Veit Kuhn and Others v Minister for Justice and Equality and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 22 August 2013
• Neutral Citation: [2013] IEHC 424
• Court: High Court
• Date: 22 August 2013

Kuhn & Ors v Min for Justice & Min for Foreign Affairs

No Redaction Needed

JUDICIAL REVIEW

VEIT KUHN, RANIA KUHN, IBRAHIM KHALIL ZAKRI, NAVAL BAHIG MARKUS MEKHAEL, AND MARGARET IBRAHIM ATA KHALIL AND MARY IBRAHIM ATA KHALIL

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY AND THE MINISTER FOR FOREIGN AFFAIRS

RESPONDENTS

[2013] IEHC 424

[674JR/2012]

THE HIGH COURT

IMMIGRATION

Visa

European Union law - Citizens' Directive - Visa - Qualifying family members of European Union citizen - Test to be applied - Dependence - Evidence of dependency - Whether test requiring evidence of assistance for all family members' essential needs - Whether visa officer applied correct test - Whether sufficient reasons given for refusal of visas - Whether refusals ought to be quashed - Jia v Migrationsverket [2007] QB 545 approved - Centre Public d'Aide Sociale Councelles v Lebon [1987] ECR 2811; Chen v Home Secretary [2005] QB 325; O'Leary v Minister for Justice [2012] IEHC 80, [2013] 1 ILRM 509; O'Leary v Minster for Justice [2011] IEHC 256, (Unrep, Hogan J, 30/6/2011) and Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701 considered - European Communities (Free Movement of Persons) (No 2) Regulations 2006 (SI 656/2006), reg 2 - Directive 2004/38/EC, arts 1, 2, 3, 4 and 5 - Constitution of Ireland 1937, Art 41 - European Convention on Human Rights and Fundamental Freedoms 1950, art 8 - Relief granted (2012/674JR - Mac Eochaidh J - 22/8/2013) [2013] IEHC 424

Kuhn v Minister for Justice, Equality and Law Reform

Facts: The applicants sought judicial review of a refusal of a request to grant visas to family in Cairo and inter alia the misapplication of a dependence test pursuant to Directive 2004/38/EC. The applicant made the case that the Cairo family was dependent on the Irish family for the essentials of life. The respondent had held that they had insufficient documentary evidence to substantiate their claims. The question arose as to the application of relevant caselaw.

Held by MacEochaidh J. that it was not possible to see why the case of the family for the assistance they received was inadequate to meet the relevant tests. The family was left in the dark as to why the assistance they received was not evidence of dependence. The claims were assessed and rejected on the same frail basis. The Court would make certiorari orders for all decisions referenced in the pleadings.

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CONSTITUTION ART 41

EEC DIR 2004/38 ART 5(2)

EEC DIR 2004/38 ART 5(4)

EEC DIR 2004/38 ART 2(2)(D)

EEC DIR 2004/38 ART 3(1)

EEC DIR 2004/38 ART 1

EEC DIR 2004/38 ART 2(2)

EEC DIR 2004/38 ART 3

EEC DIR 2004/38 ART 3(2)(A)

JIA v MIGRATIONSVERKET 2007 QB 545 2007 2 WLR 1005 2007 AER (EC) 575 2007 1 CMLR 41 2008 3 FCR 491

CENTRE PUBLIC D'AIDE SOCIALE COURCELLES v LEBON 1987 ECR 2811 1989 1 CMLR 337

CHEN v SECRETARY OF STATE FOR THE HOME DEPT 2005 QB 325 2004 3 WLR 1453 2005 AER (EC) 129 2004 ECR I-9925 2004 3 CMLR 48

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 2

O'LEARY & LEMIERE v MIN FOR JUSTICE 2013 1 ILRM 509 2012 IEHC 80

O'LEARY & LEMIERE v MIN FOR JUSTICE UNREP HOGAN 30.6.2011 2011/41/11934 2011 IEHC 256

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

1 JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 22nd day of August 2013

2 1. The first named applicant is a German national who lives in Ireland and is married to the second named applicant who is Egyptian. During the course of the decisions challenged in these proceedings she became an Irish citizen (14 ^th June 2012). They operate a piano tuning and repair business. The third and fourth named applicants are Egyptian citizens who are the parents of the second named applicant. The fifth and sixth named applicants are also Egyptian nationals and are the adult sisters of the second named applicant. (For ease of reference the first and second named applicants will sometimes be referred to as 'the Irish based family' and the other applicants as 'the Egyptian based family'.)

3 2. On 11 ^th May 2010, the Egyptian based family applied to the Embassy of Ireland in Cairo for a short stay visa (C-class). On 12 ^thand 13 ^th May 2010, these visas were refused. The decision was appealed and on 25 ^th May 2010, the appeals were unsuccessful in respect of the fifth and sixth named applicants (the sisters). The appeals in respect of the third and fourth named applicants (the parents) were upheld and short stay visas were granted to the parents valid from 26 ^th May 2010 to 25 ^th August 2010.

4 3 Further applications for visas were made the following year in August 2011. Both long stay (D-class visas) and short stay (C-class visas) were sought in respect of the parents and the sisters. On 22 ^nd September 2011, the family was informed that the applications had been refused because the applicants had not provided sufficient documentation to satisfy the Visa Officer that they had sufficiently strong obligations to return to Egypt after their intended trip to Ireland, in relation to their short stay visa application, and had failed to show dependence on an EU citizen in relation to their long stay visa applications.

5 4. There being no restriction on the number of visa applications a person can make, the parents again applied for short stay and long stay visas on 6 ^th February 2012, culminating in unsuccessful appeals dated 8 ^th and 9 ^th July 2012. In essence, the officials in the Visa section in the Irish Embassy in Abu Dhabi did not accept that the second named applicant's parents were financially dependent on the Irish based family and it was not accepted that rights under Article 8 of the ECHR and Article 41 of the Constitution had been engaged.

6 5. The second named applicant's sisters also made new applications for short stay and long stay visas on 6 ^th February 2012, and refusals were ultimately communicated to the unsuccessful applicants on 9 ^th July 2012 on the basis that the sisters were not financially dependent on the Irish based family. Neither was it accepted that rights under Article 8 of the ECHR and Article 41 of the Constitution were not engaged.

7 6. Leave to seek judicial review was granted on 30 ^th July 2012 by Cooke J. to permit the applicants to request certiorari of the decisions refusing the D class and C class visas for the family in Cairo. The applicants were also granted leave to seek a declaration that by refusing to provide the visas to the applicants, the State had not complied with Article 5(2) and Article 5(4) of Directive 2004/38/EC and a declaration that through its misapplication of the dependence test in respect of the third and fourth applicants, the State is in breach of Article 2(2)(d) together with Article 3(1) of Directive 2004/38/EC.

8 7. When the matter came on for hearing on 24 ^th January 2013, I suggested that the respondents should have an opportunity to consider the impact, if any, of the naturalisation of the second named applicant as this had not been expressly communicated to the respondent. On 1 ^st February 2013, a further application was made online for long term visas only. Written submissions with enclosures supporting the application were delivered by the applicants' solicitors. The applications were considered by the Visa office in the Irish Embassy in Abu Dhabi. On 10 ^th April 2013, the Egyptian based family was advised by letters that their appeals against refusal were unsuccessful.

9 8. On 16 ^th April 2013, an order was made amending the statement of grounds to incorporate the latest appeal decisions and the parties have consented to a telescoped hearing in relation to the leave aspect of these amendments. Two broad challenges against the relevant decisions of the respondents and their officials are pursued. The applicants claim to be beneficiaries of EU rights deriving from Council Directive 2004/38/EC (the ' Citizens Directive') and the applicants also claim to be the beneficiaries of constitutional rights flowing from the position of the second named applicant, who is now an Irish citizen.

The Citizens Directive

10 9. The Citizens Directive deals with the rights of citizens of the Union and their family members to move and reside freely within the territory of the Union. In simple terms, the Directive guarantees the right of movement and residence in the European Economic Area (being the Union and certain non-Union territories) provided persons will not be a burden on the country of residence and that they have comprehensive health insurance. As can be seen from Article 1, rights are conferred equally on Union citizens and their family members. Article 1 provides:

"This Directive lays down:"

11 (a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;

12 (b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;

13 (c) the limits placed on the rights set out in (a) and (b) and grounds of public policy, public security or public health."

14 10. Article 2(2) of the Directive provides that the qualifying family member of a Union citizen is that person's spouse, long term partner or direct descendants who are dependants (or the under 21 year old child or dependent child of the Union citizen's spouse or partner) and, importantly for these proceedings, a family member includes "the dependant direct relatives in the ascending line and those of the spouse or partner". It is this provision which relates to the second named applicant's parents. Article 3 extends the category of persons who may enter and reside in the host State chosen by the Union citizen. This...