The Court of Appeal has issued a highly important and long-awaited decision on the matter of dependency in favour of the Applicants in the cases of Khan and ors. v the Minister for Justice and Equality and K and ors. V the Minister for Justice and Law Reform and the Minister for Foreign Affairs.

The decision is very significant for family members of EU citizens who have applications, or who have previously been refused applications, for visas or residence cards based on the fact that they are dependent on an EU citizen family member.

The Court of Appeal decision will have a very positive impact for dependent family members of EU citizens.

Mr Justice Baker upheld the decision of Mr Justice Faherty in the High Court in finding that the approach of the Minister was unduly restrictive and that the test the Minister had applied was not in accordance with the jurisprudence of the Court of Justice of the European Union.

The Court of Appeal provides a summary of the test for dependency in paragraphs 81-85, stating:

“The test for dependence is one of EU law and an applicant must show, in light of his financial and social conditions, a real and not temporary dependence on a Union citizen. The financial needs must be for basic or essential needs of a material nature without which a person could not support himself or herself. A person does not have to be wholly dependent on the Union citizen to meet essential needs, but the needs actually met but be essential to life and the financial support must be more than merely “welcome”…”

The Court goes on to state:

“82. The concept of dependence is to be interpreted broadly and in the light of the perceived benefit of family unity and the principles of freedom of movement.

83. For the purposes of making the assessment, the proofs required, although remaining in the discretion of Member States, must not impose an excessively burdensome obligation on an applicant or impose too heavy a burden of proof or an excessive demand for the production of documentary evidence. The requested Member State must justify the refusal, and therefore must give reasons which explain and justify he refusal.

84. When the case law identifies the requirement that the dependence be “real”, this means that the dependence must be something of substance, support that is more than just fleeting or trifling, and support that must be proven, concrete, and factually established. However, the applicant does not have to establish that without the real or material assistance he or she would be living in conditions equivalent to destitution. Dependence may be for something more than help to sustain life at a subsistence level and no more.

85. What is to be assessed is whether a family member has a real need for financial assistance and not whether that person could survive without it. Thus stated, it is a test of the facts and not an interrogation of the reasons for the support.”

Regarding the evidential burden for the application, Mr Justice Baker commenced that the Minister had not indicated that no dependence had been established but that insufficient evidence was given in support of the application. In this regard Mr Justice Baker stated:

“109. The findings of Faherty J. were made following a reasoned and careful analysis of the letter setting out the decision of the Minister. I can find no fault in her reasoning, her findings of fact, or the inferences she made. Furthermore, it seems to me that she is correct that the letter from the Minister used language that made the applicants reasonably apprehensive regarding the level of scrutiny, and if, as she found, the level of scrutiny applied was overly strict and not in accordance with EU law, she was correct in her conclusion. Words do matter, and if the language of the Minister departed in its emphasis, tone, and possible import from that in the case law, it seems to me that Faherty J. was correct to grant certiorari. A person receiving correspondence communicating a decision is entitled to know the basis for the decision and to be apprehensive if the decision appears to be based on a negative rather than positive approach to the test to be applied.

110. Further, it appears to me that the application of the test must be done in a rational manner and the decision maker must give reasons that are transparent and involve an objectively reasonable engagement with the facts.

111. I do not accept that it is necessarily the case that a test stated in the negative that requires an applicant to show that it was impossible to live without support from a Union citizen family member is the same as a more positively expressed test which asks whether a person needs support to meet their essential needs. The test stated in the negative imposes a burden which is more onerous that that justified in the light of the authorities of the CJEU analysed above.

112. I consider that Faherty J. was correct that the approach of the Minister was unduly restrictive and that the test applied by the Minister was not in accordance with the jurisprudence of the CJEU. I can find no error in her approach to the facts or in her analysis of the basis on which the application was refused”

As well as stating that a test stated in the positive is more appropriate, that is one which ask whether a person needs the support to meet their essential needs, the judge also notably stated in paragraph 29 that no material difference was apparent in the test for dependency to be applied for a ‘permitted family member’ or a ‘qualifying family member’.

In sum, the judgement advocates for the Minister to indicate the legal test relied on in the assessment of dependency cases and to apply a positive and non-restrictive approach to the assessment of dependency under the EUTR law.

The judgment calls into question the legality of many decisions of the Minister where family members have previously been refused on dependency grounds.

The full judgment will be published shortly on the website of the courts, which can be found here.