Walia v Minister for Justice and Equality

CourtHigh Court
JudgeMr. Justice Barr
Judgment Date02 June 2022
Neutral Citation[2022] IEHC 339
Docket Number[Record No. 2021/679 JR]
Monika Walia and Marius Avivarei
Minister for Justice and Equality

[2022] IEHC 339

[Record No. 2021/679 JR]


JUDGMENT of Mr. Justice Barr delivered 2 nd day of June, 2022 .


. The first applicant in these proceedings is an Indian national. She is 37 years old, having been born on 25 th September, 1984. She moved to the UK in 2011.


. The first applicant met the second applicant, a Romanian national and EU Citizen, in the UK. She claimed to have begun a relationship with him in 2016. They provided evidence of their joint residence together in the UK.


. The first and second applicants entered the State together in or around 1 st February, 2019. The second applicant works in the State in accordance with his EU Treaty Rights.


. In June 2019, the first applicant applied to be treated as a family member of the second applicant, being an EU citizen, on the basis of her relationship with him, pursuant to Regulation 5(2) of the European Communities (Free Movement of Persons) Regulations 2015 ( S.I. 548/2015) (hereafter, “the 2015 Regulations”). The first applicant sought a residence card on the basis of this relationship. In essence, the first applicant maintained that she had been in a durable relationship with the second applicant since 2016.


. That application was rejected by the respondent by letter dated 8 th October, 2019. The first applicant sought a review of that decision. She completed EU Review Form EU4 on 23 rd October, 2019.


. By letter dated 26 th April, 2021, the respondent refused the first applicant's application to be treated as a family member of the second applicant in accordance with the 2015 Regulations.


. It is this decision that the applicants seek to have set aside by an order of certiorari. Essentially, the applicants maintain that the decision was unlawful because (a) the Minister focused too much on their lack of joint financial commitments and (b) as the decision turned on credibility, the respondent ought to have interviewed the applicants prior to the decision being taken.


. As previously stated, the first applicant is an Indian National, who now resides in the State. The first applicant was previously married to Mr. Mangat Ram, which marriage was registered on 20 th January, 2011. They subsequently divorced in 2013.


. She had moved to the UK on 4 th May, 2011. At that time, she had what is known as a ‘Tier 4’ Student Visa in the UK, which was valid until 2013.


. The applicants met in or around April 2016, in the UK. The applicants have lived together since September 2016. An agreement for rent was exhibited, naming the first and second applicants as tenants of the property, spanning the period 1 st October, 2016 to 31 st March, 2017.


. The second applicant is a Romanian national and EU citizen. He is 41 years, having been born on 23 rd May, 1981. He too was previously married and was divorced from his wife on 23 rd August, 2017. He has one daughter from that marriage. He continues to pay maintenance to his wife for the care of their child. He worked for a construction company in the UK, which has since ceased trading.


. The first applicant applied for a residence card on the basis that she was a de facto partner of the second applicant by form EUA1 and cover letter to the respondent on 5 th June, 2019.


. The respondent wrote to the applicant on 10 th June, 2019, pointing out that her passport had expired in 2014 and enquired as to whether she had applied for a visa to enter the State before having entered it in February 2019. That letter also sought further information from the first applicant in relation to her relationship with the second applicant. It also invited her to submit further documentation in relation to her relationship with the second applicant. That letter requested that the applicant furnish the respondent with:

Evidence that you are a family member of the EU citizen

For partnership:

Evidence of cohabitation for the last two years (e.g. tenancy agreements, utility bills)

Evidence of a durable relationship (e.g. evidence of jointly-owned assets, evidence of a shared bank accounts or insurance, evidence of travel, birth certificates of any children of the partnership)”.


. No further information or documentation was provided by the applicants in response to that letter.


. By letter dated 8 th October, 2019, the respondent refused the first applicant's application for a residence card pursuant to the 2015 Regulations.


. On 23 rd October, 2019, the first applicant sought a review of that decision and submitted her Form EU4. By letter dated 1 st November, 2019, the Minister invited the applicants to submit all information that they wished to have considered on the review of the initial decision. By letter dated 4 th December, 2019, the applicants submitted further documentation in the form of bank statements in respect of the account held in their joint names for the period 26th April, 2019 to 23 rd July, 2019.


. On 26 th April, 2021, the Minister issued her decision on the review, which refused the first applicant's application for a residence card under the 2015 Regulations.


. On 29 th July, 2021, the applicants obtained leave to challenge that decision by way of judicial review.

Submissions of the Parties.

. While a number of grounds of challenge to the decision of 26 th April, 2021 were put forward in the statement of grounds and in the written legal submissions submitted on behalf of the applicants, at the hearing, the challenge to the impugned decision was refined down to two core grounds: (i) that the decision which had been made on behalf of the Minister had applied the incorrect test, because it had focused, if not exclusively, then to an impermissibly large extent, on the absence of joint financial commitments between the applicants; (ii) that as the decision effectively involved a determination on the credibility of the applicants, in that the decision-maker did not believe that they were in a durable relationship akin to marriage, this required that they be given some form of oral hearing, probably in the nature of an interview and, as that had not happened, the decision was unsound in law.


. In relation to the first ground of challenge, Mr. Shortall SC on behalf of the applicants, submitted that the Minister had placed a heavy degree of reliance on the absence of evidence that the first and second applicants had joint financial commitments, either in the form of joint financial liabilities, or jointly owned assets. It was submitted that it was both unrealistic and unfair to expect people who were in the situation of the applicants to have evidence of extensive financial commitments between them.


. In this regard, it was pointed out that the first applicant did not have any extant permission to be in the State and therefore was not in a position to work legally within the State. The second applicant had left his position of employment in the construction industry in the UK and had taken up employment in a pizza restaurant in Limerick when he came into the State in 2019. While the exact amount of his wages from the pizza restaurant was not stated, a payslip from the restaurant had been one of the documents that was submitted with the application. This was dated 17 th May, 2019. It showed that the second applicant had a gross weekly wage of €235.10, with net pay of €169.27. Out of that, it had been stated in the form EU1A that the second applicant paid €40 per month for the maintenance of his daughter.


. It was submitted that in these circumstances, there was no reality to expecting couples, such as the applicants, to be in a position to produce evidence of joint financial liabilities or assets. The reality was that they were not in a position to take out any extensive loans or mortgage, nor could they afford to have any substantial jointly owned assets. It was submitted that in the Minister's letter of 10 th June, 2019, the Minister had stipulated that such documentation should be produced. It was submitted that when the applicants were not in a position to produce same, a negative decision had resulted.


. It was submitted that this approach ran contrary to the principles that had been set down by the Supreme Court in Pervaiz v. Minister for Justice and Equality [2020] IESC 27, as applied by this court in Singh & Anor. v. Minister for Justice and Equality [2022] IEHC 284. Counsel submitted that the views that had been expressed by the court in the Singh case at para. 91, in relation to the lack of reality and unfairness of expecting people with very limited financial means to be in a position to provide evidence of joint financial commitments, applied with equal force in the present case.


. The second ground of challenge put forward on behalf of the applicants, related to the lack of an oral hearing, in the form of an interview, in the context of the review decision that had been taken by the Minister. It was submitted that where the decision made by the Minister effectively turned on the credibility of the applicants, there was a minimum requirement that at least an interview with them should take place.


. The essence of this submission was summarised in the following way in the written submissions furnished on behalf of the applicants at para. 36:

“In the present case, the Minister has made a finding that there is insufficient evidence of a de facto relationship. That, in part goes to the credibility of the applicants. While an opportunity to respond to the Minister's findings has been given, it has not been a meaningful opportunity to respond, absent an oral hearing and/or independent, merits–based appeal, which allows the applicants a genuine opportunity to defend adverse credibility claims. The Minister's failure to conduct...

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