Subhan v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 25 July 2018
• Neutral Citation: [2018] IEHC 458
• Court: High Court
• Docket Number: [2016 No. 707JR]
• Date: 25 July 2018

BETWEEN

SHEHARYAR RAHIM SUBHAN

AND

ASIF ALI

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2018] IEHC 458

Keane J.

[2016 No. 707JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Residence card – Family member – Applicants seeking judicial review of a decision by the respondent – Whether the respondent erred in law in her interpretation of the term 'member of the household of the Union citizen having the primary right of residence'

Facts: The applicants applied to the High Court for judicial review of a decision by the respondent, the Minister for Justice and Equality, dated 15 August 2016, under Regulation 21(4) of the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 and 2008, since revoked, to uphold on review a first instance decision of 21 December 2015, under Reg. 7(2) of the 2006 Regulations, to refuse the application of the second applicant, Mr Ali, a national of Pakistan, for a residence card as a permitted family member of his cousin, the first applicant, Mr Subhan, a British, hence European Union, citizen, exercising free movement rights in the State. The applicants argued that: 1) the decision that Mr Ali had failed to establish that he was a dependant of Mr Subhan was unreasonable or disproportionate on the evidence presented; 2) the decision did not address Mr Ali's claim that he was a member of Mr Subhan's household in the United Kingdom; and 3) the Minister erred in law in interpreting and applying the term 'member of the household of the Union citizen' under the 2006 Regulations, wrongly construing it as membership of a household headed by the Union citizen, rather than membership of the same household as the Union citizen.

Held by Keane J that the Minister did not err in law in her interpretation of the term 'member of the household of the Union citizen having the primary right of residence' in concluding that Mr Ali had failed to establish that he had been a member of the household of Mr Subhan in the United Kingdom. Keane J could find nothing in the Minister's decision to suggest that the Minister failed to have regard to any of the evidence submitted by Mr Ali, nor could he find anything in the decision to suggest that the reasons given for it failed the test of reasonableness under the well-established Keegan and O'Keefe principles, confirmed by the Supreme Court in Meadows v Minister for Justice [2010] 2 IR 701.

Keane J held that he would refuse the application.

Application refused.

JUDGMENT of Mr Justice David Keane delivered on the 25th July 2018

Introduction

1 This is the judicial review of a decision by the Minister for Justice and Equality ("the Minister"), dated 15 August 2016 ("the decision"), under Regulation 21(4) of the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 and 2008 ("the 2006 Regulations"), since revoked, to uphold on review a first instance decision of 21 December 2015, under Reg. 7(2) of the 2006 Regulations, to refuse the application of Asif Ali, a national of Pakistan, for a residence card as a permitted family member of his cousin Sheharyar Rahim Subhan, a British - and, hence, European Union – citizen, exercising free movement rights in the State.

2 The 2006 Regulations were made, in exercise of the powers conferred on the Minister by s. 3 of the European Communities Act 1972, to give effect to Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the rights of the citizens of the Union and their family members to move and reside freely within the territory of the Member States ("the Citizens' Rights Directive").

3 In substance, the reason the Minister gave for the decision is that Mr Ali failed to establish that he is a "permitted family member" of Mr Subhan, within the meaning of that term under Regulation 2(1) of the 2006 Regulations (transposing the requirements of Article 3(2) of the Citizens' Rights Directive concerning "other family members"), because he failed to establish that in the United Kingdom (as the country from which he had come), he was either: (a) a dependant of Mr Subhan, as a Union citizen; or (b) a member of the household of Mr Subhan, as a Union citizen.

Procedural history and grounds of challenge

4 The application is based on a statement of grounds dated 8 September 2016, supported by an affidavit of Mr Subhan and a two-paragraph verifying affidavit of Mr Ali, each sworn on that date.

5 By order made on 12 September 2016, Barr J granted the applicants leave to seek the reliefs identified, on the grounds specified, in their statement of grounds. Principal among those reliefs is an order quashing the Minister's decision.

6 The applicants impugn that decision on the following five grounds. First, the Minister erred in law in construing the term "dependant of the Union citizen" under the 2006 Regulations. Second, the decision that Mr Ali had failed to establish that he was a dependant of Mr Subhan was unreasonable or disproportionate on the evidence presented. Third, the decision was unreasonable because the Minister failed to have regard to the evidence presented. Fourth, the decision did not address Mr Ali's claim that he was a member of Mr Subhan's household in the United Kingdom. And fifth, the Minister erred in law in interpreting and applying the term "member of the household of the Union citizen" under the 2006 Regulations, wrongly construing it as membership of a household headed by the Union citizen, rather than membership of the same household as the Union citizen.

7 The Minister delivered a statement of opposition dated 24 July 2017. It is supported by an affidavit, sworn on 10 August 2017 by Garrett Byrne, a principal officer of the EU Treaty Rights Review Unit in the Department of Justice and Equality ("the Department").

Background

8 For the purpose of the present proceedings, the following facts are not in dispute.

9 Mr Subhan was born in Pakistan on 4 May 1978 and moved to the United Kingdom with his parents in 1997. He was naturalised as a British citizen on 8 February 2013. He moved to Ireland in January 2015 where, since October 2015, he has been self-employed as an importer and retailer of mobile phone accessories, working first from his rented home and, later, from a rented self-storage unit. On 27 February 2016, Mr Subhan married a woman who is a Pakistani citizen and who, at the time of the hearing of these proceedings, continued to reside in Peshawar, Pakistan.

10 Mr Ali was born in Pakistan on 1 April 1986. He is a Pakistani citizen and is the first cousin of Mr Subhan. They were brought up in the same family compound in Peshawar, Pakistan (at least, until Mr Subhan's departure for the UK in 1997). While still resident in Pakistan, Mr Ali obtained a third-level degree in economics.

11 In 2010, at 24 years of age, Mr Ali travelled to the United Kingdom on a four-year student visa. He pursued courses in accountancy and, later, business administration. It is not clear what qualifications, if any, he attained as a result. As a student, Mr Ali lived in the house that his cousin Mr Subhan shared with his parents and siblings. That house is owned by Mr Subhan's brother. For reasons that are not evident on the papers before me, Mr Subhan and Mr Ali entered into a tenancy agreement with Mr Subhan's brother in respect of their occupation of that house on 11 February 2014.

12 Mr Ali's permission to remain in the UK as a student expired on 28 December 2014.

13 In January 2015, Mr Subhan moved to Ireland to seek employment in the exercise of his European Union free movement rights.

14 On 4 March 2015, Mr Ali applied to the UK authorities for further leave to remain there. He asserts that he did so to enable him to apply to various UK universities for admission in the Autumn of 2015 to pursue further studies.

15 On 5 March 2015, Mr Ali unlawfully entered the State from the United Kingdom without a visa by travelling through Northern Ireland and went to reside with Mr Subhan.

16 On 24 June 2015, the Minister received an application from Mr Ali for an EU residence card as a 'permitted family member' of Mr Subhan. While I have not had sight of the relevant application form, it seems the application was made on the basis that Mr Ali was both a dependant and member of the household of Mr Subhan in the country from which he had come, namely the United Kingdom. The applicants have exhibited much of the material that Mr Ali placed before the Minister in support of that application, though not all of it.

17 In August 2015, Mr Ali was granted permission to reside in the State for 6 months, pending the determination of his application for a residence card.

18 On 21 December 2015, an official of the Minister wrote to Mr Ali, notifying him of the Minister's decision to refuse his residence card application under the 2006 Regulations. The reasons given for that first instance decision were, in material part, the following:

"You have failed to submit satisfactory evidence that you are a family member of an EU citizen in accordance with Regulation 2(1) of the Regulations.

You claim to be a member of the household of the EU citizen and submitted a number of documents showing that you and the EU citizen shared a mutual address in the United Kingdom between July 2010 and January 2015, when the EU citizen travelled to Ireland. It is noted that you did not join the EU citizen in this State until March 2015, despite your permission to remain in the United Kingdom expiring in December 2014 and the reasons for this have not been explained.

It is further noted that the EU citizen did not obtain UK citizenship until 08/02/2013, therefore the time that you claim to have been residing as a member of the EU citizen's household is less than two years. It is further noted that the EU citizen's father, brother and sister also shared the same address as you and [the] EU...