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SUPREME COURT TO MAKE A REFERENCE TO THE CJEU IN SUBHAN AND ALI TEST CASE

Supreme Court to make a reference to the CJEU in Subhan and Ali test case

SUPREME COURT TO MAKE A REFERENCE TO THE CJEU IN SUBHAN AND ALI TEST CASE

On the 21st December 2020, the Supreme Court delivered its judgment in the case of Subhan and Ali v the Minister for Justice and Equality.

The applicants, who are clients’ of Berkeley Solicitors, issued proceedings to challenge a refusal of the EU residence card on the basis that the applicant was not a member of the household of the EU citizen. For further details on this case, refer to our previous article below:

https://berkeleysolicitors.ie/court-of-appeal-judgment-on-membership-of-the-same-household-in-eu-treaty-rights-cases/

The Subhan and Ali case has become a test case to establish the meaning of the term members of the household of the Union citizen” for the purposes of the Citizens’ Directive, and has a number of cases following it in the High Court holding list.

Mr Justice Charleton, who delivered the judgement on behalf of the Supreme Court today, stated the issue as to who is a member of the household of an EU citizen when exercising rights of free movement from one country to another, requires reference to the CJEU.

The questions to be referred to the CJEU are as follows:

  1. Can the term member of the household of an EU citizen, as used in Article 3 of Directive 2004/38/EC, be defined so as to be of universal application throughout the EU and if so what is that definition?
  2. If that term cannot be defined, by what criteria are judges to look at evidence so that national courts may decide according to a settled list of factors who is or who is not a member of the household of an EU citizen for the purpose of freedom of movement?

The reference to the CJEU is welcomed as this should finally bring clarity to who is entitled to a residence card as a member of the EU citizen’s household.

Further updates on this case will be posted here.

DEPARTMENT OF JUSTICE PUBLISHES NOTICE FOR NON-EEA FAMILY MEMBERS OF BRITISH CITIZENS WHO ARE RESIDING IN IRELAND

On 17th September 2020, the Department of Justice published an updated notice regarding the status of non-EEA family members of British citizens who are residing in Ireland.

The Brexit transition period is due to end on 31st December 2020.

The notice states as follows:

From the end of the transition period, non-EEA family members of British citizens that are newly resident in Ireland will not come within the scope of the EU Free Movement Directive. A separate preclearance scheme will apply to such persons seeking to reside in the State, and they should be in possession of a valid travel document and, if required, an Irish entry visa or transit visa for the State.”

We at Berkeley Solicitors welcome this update but the lack of clarity is concerning. The notice does not provide any information as to what will happen to applicants who have pending EUFam residence card applications that remain undetermined by 31st December 2020.

Our clients still do not have confirmation of what immigration rules and financial thresholds will be applied to residence/ pre clearance applications from the family members of British citizens after the 31st December 2020.

While the notice states that a separate preclearance scheme will apply to such persons seeking to reside in the State after the end of the transition period, details of the new preclearance scheme have not yet been announced.

We are also aware that a large number of residence applications for non-EEA family members of British citizens are taking considerably longer than six months to be determined. This is of great concern as the Minister is breaching the obligation to determine these applications within a six-month timeframe, thereby putting British citizens and their family members at risk that they may be refused after the 31st December 2020.

The full notice can be read here.

If you or your family are impacted by these issues please do not hesitate to contact the office.

HIGH COURT JUDGEMENT ON TEST FOR DEPENDENCY IN EU TREATY RIGHTS CASES

On 10th June 2020, Mr Justice Humphreys delivered his judgement in the case of Asif Rashid and Qasim Rashid v The Minister for Justice and Equality [2020] IEHC 333.

The first-named applicant is a British citizen, and his brother, the second-named applicant, is a citizen of Pakistan.

The central issue in the case was whether the Minister for Justice had erred in finding that no relationship of dependency had been established between the first and second-named applicants.

The Court ultimately upheld the decision of the Minister for Justice to refuse the second-named applicant’s application for residence based on his dependency on his EU Citizen brother.

Mr Justice Humphreys emphasised that the test for dependency in EU Treaty Rights cases is “definitively to be found in the CJEU jurisprudence, the most helpful summary of which is at paras. 19-28 of Case C-423/12 Reyes v. Migrationsverket”.

The Court found that the concept of dependency as defined in national case law, most notably in the case of VK v Minister for Justice and Law Reform [2019] IECA 232, does not change or add to the test for dependency established by existing CJEU jurisprudence.

In this regard the Court stated at paragraph 10:

“…the test has been phrased in different ways in different cases so the V.K. judgment should most certainly not be treated as a statute imposing another finer mesh of procedural and substantive legal complexity on top of the existing law. The really central point is the one [Baker J] makes at para. 81 of her judgment that “The test for dependence is one of EU law”. Therefore, any paraphrases in national jurisprudence are just that; and any language in any Irish case that is not found in CJEU jurisprudence is not creating or changing the CJEU jurisprudence. The latter remains the primary source of the meaning of dependency irrespective of any decisions at national level.”

The Court stated that the key issues in establishing dependency are the regularity of money transfers to the dependant applicant over a significant period, the necessity of those payments in enabling the dependant to support himself or herself in their country of origin, the financial and social conditions of the dependant, and the demonstration of a real situation of dependence.

Importantly, the Court emphasised that the payment of significant sums on a regular basis to the dependant in the country of origin, will not, by itself, constitute sufficient evidence of dependency.

This judgment of the High Court can be seen as a more conservative approach to the concept of dependency in EU Treaty Rights cases.

The full judgement can be read here.

If you or a family member have queries about EU Treaty Rights, please do not hesitate to contact the office.

Supreme Court to make a reference to the CJEU in Subhan and Ali test case

SOCIAL DEPENDENCY IN EU TREATY RIGHTS CASES

Applications for visas and residence cards for family members of EU citizens pursuant to EU Treaty Rights often require proof that the Applicant is dependent on their EU Citizen family member.

The concept of dependency is not defined in the Citizens’ Rights Directive (Directive 2004/38/EC) or the European Communities (Free Movement of Persons) Regulations 2015. However, case law of the Court of Justice of the EU has established that an Applicant must show that they are not in a position to support themselves, having regard to their financial and social conditions.

Thus, while dependency is often assessed in terms of the existence of financial support between the Applicant and the EU Citizen, it can also arise from social, emotional and medical circumstances.

Several recent judgments of the High Court have shed some light on the importance of social dependency in EU Treaty Rights cases.

The case of Chittajallu v The Minister for Justice and Equality, Record Number 2019/28, in which Berkeley Solicitors were acting for the Applicant, involved a British citizen who submitted a visa application for her dependent mother.

In his judgment delivered on 11th July 2019, Mr Justice Barrett highlighted that the Minister had not properly considered the issue of social dependency arising from the Applicant’s medical circumstances in the initial decision.

Berkeley Solicitors also acted for the Applicant in the case of Agha v The Minister for Justice and Equality, Record Number 2019/374, the facts of which similarly involved a British citizen who applied for a visa for his elderly dependent mother who had serious health issues and was not capable of living independently.

In his judgment of 23rd December 2019, Mr Justice Barrett states at paragraph 6:

“There is a further separate error presenting in this regard, viz. that, in breach of European Union law, the Minister did not have any regard to the particular illness of Mr Agha’s mother and how this impacted on dependence…

As is clear from Jia, at para. 37 (as touched upon in Chittajallu v. Minister for Justice & Equality [2019] IEHC 521, at para. 4): “in order to determine whether the relatives in the ascending line…are dependent…the host Member State must assess, whether, having regard to their financial and social conditions, they are not in a position to support themselves” [Emphasis added]. No such analysis was not undertaken here…”

It is clear from the above High Court decisions that a failure to take into account an Applicant’s social dependency on the EU citizen constitutes a breach of EU law. An analysis of the Applicant’s financial dependency alone will not be sufficient.

In both of the above cases, the Court ruled that the initial refusal was unlawful and remitted the matter to the Minister for fresh consideration.

This is a positive development for family members who are dependent on their EU Citizen family member for reasons other than, or in addition to, their financial circumstances.

Social dependency may arise from factors such as an Applicant’s medical circumstances or the nature of the social and emotional relationship between the Applicant and the EU Citizen.

If you or a family member wish to discuss an EU Treaty Rights application, please do not hesitate to contact our office.

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

Supreme Court to make a reference to the CJEU in Subhan and Ali test case

COURT OF APPEAL JUDGMENT ON MEMBERSHIP OF THE SAME HOUSEHOLD IN EU TREATY RIGHTS CASES

On the 19th December 2019, the Court of Appeal delivered its judgment in the case of Subhan and Ali v the Minister for Justice and Equality, in which Berkeley Solicitors acted for the Applicants.

The decision is significant for family members of EU citizens who have applications, or are considering making applications, for visas or residence cards based on the fact that they are members of the same household of an EU citizen family member under 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, (‘the Citizens Directive’).

The case concerned the refusal of an EU Fam residence card to the cousin of a British citizen, who had lived as the member of his household for many years in the United Kingdom prior to moving to Ireland.

The central issue before the Court of Appeal was the meaning of the term ‘household of the Union Citizen’  for the purposes of the Citizens’ Directive.

The Applicants argued that the household of the Union citizen consists of those persons who are family members and who reside in the same dwelling as the Union citizen. The Respondent argued that what is to be established is that the household concerned is that of the Union citizen, and that the centrality of the Union citizen in the family living arrangements is to be assessed.

The Applicants also put forward submissions regarding other language versions of the term ‘membership of the same household’ and found that there was no ‘head of the household’  test in those versions.

Ms Justice Baker ultimately upheld the decision of the High Court in finding that the criterion of ‘membership of the same household’ is not simply established where family members live under the same roof. Rather, members of the household of the Union citizen must be those persons who are some way central to the family life of the Union citizen.

The Court held:

“68. It may be more useful to consider the notion of household by reference to what it is not. Persons living under the same roof are not necessarily members of the same household and they may well be what we colloquially call housemates. An element of sharing that is necessary in a household may well be met in that the persons living together may agree on a distribution of household tasks and a proportionate contribution towards household expenses. But because, for the purpose of the Citizens Directive, one must focus on the living arrangements of the Union citizen, the members of the household of the Union citizen must, on the facts, be persons who are in some way central to his or her family life, that those family members are an integral part of the core family life of the Union citizen, and are envisaged to continue to be such for the foreseeable or reasonably foreseeable future. The defining characteristic is that the members of the group intend co-living arrangement to continue indefinitely, that the link has become the norm and is envisaged as ongoing and is part of the fabric of the personal life of each of them.

69. It is not a test of with whom the Union citizen would choose to live, but rather, with whom he or she expects to be permitted or facilitated to live in order that his or her family unit would continue in being, and the loss of whom in the family unit is a material factor that might impede the Union citizen choosing to or being able to exercise free movement rights. That second element, it seems to me, properly reflects the core principle intended to be protected by the Citizens Directive.

70. It may be dangerous to give an example, and I do so by way of illustration only. A family member who had resided in the same house as a Union citizen for many years before free movement rights were exercised might well have become a member of the family with whom there has developed a degree of emotional closeness such that the person is integral to the family life of the Union citizen. That person could be a member of a household because the living arrangements display connecting factors that might, in an individual case, be termed a “household”. If the rights of free movement of a Union citizen within the group are likely to be impaired by the fact of that living arrangement, whether for reasons of the moral duty owed to the other members of the group or otherwise, then the rights under the Citizens Directive fall for consideration.”

The Court found that the EU Citizen’s Free Movement rights where not impeded or restricted by refusing a right of residence to his family member in this case.

The full judgment has been published on the website of the courts and can be found here.

IMPORTANT JUDGEMENT RELATING TO PERMITTED FAMILY MEMBERS IN EU TREATY RIGHTS APPLICATIONS: AF AND AF V THE MINISTER FOR JUSTICE AND EQUALITY

Berkeley Solicitors is happy to announce that our clients have obtained a successful decision from the High Court in relation to permitted family members in EU Treaty Rights applications pursuant to Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015. Mr Justice Barrett delivered this important judgement on the 26th September 2019.

We believe that this judgment will have an extremely positive impact on permitted family members for such applications.

The case concerned two applicant brothers- ‘Brother A’, a British citizen resident in Ireland for employment purposes and ‘Brother B’, the dependent of Brother A and a Pakistani citizen living in Ireland as a student since 2014.

The High Court found that the Minister’s refusal of the application for an EU residence card for the dependent brother was unreasonable and to some extent irrational, and therefore quashed the Minister’s decision.

The court accepted the applicant’s arguments that Brother B’s country of previous residence is Ireland, contrary to the Minister’s argument that the country of previous residence was Pakistan.

Relying on Rahman, the court reaffirmed that the phrase “in the country from which the person has come” in relation to permitted family members, as appears in both the Directive and the 2015 Regulations, refers to the State he was resident in when he applied to join the Union citizen.

At paragraphs 7 and 8, the court states that:

Although visa applications are typically made outside Ireland, in this instance, Brother B had permission in his own right to reside in Ireland as a student on the date the application was made and therefore the Minister was mistaken in maintaining that Pakistan was the country Brother B came from.

The court further clarified that even in the case of (incorrectly) considering Pakistan as the country from which Brother B had come, Brother A’s actions with respect to housing and financing Brother A’s education in Ireland would remain relevant insofar he was consistently supporting by his brother to the point of dependency.

Mr Justice Barrett specifically addressed the nature of evidence provided in support of EU Treaty Rights Applications referring to the statements made by the applicants. He reaffirmed that when applicants make/sign the declaration for the completion of the EU1A form, certain weight is afforded to the evidence provided in and with the application.

Mr Justice Barrett took a fair and reasonable approach to the provision of documents maintaining that very few people can produce/receive or retain documentation with regards to every aspect of their lives, even in the case of the most important aspects of one’s life.

The Judge remarked that in reality there is a limit to what one applicant can produce in terms of documents.

Mr Justice Barrett went on to provide a summary of the concept for dependency confirming that it means:

15. “that members of the family of a community national… need the material support of that Community national… in order to meet their essential needs in the State of origin of those family members or the State from which they have come at the time when they apply to join the Community national”.

Referencing Kuhn and Ors, Mr Justice Barrett echoed that material support includes financial contribution but does not require that the entirety of the cost of essential needs be covered by person providing support.

This judgement advocates, in light of Article 3(2) of the Citizen’s Right Directive, for a relatively generous test as to what constitutes dependency.

A point that the court felt important to note, was that in a situation where material support is not provided directly to the dependent but to others, the dependent is not precluded from being described as such because dependent relationships can include both direct dependency and/or vicarious dependency.

Specifically addressing the issue of dependency in Pakistan, in paragraph 23, Mr Justice Barrett found the Minister’s assertion that the applicants had not provided evidence that without the small cash transfers, Brother B would not have been able to support himself in Pakistan was unreasonable.

Highlighting that Brother B was unemployed in Pakistan and therefore clearly dependent on someone for his income, the High Court was unable to see in this regard:

23(ii). “how Brother B could prove that if he was not in the position that he found himself to be in, he would still not have been able to support himself; how could he possible demonstrate that?”.

In conclusion, the court granted an order of certiorari which means that the Minister’s refusal of the application as a result of the court’s findings is withdrawn and that the application be reconsidered by the minister.

We believe that this judgement will have a positive effect for other applicants who are permitted family members and awaiting the outcome of their EU residence card applications.

The full judgement will be posted here shortly.

 

 

MINISTER RULED TO HAVE BEEN INCORRECTLY APPLYING EU LAW RELATING TO MEMBERSHIP OF THE SAME HOUSEHOLD

The High Court has issued a very important ruling in Shishu & anor -v- The Minister for Justice and Equality [2019] IEHC 566, which provides that the Minister for Justice has incorrectly applied EU law as it relates to the issue of residence cards to dependent family members and members of the same household of an EU citizen who is exercising his or her right to free movement in the State.

This case was brought by two brothers, the first, a naturalised British citizen living and working in Ireland and the second, a citizen of Bangladesh who claims that he lived with and as a dependant of his EU citizen brother in the UK before his brother moved to Ireland to live and work and he travelled to join him in the State.

An application had been made to the Minister for a residence card to be issued to the second brother on the basis that he is the dependant of and a member of the household of the first within the meaning of Regulation 5.1 of the European Communities (Free Movement of Persons) Regulations 2015, which states the following:

Permission for permitted family member to enter State

  1. (1) This paragraph applies to a person who—

(a) irrespective of his or her nationality, is a member of the family (other than a qualifying family member) of a Union citizen to whom paragraph (2) applies and who in the country from which the person has come—

(i) is a dependant of the Union citizen,

(ii) is a member of the household of the Union citizen, or

(iii) on the basis of serious health grounds strictly requires the personal care of the Union citizen, or

(b) is the partner with whom a Union citizen has a durable relationship, duly attested.

This application was refused in October 2018, with the Minister citing insufficient documentation evidencing the applicant’s dependency on his brother and his membership of the same household in the UK prior to the applicant’s travel to Ireland.

The Judge however found that in this case the documentary evidence provided as to membership of the same household in the initial application was ‘strikingly comprehensive’ stating:

(ii) the court has never previously seen an application of the type now in issue in which such an abundance of evidence was provided as to a particular point.

The Judge went on to state that the Minister in his finding that the applicant had provided insufficient evidence regarding other tenants living at their UK address, the relationship between the applicant and other tenants and as to the length of time the brothers had been living at this address, seemed to go beyond the requirements of the applicable legislation.

Mr Justice Barrett ruled that in the Minister’s decision determining that insufficient documentary evidence had been provided establishing dependency and membership of the same household, the Minister had erred in law in his application of the subsections of section 5 above and had acted unreasonably and/or in breach of EU law and/or the Regulations.

The Judge also ruled that the Minister had acted unreasonably and/or in breach of fair procedures by refusing the application without having outlined the type of documents his office required in evidence of the applicant’s dependency and membership of the same household. The judge criticised the lack of transparency inherent in the ‘closeted’ way in which the Minister is operating the application and decision-making process, one which he found leaves applicants ‘in the blind’ when it comes to trying to satisfy the Minister’s standards of proof.

In this regard the judgment states:

  1. (3) Did the Respondent act unreasonably and/or in breach of fair procedures in concluding that the second applicant had failed to submit satisfactory evidence that he was a dependent of the first applicant and/or a member of his household, without adopting procedures which would have enabled the second applicant to know what evidence he was required to adduce in order to establish same?

  2. Yes. The court does not consider that a approach by a decision-maker which amounts, in effect, to ‘Put in an application, I will not tell you even at the most general level, not even by way of non-binding guidance, what type of material I am looking for, but I will let you know if I do not see it’ is reasonable or entails fairness of procedure. It is unreasonable and unfair that the Minister should know what, at a general level, he is looking for when it comes to assessing applications generally, but will give no sense to applicants as to what it is that he is looking for, i.e. the unreasonableness/unfairness flows not from the Directive or the Regulations per se but from the closeted manner in which the Minister has elected to discharge his obligations to the detriment of applicants who, as a consequence of his approach, are unfailingly operating to some extent ‘in the blind’ when making an application such as that at issue here.

On the issue of membership of the same household, the Judge highlighted that Ireland, as an EU member state, is obliged under Directive 2004/38/EC to facilitate the entry and lawful residence of members of the household of an EU Citizen exercising his or her right to free movement in the State.

Article 3 of Directive 2004/38/EC provides the following:

Beneficiaries

  1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.
  2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

The Judge on this point noted that the term ‘household’ is not defined in the 2004 Directive or the 2015 Regulations and that it is therefore required to be given its ordinary meaning in the English language and be applied uniformly by EU members states. The Judge however, in reference to an observation of the Court of Justice of the EU, goes on to state that within the context of Article 3.2 of the 2004 Directive it in fact seems that a wider meaning is attributed to the term ‘household’ than that of its ordinary English language meaning.

The Judge held that the Minister in his decision in this case seemed to interpret ‘household’ as referring to a single person/group regularly residing together in the same accommodation and sharing catering arrangements, and did not consider the term to apply to a single dwelling which may contain multiple households not sharing living spaces or catering arrangements.

The judgment states in this regard:

(vi) even if one has regard solely to the English language meaning of “household”, that term is typically understood to embrace [a] a single person or group of people who regularly reside together in the same accommodation and who share the same catering arrangements; However, [b] it is of course possible for a single dwelling to contain multiple households if meals or living spaces are not shared. It seems to the court, with respect, that the Minister in his reasoning has had regard solely to conception [a] of what comprises a household and no regard to conception [b].

The Judge cancelled the Minister’s refusal of the application as a result of the court’s findings and directed that the application be reconsidered by the Minister.

The full judgment can be read here.