provision of a home by Mr. Dar to his 71 year old widowed mother was sufficient evidence of dependency for the purpose of EU law.

The Citizenship Directive and the 2015 Regulations

6 Article 2 of the Citizenship Directive extends the benefits of free movement to “family members” of the EU citizen as so defined in the Directive. Some of these family members qualify by virtue of their relationship per se to the Union citizen e.g. spouse. For a direct relative in the ascending line to benefit however, that person must be dependent on the EU national or his or her partner/spouse (see Article 2(2)(d)). There is another pathway by which other family members may qualify; qualification under Article 3(2)(a) requires, inter alia, dependency or membership of the same household or on serious health grounds, in the country from which that family member has come.

7 The requirements under Article 3(2)(a) do not apply to the facts of this case. Some of the relevant case-law however deals with claims arising under that sub-Article and thus addressed both the meaning of dependency and membership of a household. It is important to clarify that references in the case-law to dependency in the country of origin/country from which they have come, do not apply to this application for an EU residency card by Mr. Dar's mother. She made her application under that part of the 2015 Regulations which implement Article 2(2)(d) of the Citizenship Directive.

8 The 2015 Regulations transposing the Citizenship Directive use the language of “qualifying family member” in respect of Article 2(2) claims and “permitted family member” in respect of Article 3(2) claims. While those terms are not at issue here they can explain some of the language used in the Irish case-law. No claim of failure to transpose the Citizenship Directive was made in these proceedings and therefore this appeal does not address whether there is any distinction between the Citizenship Directive and the 2015 Regulations on the meaning of dependency. The 2015 Regulations do not provide a definition of dependency.

The High Court Judgment

9 In his judgment [2021] IEHC 17, Barrett J. recited the relevant part of the impugned decision. The decision focussed on the lack of information concerning the financial assistance provided by Mr. Dar to his mother and the absence of any documentation on her financial position. The decision stated that the provision of receipts for groceries or minor medical matters did not speak to dependency.

10 Barrett J. identified the sole question for adjudication as whether the Minister applied the incorrect test for establishing dependency in breach of the correct approach as identified in Irish and CJEU case law.

11 In a long Appendix to his judgment, he set out the extensive history of communication between Mr. Dar's solicitors and the Minister in respect of the application for the residence card. He recounted the history of the earlier refusal, the review and the compromised judicial review. The history discloses that Mr. Dar had submitted huge volumes of receipts in respect of what he said were the payments for her essential needs, such as grocery bills and receipts for GP visits and other medical expenses. Subsequent to the compromised judicial review proceedings, Mr. Dar had added his mother to the tenancy agreement and to his Vodafone bill.

12 Barrett J. also extensively reviewed the case law including V.K. v. Minister for Justice and Equality and Anor. [2013] IEHC 424, Ali Agha v. Minister for Justice and Equality [2019] IEHC 883, V.K. v. Minister for Justice and Equality [2019] IECA 232 and CPAS de Courcelles v. Lebon (Case C-316/85), Jia v. Migrationsverket (Case C-1/05), Reyes v. Migrationsverket (Case C-423/12), SSHD v. Rahman (Case C-83/11), Subhan v. Minister for Justice and Equality [2018] IEHC 458, Awan v. Minister for Justice and Equality [2019] IEHC 487, Shishu v. Minister for Justice and Equality [2021] IECA 1.

13 At para. 55 of the Appendix, Barrett J. gave his synopsis of the law on dependency. At para. 56 he identified a checklist of questions derived from the foregoing case law as to whether a person is a dependent. These are as follows:

• 1) “Has the alleged dependent shown, in the light of her/his financial and social conditions, a real and not temporary dependence on a Union citizen?

• 2) Are the financial needs of the alleged dependent which are being met by the Union citizen for basic or essential needs of a material nature without which the alleged dependent could not support herself/himself?

• 3) Is it the case that the needs actually being met are essential to life and the financial support more than merely ‘welcome’?

• 4) Is the dependence of the alleged dependant real, i.e. is the dependence of substance, is the support more than just fleeting or trifling, is the support proven, concrete, and factually established? (It does not have to be established that without that real or material assistance the alleged dependent would be living in conditions equivalent to destitution).

• 5) Does the alleged dependent, by reference to the applicable facts, have a real need for financial assistance? (The test is not whether that person could survive without it).

• 6) Does the alleged dependent rely on the support of the Union citizen to meet a material or social need which is central to the alleged dependent's life? ( Emphasis added)

• 7) Does what is being proffered to the Department, establish that the Union citizen is making an identifiable and meaningful contribution to the alleged dependent person?

• 8) Does what is being proffered to the Department establish that the claimant is not financially independent and therefore requires support? (If s/he can support herself/himself, there is no dependency, even if she is given financial material support by the EU citizen, for those additional resources are not necessary to enable her to meet her basic needs).

• 9) Is the documentation being furnished to the Department cogent and sufficient to enable it to test whether the level of material support, its duration and its impact upon the applicant combined together meet the material definition of dependency?”

14 He then applied those principles to the facts of the case as follows. He rejected “ the proposition that because an elderly mother lives with her adult son it follows, ipso facto, that she is dependent upon that son”. That finding of the trial judge...