Subhan v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms Justice Baker
• Judgment Date: 19 December 2019
• Neutral Citation: [2019] IECA 330
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal No.: 2018/362
• Date: 19 December 2019

BETWEEN/

SHEHARYAR RAHIM SUBHAN

AND

ASIF ALI

APPLICANTS/APPELLANTS

- AND -

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2019] IECA 330

Baker J.

Whelan J.

McGovern J.

Appeal No.: 2018/362

THE COURT OF APPEAL

Residence card – Permitted family member – Judicial review – Appellant seeking judicial review – Whether the trial judge erred in interpreting the meaning of the term “members of the household of the Union citizen” in the definition of “permitted family member” found in the European Communities (Free Movement of Persons) (No. 2) Regulations 2006

Facts: The appellants, Mr Subhan and Mr Ali, appealed to the Court of Appeal from the order of Keane J made on 31 July 2018 following delivery of a written judgment, [2018] IEHC 458, by which he refused to grant judicial review of a decision of the respondent, the Minister for Justice and Equality, made on 15 August 2016 refusing the application of Mr Ali for a residence card pursuant to the provisions of the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (S.I. No. 656 of 1990) implementing article 3 of 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). The notice of appeal identified six numbered grounds of appeal, summarised as follows: (1) the trial judge erred in interpreting the meaning of the term “members of the household of the Union citizen” in the definition of “permitted family member” found in the 2006 Regulations (grounds 1, 2, 3 and 4); (2) the trial judge erred in concluding that the Minister had given sufficient reasons for the conclusion that Mr Ali was not dependent on his first cousin (ground 6); and (3) the trial judge erred in concluding that the Minister had properly “facilitated” the application in accordance with article 3(2) of the Citizens Directive and, specifically, erred in his conclusion that the Minister did not fail to provide guidance as to the type of information required to establish either dependency or membership of a household (ground 5).

Held by Baker J that it is the Union citizen who is to be the beneficiary of the Citizens Directive and the Union citizen’s rights are protected if, inter alia, a permitted family member is entitled to accompany or join the Union citizen in the host Member State. Baker J held that, while the caselaw does mention the maintenance of the unity of the family in a broader sense, that unity can be said to be an objective of the Citizens Directive only and to the extent in which it assists the Union citizen in the exercise of rights where he or she might be dissuaded from moving to another Member State without the presence of close relatives. Baker J held that living arrangements are not to be viewed with a bird’s eye view of a single moment in time but rather some regard must be had to the durability of the co-habitation, and also of what future intentions can be objectively presumed regarding the continued existence of the household. Baker J held that the correct approach is to look at the core family connections of the Union citizen and how those core connections may properly be understood and supported to enable free movement and establishment of the Union citizen in the host Member State. Insofar as it was sought to argue that the Minister failed to state what test of “dependency” had been applied, Baker J held that this proposition did not form part of the grounds on which leave to bring judicial review was given by the order of Barr J made on 12 September 2016, and accordingly could not form the basis of an appeal. Baker J held that the documentation did not, on the facts, explain the financial means and needs of Mr Ali and how his means were insufficient to meet his essential needs without the financial support of his first cousin. Baker J found that that the evidence did show that the decision maker engaged in detail with the documentation, and interrogated the various vouching documentation furnished.

Baker J held that all grounds of appeal must fail.

Appeal dismissed.

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

1 This appeal concerns the test under the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 ( S.I. No. 656 of 1990), as amended (“the 2006 Regulations”) implementing 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”), by which a person is assessed as being a “permitted family member” of a Union citizen for the purposes of the grant of permission to enter and remain in the State.

2 The appeal is from the order of Keane J. made on 31 July 2018 following delivery of a written judgment, Subhan v. Minister for Justice and Equality [2018] IEHC 458, by which he refused to grant judicial review of a decision of the Minister for Justice and Equality (“the Minister”) made on 15 August 2016 refusing the application of Mr Ali, the second appellant, for a residence card pursuant to the provisions of the 2006 Regulations implementing article 3 of the Citizens Directive.

3 The purpose of the Citizens Directive is set out in some detail in the recitals and will be considered below, but in essence it can be said to have been adopted to support the right of free movement and residence of Union citizens and of their family members. In furtherance to such objective, the Directive imposes obligations on Member States to facilitate the right of extended family members of Union citizens irrespective of their nationality to also move and reside freely, which derives from the right of Union citizens to maintain the unity of the family in a broader sense.

4 The 2006 Regulations implemented the Directive and provide in domestic law for the means by which a Union citizen and his or her family member may enter and reside in the State.

Factual Background

5 Mr Subhan and Mr Ali were both born in Pakistan. Mr Subhan was born in 1978, he moved to the United Kingdom with his parents in 1997 and became a naturalized British citizen on 8 February 2013. He moved to Ireland in January 2015, was employed thereafter for a few months, and since October 2015 has been self-employed within the State. After he came to reside in Ireland he married a woman who is a Pakistani citizen and who, at the time of the High Court proceedings, resided in Peshawar, Pakistan, and it would appear she continues to so reside.

6 Mr Ali is the first cousin of Mr Subhan and was born in 1986. The two first cousins were brought up in the same family compound in Peshawar until Mr Subhan moved to the United Kingdom when his young cousin was eleven.

7 Mr Ali has a third level degree in economics from a university in Pakistan, and in 2010 he travelled to the United Kingdom on a four-year student visa where he pursued a course in accountancy and, later, business administration. While he was studying he resided with his cousin and his cousin's parents and other siblings in a house owned by Mr Subhan's brother. Mr Subhan and Mr Ali entered into a joint tenancy agreement for one year certain with that brother on 11 February 2014, some four years after Mr Ali came to reside in the United Kingdom, and less than an year before Mr Subhan came to reside in the State.

8 Mr Ali's permission to remain in the United Kingdom as a student expired on 28 December 2014 and some ten weeks later, on 5 March 2015, he unlawfully entered the State without a visa by travelling through Northern Ireland. He went to reside with his cousin in his home in a provincial town.

9 On 24 June 2015, Mr Ali applied for an EU residence card as a permitted family member of Mr Subhan in which he claimed that he was dependent upon Mr Subhan and was, for the purposes of the 2006 Regulations, a member of his household in the country from which he had come, the United Kingdom.

10 By a decision issued on 21 December 2015, the Minister refused his application for a residence card. A review was sought of that decision and the decision of the review communicated by letter of 15 August 2016 to Mr Ali states the following:

“The Minister has examined the supporting documentation submitted in support of your application for residence in the State under EU Treaty Rights. I am to inform you the Minister is satisfied that you have not established that you are in fact dependent [on] the EU citizen Sheharyar Rahim Subhan. In respect of your residence in the United Kingdom you have provided evidence that you resided at the same address as the EU citizen Mr Subhan, however, you have not established that the EU citizen was in fact the head of that household in the United Kingdom.”

11 Early in the letter, the Minister had stated that Mr Ali had failed to submit satisfactory evidence that he was a family member of the Union citizen and set out the uncontroverted facts which have been broadly outlined above.

12 The application for judicial review was grounded on an affidavit of Mr Subhan and one of Mr Ali both sworn on 8 September 2016. The trial judge took the view that the replying affidavit of Garrett Byrne sworn on 10 August 2017 had impermissibly sought to clarify the reasons for the decision of the Minister, and it seems to me that trial judge was right to assess the correctness of the decision on its own terms, as he stated in para. 56, and that approach was not seriously in contention in the appeal.

13 The affidavit of Mr Subhan set out that he had lived in the United Kingdom for fifteen years before he was naturalised there in February 2013, that he is married to a Pakistani citizen since February 2016, and that she continues to reside in Pakistan. He says that he moved to Ireland in January 2015 for employment in the IT sector, and...