Shishu v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Robert Haughton
• Judgment Date: 08 January 2021
• Neutral Citation: [2021] IECA 1
• Date: 08 January 2021
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record Number: 2019/450

BETWEEN

MD. JAGLUL HOQUE SHISHU

AND

MD. JABED MIAH

APPLICANTS/RESPONDENTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT/APPELLANT

[2021] IECA 1

Whelan J.

Faherty J.

Haughton J.

Court of Appeal Record Number: 2019/450

High Court Record Number: 2018/1054 JR

THE COURT OF APPEAL

EU residence card – Order of certiorari – Financial dependence – Appellant appealing from order of certiorari – Whether the appellant acted in breach of EU law

Facts: The appellant, the Minister for Justice and Equality, appealed to the Court of Appeal from the written judgment of Barrett J in the High Court granting an order of certiorari perfected on 10 October 2019 in favour of the second respondent, Mr Miah, referring his application for an EU residence card back to the appellant for further consideration. That application had been refused by the Minister by decision dated 12 October 2018. The grounds of appeal were as follows: (1) the trial judge erred in law in finding that the Minister erred in his interpretation and/or application of the relevant provisions of the European Communities (Free Movement of Persons) Regulations 2015 in his consideration of Mr Miah’s application for a residence card; (2) the trial judge erred in law in finding that the Minister acted unreasonably and/or in breach of EU law and/or in breach of the 2015 Regulations in determining that Mr Miah had failed to provide sufficient evidence that he was a member of the household of the first respondent, Mr Shishu, his brother, and in questioning whether the Minister had paid due regard to Article 3(2) of the Citizens Directive 2004/38/EC; (3) the trial judge erred in law in his findings regarding the proper meaning of the term ‘household’ as established by the Directive and implemented by the State under the 2015 Regulations; (4) the trial judge erred in law in finding that the Minister acted unreasonably or in breach of fair procedures in concluding that Mr Miah had failed to produce satisfactory evidence that he was a dependent of Mr Shishu or a member of his household, without adopting procedures which would have enabled Mr Miah to know what evidence he was required to adduce in order to establish same; (5) the trial judge erred in law in departing from the jurisprudence and/or wrongly interpreted Subhan v Minister for Justice and Equality [2018] IEHC 458 and Safdar v Minister for Justice and Equality [2018] IEHC 698. The grounds of opposition were in substance a traverse of the grounds of appeal, and asserted that the trial judge’s determinations were correct. There was a cross appeal on one ground: the trial judge erred in finding that the appellant did not act unreasonably and/or irrationally in finding that he was not satisfied that the second respondent was financially dependent on the first respondent in the United Kingdom.

Held by Haughton J that the decision-makers failed to identify or apply the correct test of dependency, and in that respect he would allow the cross-appeal. He held that the Minister acted unreasonably/irrationally and/or in breach of EU law and/or in breach of the 2015 Regulations in determining that Mr Miah had failed to provide sufficient evidence that he was a member of the household of Mr Shishu in the UK. As to the process that was to be followed by the Minister under Reg. 5 of the 2015 Regulations, Haughton J adopted the analysis of the Supreme Court in Pervaiz v Minister for Justice [2020] IESC 27 where Baker J held that Reg. 5(3) envisaged “not so much two stages but a series of questions with which the Minister must engage”, a view that differed from that taken by the trial judge. Haughton J held that while the trial judge was entitled to have regard to different language versions of Article 3(2)(a), as the Minister never contested the translations submitted by the respondents, the approach taken to interpreting Article 3(2) was flawed; he should first have considered official language version(s) and done so in context, including considering the recitals and related provisions, and adopted a teleological approach, and only if ambiguity resulted then he should have had recourse to the other language versions to assist him in determining whether to make an Article 267 reference. Haughton J held that the Minister erred in adopting his ‘looser’ interpretation of ‘member of the household’ without reference to any domestic caselaw from Germany, Spain or Greece, or expert evidence as how their versions of the Citizens Directive are interpreted in their domestic law.

Haughton J held that he would affirm the decision of the High Court to grant certiorari and to remit the matter to the Minister for fresh consideration.

Cross appeal allowed.

JUDGMENT of Mr. Justice Robert Haughton delivered on the 8 ^th day of January 2021

Index

Paragraph Title

5 Background

15 Initial Decision

34 Judicial Review Sought

35 Relevant EU and Domestic Legal Provisions

40 High Court Judgment

42 Grounds of Appeal

43 Grounds of Opposition and Cross- Appeal

44 Issues that fall to be decided

47 Application of the relevant provisions of the 2015 Regulations

66 Proper meaning of the term ‘member of household’ as established by the Citizens Directive 2004/38/EC and implemented in the State under the 2015 Regulations

92 Whether the Minister acted ‘unreasonably’ and/or in breach of EU Law and/or in breach of the 2015 Regulations in determining that there was a failure to provide sufficient evidence to showcase that a person is a member of the household of an Union citizen

102 Whether the Minister acted ‘unreasonably’ and/or in breach of procedures by refusing to highlight or adduce to an applicant as to what evidence is required in order to satisfy the Minister on the basis of his application.

129 Legal Test for an applicant to show that he is a ‘dependent’ of the Union citizen

148 Conclusion

154 Costs

1 This is an appeal from the written judgment of Barrett J. in the High Court granting an order of certiorari perfected on 10 October 2019 in favour of the second named applicant/respondent (“Mr Miah”) referring his application for an EU residence card back to the appellant (“the Minister”) for further consideration. That application had been refused by the Minister by decision dated 12 October 2018 (“the Impugned Decision”).

2 The first named applicant/respondent (“Mr. Shishu”) is the older brother of Mr. Miah and is a UK citizen, and as such is the EU citizen upon whom the application for the residence card depended.

3 The Impugned Decision was made by the Minister on review pursuant Regulation 25 of the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548/2015)(“the 2015 Regulations”) (which revoked and replaced S.I. No.656/2006, as amended – “the 2006 Regulations”) and it upheld a first instance decision of 9 May 2017 (“the Initial Decision”).

4 The 2006 Regulations, and now the 2015 Regulations, implemented Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 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, (“the Citizens Directive”).

5

Mr Shishu was born in Bangladesh on 6 July 1978 and lived there until 2001 until he moved to the UK where he was naturalised in 2009 as a UK Citizen giving him the right to free movement in Europe. In 2004 or 2005, he purchased a home at 94 Birley Street, Newton Le Willows, Merseyside where he resided with his wife.

6 Mr Miah was born in Bangladesh on 24 February 1992, and he claimed to be in receipt of monies remitted by Mr. Shishu to Bangladesh before going to the UK in May 2013 on a visitor's visa. When Mr. Miah moved to the UK he claimed to be financially dependent on his older brother. Mr Shishu notes in para. 4 of his verifying affidavit that he “covered the cost of [Mr. Miah's] accommodation, food, transportation and so on”. Mr Miah was present in the UK on a visitor's visa which did not entitle him to work.

7 In 2016 Mr Shishu's relationship with his wife broke down and he lived alone with Mr. Miah before moving to Ireland on 14 March 2016. It appears that Mr. Miah moved to Ireland first, and was joined soon after by Mr. Shishu. Initially they resided at 16 York Street, Castleblaney, Co. Monaghan. After a year of Mr. Shishu working as a part-time chef in Monaghan, in May 2017 they moved together to Ennis, Co. Clare, where Mr. Shishu has worked on a full time basis to the present date, and they reside there together in rented accommodation.

8 Mr Miah's application for an EU residence card was made in June 2016 and was refused on 12 October 2018 following a review of the Initial Decision which had issued to him on 9 May 2017. The history of that application and the process that led to its refusal is now detailed.

9 On 20 June 2016, Burns Kelly Corrigan, the solicitors then acting for Mr Miah, submitted a Form EU1A application on his behalf for an EU residence card to the Minister, together with supporting documents. Under the heading ‘Relationship of Applicant to EU citizen’ the box marked ‘Dependent’ was ticked, and accordingly the application on paper was based solely on Mr. Miah's relationship of dependency on Mr. Shishu, an EU citizen, and in that regard relied on reg. 5(1)(a)(i) of the 2015 Regulations. The fact that the box ‘Member of household’ was not ticked meant that the application did not rely also, or in the alternative, on reg.5(1)(a)(ii) – viz. membership of the household of the EU Citizen ie. Mr. Shishu, before Mr. Shishu moved to the State. That this appears to have been an error was adverted to as such by the trial judge, and, as will be seen, the application was in fact addressed under both the ‘dependency’ and ‘member of the household’ grounds at the review stage.

10 The application consisted of a large volume of supporting documentation –...