V.K. v The Minister for Justice and Law Reform Khan v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Ms Justice Baker |
| Judgment Date | 30 July 2019 |
| Neutral Citation | [2019] IECA 232 |
| Date | 30 July 2019 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [C.A. Nos. 990 of 2014 and 43 of 2018],Neutral Citation Number: [2019] IECA 232 Appeal No. 2018/43 |
[2019] IECA 232
THE COURT OF APPEAL
Baker J.
Irvine J.
Baker J.
Costello J.
Neutral Citation Number: [2019] IECA 232
Appeal No. 2014/990
Appeal No. 2018/43
AND
AND
AND
AND
AND
Judicial review – European Communities (Free Movement of Persons) (No. 2) Regulations 2006 – Qualifying family member – Appellant seeking to appeal against orders of certiorari – What is the test to be applied in assessing the meaning of “qualifying family member” with the meaning 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. L/158, 30.4.2004
Facts: These appeals to the Court of Appeal by the appellant, Minister for Justice, in judicial review proceedings raised a broadly similar question concerning the interpretation and operation of the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (S.I. No. 656/2006), transposing 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. L/158, 30.4.2004. The first appeal was against the judgment K. v Minister for Justice and Equality [2013] IEHC 424, of 22 August 2013 and order of 17 September 2013 of Mac Eochaidh J, by which he granted the order of certiorari by way of judicial review of the decision of the Minister refusing permission to enter and remain in the State pursuant to the 2006 Regulations. The second appeal was against the judgment of Faherty J, Khan v Minister for Justice, Equality and Law Reform [2017] IEHC 800, of 27 October 2017 and order of 10 November 2017 by which she granted an order of certiorari by way of judicial review of the decision of the Minister to refuse the third and fourth applicants, the respondents in the appeal, permission to enter and remain in the State pursuant to the 2006 Regulations. The net question of law for determination in the appeals concerned the test to be applied in assessing the meaning of “qualifying family member” with the meaning of the Citizens Directive, and the standard to be applied in assessing dependency and the degree of scrutiny to be engaged by the decision maker.
Held by Baker J that Mac Eochaidh J was not wrong in his analysis and identification or interpretation of the correct test that ought to have been applied. In Baker J’s view, Mac Eochaidh J was correct in his conclusions. Baker J could find no fault in Faherty J’s reasoning, her findings of fact, or the inferences she made.
Baker J held that the appeals would be dismissed and that the matters should be returned to the Minister for further decision.
Appeals dismissed.
These appeals by the Minister for Justice (‘the Minister’) in judicial review proceedings raise a broadly similar question concerning the interpretation and operation of the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 ( S.I. No. 656/2006) as amended (‘the 2006 Regulations’), transposing 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. L/158, 30.4.2004 (‘the Citizens Directive’).
The first appeal is against the judgment K. v. Minister for Justice and Equality [2013] IEHC 424 (now anonymised as the parties have been granted asylum status), of 22 August 2013 and order of 17 September 2013 of Mac Eochaidh J., by which he granted the order of certiorari by way of judicial review of the decision of the Minister refusing permission to enter and remain in the State pursuant to the 2006 Regulations.
The second appeal is against the judgment of Faherty J., Khan v. Minister for Justice, Equality and Law Reform [2017] IEHC 800, of 27 October 2017 and order of 10 November 2017 by which she granted an order of certiorari by way of judicial review of the decision of the Minister to refuse the third and fourth applicants, the respondents in the appeal, permission to enter and remain in the State pursuant to the 2006 Regulations.
The net question of law for determination in the appeals concerns the test to be applied in assessing the meaning of ‘qualifying family member’ with the meaning of the Citizens Directive, and the standard to be applied in assessing dependency and the degree of scrutiny to be engaged by the decision maker.
The judgment of Faherty J. was given more than four years after the judgment of Mac Eochaidh J., and after there had been further clarification by the Court of Justice of the European Union (‘CJEU’) of the relevant tests in Reyes v. Migrationsverket (Case C-423/12), ECLI:EU:C:2014:16. Mac Eochaidh J gave his judgment before Reyes v. Migrationsverket, but he anticipated much of its reasoning.
The 2006 Regulations have now been replaced by the European Communities (Free Movement of Persons) Regulations 2015 ( S.I. No. 548/2015) (‘the 2015 Regulations’), which entered into force in February 2016.
As the same legal questions arise for consideration in both cases, it is convenient to deal with them in sequence after having first considered the respective background facts and the present state of the law.
The first respondent, Mr K, is a German citizen who is married to the second respondent, Mrs K, an Egyptian citizen who became a naturalised Irish citizen during the course of the proceedings, in June 2012. Mr and Mrs K reside in the State and together operate a piano tuning and repair business. The third and fourth respondents are Egyptian citizens and the parents of the second respondent (‘the parents’). The fifth and sixth respondents are also Egyptian nationals and are the adult sisters of the second respondent (‘the sisters’).
The parents and sisters live in Egypt and the proceedings relate to applications made by them for visas to enter and remain in the State as will appear more fully below.
The parents had been granted short stay (C-class) visas in 2010, following a successful appeal against the Minister's refusal decision, whereas the sisters who had applied for visas at the same time which were also refused, were not. The parents and sisters made further applications in August 2011 and February 2012 for long stay (D-class) visas under the Citizen Directive, which were in turn refused by the Minister on the grounds that inter alia, they had failed to show dependence on a Union citizen. It is these refusals that were challenged in the judicial review.
On 30 July 2012, Cooke J. granted leave to seek judicial review of the decisions of the Minister of 8 and 9 July 2012 refusing the February 2012 applications and for a declaration that the Minister had wrongly applied the test of dependence and that the applicants had rights deriving from the status of the second applicant who was by then a naturalised Irish citizen.
Following an order of 16 April 2013 the statement of grounds was amended to incorporate a challenge to the decision of 10 April 2013 of the Visa Appeals Officer upholding the refusal decision of the Visa Officer, and to take into account the constitutional plea of the second respondent who had, by that time, become a naturalised Irish citizen.
The parents and sisters have been granted refugee status and the appeal of the Minister while moot to that extent, is brought in the light of the importance of the analysis of Mac Eochaidh J. of the correct test of dependence for the purpose of the Citizens Directive.
The first and second respondents, Mr and Mrs Khan, are a married couple and UK citizens. They reside in Ireland and are registered owners of the property in which they live with their four children who are all UK citizens. Both the respondents work in the State. The first respondent works as a taxi driver and is a part time student. The second respondent is a senior accountant working in a permanent position in a private accountancy firm. The third and fourth respondents are Pakistani citizens and the parents of the first respondent. They were born in 1945 and 1956 respectively and applied for visas to enter the State in early 2013. I will refer to them where appropriate collectively as ‘the parents’.
This judicial review concerns the refusal of an application for visas, the third such refusal since 2013.
The relevant applications were made in 2015 for visas, vouched by evidence of financial support from the first and second respondents, information in respect of the rental agreement of the home of the parents in Pakistan, and of their financial position. A bank account statement of the fourth applicant was also furnished and a medical report showing that the third applicant, the first respondent's father, had a history of heart disease. Those visa applications were refused by letters of 2 July 2015.
The refusal of the visas was appealed through IK Immigration Consultants by letter of 27 August 2015. The appeal was rejected, and the reasons therefore set out in a letter of 6 October 2015. It is with regard to the reasons given in those letters that this application for judicial review was commenced.
As the two appeals concern the correct interpretation and application of the 2006 Regulations which transposed the Citizens Directive, it is helpful to now set out the relevant provisions and the analysis of the CJEU concerning the meaning of dependence and the...
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