Tag Archive for: high court

RECENT HIGH COURT JUDGEMENT- REFUSAL OF TRAVEL VISA FOR EMPLOYMENT PERMIT HOLDER

RECENT HIGH COURT JUDGEMENT – REFUSAL OF TRAVEL VISA FOR EMPLOYMENT PERMIT HOLDER

Ms Justice Bolger of the High Court has recently delivered a judgement in the case of S v Minister for Justice [2022] IEHC 578.

 

The case concerned an Indian citizen who was granted a work permit to take up a position as a tandoori chef. The Applicant then applied for a visa to enable him enter Ireland to take up this employment position, but his visa application was refused. The Applicant appealed against this refusal; his appeal was also unsuccessful.

 

The Applicant initiated Judicial Review proceedings in the High Court to challenge the Minister’s decision, seeking an order of certiorari to quash the decision. Ms Justice Bolger found for the applicant and granted the order quashing the decision.

 

The Minister refused the visa application on the basis that there was insufficient documentation submitted in support of the application. The Minister stated that there were inconsistencies and contradictions in the information supplied. Lastly, the Minister stated that the visa sought was for a specific purpose and duration, and the applicant had not satisfied the visa officer that such conditions would be observed. The Minister highlighted that the applicant had not provided sufficient evidence that they had the appropriate skills, knowledge, or experience for taking up the employment position in Ireland.

 

The appeal was also refused on the basis that the applicant had not addressed the refusal reasons listed in the refusal letter. The Minister relied on evidence from a telephone interview with the applicant in which he was asked what type of food he would be cooking, to which he replied, “Indian breads.” The applicant was then asked about cooking other dishes such as chicken tikka and he confirmed that this was not part of his job as a tandoori chef but that he had a basic knowledge of this type of cooking.

 

The Court found that the appeals decision did not state what documentation was missing from the applicant’s application, nor was missing documentation identified during the application or appeal process. The Minister’s deponent swore an affidavit in the proceedings which took issue with the applicant’s failure to submit a supplementary form that was required by the Minister. It was further highlighted that payslips, tax forms and evidence of experience or qualifications were missing, however this was raised for the first time after judicial review proceedings were initiated.

 

The Court found that it was unreasonable for the decision maker to dismiss the applicant’s two work references because of an absence of a website. The decision maker had claimed the lack of a website meant they were unable to check the references, when one written reference may have included a website and both references included mobile numbers which were not checked by the Minister.

 

Regarding the alleged inconsistencies in the application, the Court found that it was unclear from the appeal decision what these inconsistencies were. The decision maker had concluded based off the interview that the applicant could not provide detailed recipes for food which he would be required to cook in Ireland. The Court found that this was not a reasonable conclusion for the decision maker to reach, as the applicant’s work permit made it clear that his job was to make specialty tandoori bread, which the employer was satisfied the applicant had sufficient experience in. The applicant never claimed he would be required to cook chicken tikka or chicken dishes in Ireland and there was therefore no need to question him about his experience in this regard.

 

The Court found that a work permit does not constitute prima facie evidence that the applicant has the skills and experience required, to the point that the Minister for Justice cannot look behind the grant of the permit or require an applicant for a visa to show they are qualified to do the job for which they were granted the permit, in the assessment of the visa application to enter Ireland. However, the Court found that it also cannot simply be ignored.

 

The Court further found that there were no reasons or explanations given for the Minister’s decision that the applicant had not satisfied the visa officer that the conditions of the visa would be observed. The Court found that the reasons set out in the appeal decision were very brief. Ms Justice Bolger highlighted that the reasons set out in the decision fell well short of what is required.

 

This case raises the interesting conflict that can arise when a person has been granted an employment permit and requires an employment visa to enter the State.

 

The Department of Enterprise, Trade and Employment have responsibility for the issuance of employment permits. When a person has been granted an employment permit is a national of a country that requires an entry visa to enter Ireland, their application to enter Ireland for the purpose of employment is again subjected to a review by the Minister for Justice in their visa application.

 

It is the Minister for Justice who has responsibility for the issuance of visas and immigration permissions.  In our experience the Minister for Justice does not limit her assessment of the visa application to immigration matters only and will often undertake an examination of the applicant’s suitability for the employment position they have been issued an employment permit for.

 

It is a very unfortunate and regrettable position for a person who has been successful in obtaining an employment permit to come and work in Ireland to then be refused entry to the State to take up that employment due to concerns raised by visa officers as to the applicant’s suitability for an employment position.

 

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

Clients of Berkeley Solicitors win their judicial review case before the High Court in N.I. V MJE 2022 / 442 /JR

RECENT HIGH COURT JUDGEMENTS RELATING TO EU RESIDENCE CARDS

Ms Justice Bolger of the High Court has recently delivered a judgement in the case of K v Minister for Justice [2022] IEHC 582. The case concerned a review of the decision to revoke an EU Residence Card which had been previously granted to the spouse of a Latvian citizen. The submissions put forward by the applicant were rejected by the Minister, who found firstly that the applicant’s marriage to an EU citizen was one of convenience, and secondly that the applicant had submitted false and misleading documentation in support of his application for a residence card.

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Clients of Berkeley Solicitors win their judicial review case before the High Court in N.I. V MJE 2022 / 442 /JR

RECENT HIGH COURT JUDGEMENT RELATING TO VISA REFUSAL FOR HUSBAND OF IRISH CITIZEN

Justice Phelan of the High Court has recently delivered judgement in the case of S.M and T.A v Minister for Justice [2022] IEHC 611

 

This case involved a long stay visa application made by the husband of an Irish citizen to join his wife in Ireland. The visa application was refused by the Minister and was also refused on appeal.

 

The couple challenged this refusal in the High Court by way of Judicial Review.

 

The couple were unsuccessful in their case before the High Court.

 

The visa application was refused for multiple reasons. The Court found that the Minister had failed in a number of respects in the assessment of the visa application.

 

The Irish Immigration Service Delivery consider visa applications in line with a Policy Document on Non, EEA family reunification, December 2016 (https://www.irishimmigration.ie/wp-content/uploads/2021/04/Policy-document-on-Non-EEA-family-reunification.pdf)  . Under the terms of this policy, Irish citizens are asked to have earned a certain income within the three  years prior to the visa application for their family member. In this case, the Irish citizen sponsor did meet this financial  criteria.

 

Despite this, the Minister found that granting the visa application would likely cost the Irish State money. It was found that the bank balance of the sponsor was low, and this caused this risk. The Court found there had been a lack of fair procedures in respect of the handling of  this aspect of the case. The Irish citizen sponsor in fact had savings but had not provided evidence of same as it was not obvious that they would be required when the financial criteria had been met.

 

The Court also found that the Minister had been incorrect in finding that there had been no explanation with regards to discrepancies on official documents and dates of registration on such documents. The applicant and sponsor had provided explanations. The court found that the correct approach of the Minister  should have been to acknowledge that an explanation had been provided, but could then have assessed if this explanation was to her  satisfaction or not.

 

It was brought to the Court’s attention by the applicants that a previous visa refusal has to be declared going forward and can have a negative impact on a person’s immigration history. The Court considered quashing the decision with this in mind, but ultimately held that there was no unreasonable prejudice to the applicants, as they could re-apply providing the documents that were found to be lacking and with new financial documentation. The Court found that this application would be made on better facts and did not believe there was an unreasonable prejudice to the applicant in having to declare a previous visa refusal.

 

The applicants also brought it to the Court’s attention that the Irish citizen sponsor was pregnant and also the security and safety circumstances in the home country of the sponsor had deteriorated. The Court found that this was not put to the Minister during the application  prior to a decision being made and therefore could not be properly found as a reason to find fault with the decision at this stage.

 

The Court ultimately held that due to the myriad of reasons the application for the visa had been refused, the deficiencies in the decision-making process as specifically  identified by the Court did not amount to the decision being unlawful.

 

The Court held that even if these matters had been handled in the proper way the visa application would still have been refused for other reasons, including a failure to provide specifically requested documents and the quality of some official documentation.

 

The Court stated that a fresh visa application to address these issues was a suitable way forward for the applicants.

 

This judgement highlights the importance of providing all requested documents in a visa application, following all ISD published guidelines in respect of documents and attestation of certificates and providing all relevant information in the visa application.

 

The Judgment also appears to  indicate that were an applicant meets the financial  criteria of the policy document, it would only be fair that an applicant be put on notice that the Minister intends to  refuse the application on those grounds to allow them to address these  concerns prior to decision being made.

 

The full judgment can be found here:

 

https://www.courts.ie/viewer/pdf/fa5fae37-2d5d-4ba3-bd24-ef1099537524/2022_IEHC_611.pdf/pdf#view=fitH

 

Berkeley Solicitors is highly specialised in preparing and submitting join family visas. Please do contact us if you need advice or assistance with such an application.

 

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

 

CLIENTS OF BERKELEY SOLICITORS WIN THEIR CASE BEFORE THE HIGH COURT IN H AND ORS V MINISTER FOR JUSTICE 2022 No 553 JR

JUDGMENT ON FAMILY REUNIFICATION OF ADOPTED CHILDREN UNDER SECTION 56

On 22nd July 2022, Ms. Justice Donnelly of the Civil Court of Appeal delivered judgment in the case of H.A. v. The Minister for Justice. The Minister for Justice appealed to the Court of Appeal following the Judgment in favour of the applicant in the High Court.

H.A. is a national of Somalia who was granted refugee status in the State by the Minister on 9th July 2019. On 11th June 2020, H.A. submitted a request for her husband, niece and nephew to join her in the State on the ground of family reunification under section 56 of the International Protection Act. H.A.’s request was granted for her husband and rejected for her niece and nephew.

H.A.’s niece and nephew, ‘X’ and ‘Y’, are cousins. X and Y are orphans after both children’s parents died during fighting in Somalia. On 11th November 2019 a Somali court issued H.A. a “Declaration of Responsibility” in respect of X and Y, making H.A. the legal guardian of the children. When H.A. applied for family reunification, she classified X and Y as her ‘non-biological children’ and included the Declaration of Responsibility among the supplemental documents.

H.A.’s letter of request also referenced the then-recent judgment in X v. Minister for Justice and Equality (2019), in which Mr. Justice Barrett J. held that there is a “wide diversity of family structures” and that the definition of a “child” can extend beyond that of biological and adopted. In a judgment delivered on 7th June 2020, two days before H.A. submitted her application for family reunification, the Supreme Court overturned Mr. Justice Barrett’s judgment, holding that the definition of a child, for the purposes of section 56 of the International Protection Act 2015, is confined to a biological or adopted child only.

H.A. applied for judicial review on the decision, stating that she believed the Declaration of Responsibility was not adequately considered and for failure to provide reasons for the decision. H.A. argued that a “refugee-sensitive” approach to the concept of adoption should be taken in this case, considering the family’s situation and the differences in the interpretation of adoption across different cultures.

Mr. Justice Ferriter J. of the High Court agreed that the Declaration of Responsibility was a vital part of H.A.’s application for family reunification. He held that the decision-maker had erred by not referencing or engaging with the Declaration of Responsibility.” Mr. Justice Ferriter declined to rule on whether X and Y would fall under the restricted definition of “child” according to section 56 of the International Protection Act (2015) and conceded that H.A. may have difficulty proving that X and Y are her children according to this limited definition. Mr. Justice Ferriter further stated that H.A. should be given the opportunity to make that argument.

The Minister submitted that because Somalia is not a Hague Convention country, there is no bilateral agreement even if the Declaration of Responsibility translates to adoption in Somali culture. H.A. submitted that the key issue was rather the law of the country of origin, because “the Declaration of Responsibility is equivalent in large part to a foreign adoption although it could never be recognized as such under the Hague Convention.”

Ms. Justice Donnelly’s ultimate findings are that the High Court was correct in finding that the Declaration of Responsibility was not properly considered by the Minister and the Declaration was vital to determining whether X and Y are non-biological children of the respondent.

Ms. Justice Donnelly further found that the Minister’s assertion that the trial judge incorrectly granted certiorari on the grounds that H.A.’s case was “bound to fail” must be rejected.

Ms. Justice Donnelly states that “the respondent’s case has reached the level of arguability that is required before a court should decline the invitation to refuse to grant certiorari on the ground that the subsequent remittal would be a futile exercise.”

We submit that the Supreme Court decision in the X case has clarified that a “child” within the meaning of Section 56 is limited to biological and adopted children and this position was followed by the Court of Appeal in this case.

However, we submit that the precise meaning of an “adopted child” is a matter which is still to be tested before the Courts, the Court in this case noted:

.An important consideration is that while X v. Minister for Justice and Equality held that the child of a sponsor meant solely the biological or the adopted child of the sponsor, the Supreme Court was not asked to, and did not consider, the precise meaning of “[a]dopted child” as set out in s. 18(d) of the Interpretation Act. That point did not arise in X and, as is frequently said, a point not raised is a point not decided.

RECENT SUPREME COURT JUDGEMENT REGARDING THE BEST INTERESTS OF CHILDREN IN THE CONTEXT OF DEPORTATION DECISIONS

IMPORTANT HIGH COURT JUDGEMENT ON FAMILY REUNIFICATION RIGHTS OF REFUGEES

On 27th June 2022, Mr Justice Ferriter of the High Court gave judgment in the judicial review cases of SH and AJ. Both cases address the application of s.56 of the International Protection Act 2015.

S.56(a)(d) of the International Protection Act 2015 states that the child of an applicant for family reunification must be under 18 years of age and unmarried at the time of application for family reunification.

A basic understanding of the cases of SH and AJ is necessary to understand the High Court ruling.

SH is a national of Syria. His wife and their three children, NH (born 31st May 2009), AH (born 24th April 2003) and ZH (born 29th April 2000) remain in Syria.

SH experienced significant delays in the processing of his application for international protection as the Minister reported that the department was experiencing delays due to the onset of Covid-19. Because of these delays, SH did not receive an IPO interview until the 14th May 2021.

SH was informed by letter of a declaration of his refugee status on 1st June 2021. SH’s son, AH, turned 18 on 24th April 2021.

On 7th July 2021, SH made an application for family reunification based on s.56 for his wife and three children. On 9th July 2021, the Minister denied SH’s application for family reunification because AH and ZH were aged 18 years and 21 years, respectively, at the time of application.

On 14th October 2021, SH applied under the Minister’s administrative Join Family policy document for long stay visas for AH and ZH. The application has not yet been determined.
AJ is a national of Somalia who fled the country to avoid persecution by Al Shabab, a terrorist group. AJ arrived in the State on the 8th August 2019 and applied for international protection the same day. AJ’s wife and three children remain in Somalia. AJ’s oldest son, MJ, was born on the 2nd January 2003. AJ’s twins were born on the 8th October 2005.
AJ was formally granted refugee status on the 11th November 2020. AJ’s son, MJ, turned 18 on 2nd January 2021.

On 29th January 2021, AJ applied for family reunification under s.56 for his wife and three children. The application was denied the same day on that basis that MJ was over 18 years of age on the date of application.

AJ requested a review of this decision; the original decision was upheld.

AJ then made an application for MJ under the Minister’s administrative Join Family policy document for a long stay visa. This application was refused on the 6th May 2021. AJ sought review of this decision. The review is currently pending.

Both SH and AJ hold that the delay in processing their applications led to a situation where their children aged out of eligibility for family reunification pursuant to Section 56.
The applicants further argued that the relevant date for reviewing the entitlement to family reunification is the date that the applicant applied for international protection, holding that family reunification is a right guaranteed by EU law.

Justice Ferriter held in this regard that Section 56 is a matter of policy choice by the legislature- “it follows that Section 56(9)(d) is not in breach of EU law.”
Applicant AJ also argued his entitlement for Francovich damages. The Court held that there was a breach of Article 22 of the Qualification Directive in respect of AJ’s case.

Mr Justice Ferriter concedes that both applicants likely would have been granted family reunification for all family members if not for the delays in processing their international protection applications, though the department does not bare legal fault for the lengthy processing of the applications.

Mr Justice Ferriter states that, in his view, there is no EU law right to family reunification in Ireland from the date of a refugee’s application of international protection.

Judge Ferriter referred to and relied on the Supreme Judgment of ASSI in his judgment, in which the constitutionality of Section 56(8) and Section 56(9)(a) of the 2015 were upheld.

Ultimately, Mr Justice Ferriter refused SH’s application for relief and adjourned for further review AJ’s claim for Francovich damages, stating that ‘it is difficult to form any view on the damages said to arise in circumstance where a review decision is still pending in respect of AJ’s scheme application’.

The Court held that the Court, nor the Minister was entitled to disapply a statutory provision that the applicants did not meet. The Court found that it could not re write the contents of Section 56(9)(d) and that to do so would amount to an improper usurpation of the Courts constitutional role.

The Court found that in absence of a free standing right to family reunification, the Legislature is entitled to put parameters on the rights to family reunification for the beneficiaries of international protection.

In relation to the Minister’s Policy Document on Non-EEA Family reunification, the Court commented that it is preferrable that guidelines do exist in respect of the operation of the Minister’s discretion in this area. The Court also commented that in it’s view there may be occasions, of cases of such a humanitarian nature, that to expect an applicant to wait 12 months for a decision would not be proportionate.

We submit that the provisions of Section 56 are too restrictive in nature and are causing devastation for families of refuges. We submit that the parameters of those provisions is a matter that should be revisited by the Legislature.

Clients of Berkeley Solicitors win their judicial review case before the High Court in N.I. V MJE 2022 / 442 /JR

HIGH COURT JUDGEMENT OVERTURNING VISA REFUSAL TO HUSBAND AND FATHER OF IRISH CITIZENS

Berkeley Solicitors would like to congratulate our clients who were successful in their Judicial Review proceedings today.

The Applicant family have been successful in their challenge to the Minster for Justice’s refusal of a join family visa application for the father and spouse of Irish citizens.

The visa application was submitted on the basis of the family and private life rights arising from both his  marriage to an Irish citizen  and those arising from his  relationship  with his Irish citizen children.

The visa  application was initially submitted in 2017 and on appeal was refused by the Minister in 2019. The visa appeal was refused for a number of reasons with a focus on financial grounds.

The Minister concluded it was likely that the Applicant would become a burden on the Irish State if a visa was granted to him to join his family. This finding was made despite comprehensive evidence of the Applicant’s long career history and high level of qualifications, along a strong commitment from him of his desire to work in the State. Furthermore, financial support from his brother in law, a doctor in the State was also put forward. The Minister concluded that the family could maintain their family life via visits and Skype calls and that there was no disproportionate interference with the Constitutional rights of the Applicant family in the refusal of the join family visa to the Applicant.

On behalf of our clients’ Berkeley Solicitors challenged this decision by way of High Court Judicial Review proceedings.

The proceedings ultimately focused primarily on the rights arising from marriage, as the Applicant’s children had reached the age of 18 and over by the time these proceedings where heard.

In a Judgement delivered by Ms Justice Burns today, the Applicants were successful and the High Court ordered the cancellation of the visa appeal refusal.

We understand this  judgement to be the first judgement to comprehensively address the findings of the very important  Supreme Court  judgement in Gorry. Ms Justice Burns helpfully reviews the Applicants’ position as a married couple in line with the guidance provided by the Supreme Court in Gorry.

Ms Justice Burns found that the Minister had failed to give due respect to the institution of marriage in the refusal of the Applicant’s visa to join his wife and children.

Ms Jusice Burns held in her judgement:

 

The ultimate test for this Court is whether the Respondent failed to recognise the relationship between the Applicants, or to respect the institution of marriage because of its treatment of the couple concerned.  

 

In the course of her deliberations, the Respondent had regard to the fact that the Second Applicant was a citizen of Ireland; that she had a right to reside in Ireland; that she had a right to marry and develop a family life; and that cohabitation was a natural incident of marriage and the family.  However, the Respondent appears to have failed to have had regard to the fact that not permitting the First Applicant to enter this jurisdiction had a significance for the couple and the development of their family life. 

 

It is the case that the Respondent was considering an application which related to the Applicants’ children’s rights, which was interconnected with marital rights and perhaps for this reason focus was lost on the marital rights of the Second Applicant.  However, the Court is of the view that the Respondent failed to recognise the marital relationship between the Applicants and to pay due respect to the institution of marriage.

 

While important State interests were identified by the Respondent, an intensive consideration of the underlying facts and evidence was not conducted by the Respondent.    

 

In the particular circumstances of this case, the Respondent failed to identify a properly justified countervailing interest that outweighed the importance of the Applicants’ status as a married couple, one of whom is an Irish citizen, and ultimately failed to give due respect to the institution of marriage and the Applicants’ marital rights under the Constitution.

 

This is fantastic news for our clients who have waited such long time to have this matter resolved and we wish to congratulate them on this positive news today. Our office also wishes to thank and congratulate Applicant’s counsel for their  tireless work and commitment to the case.

CLIENTS OF BERKELEY SOLICITORS GRANTED LEAVE TO APPEAL TO THE SUPREME COURT

HIGH COURT CHALLENGES TO THE SUSPENSION ON PROCESSING VISA APPLICATIONS

In a notice published on the 5th May 2021, it was announced that the suspension of processing new visa and preclearance applications would continue until further notice.

Our blog post on this extension can be read here:

https://berkeleysolicitors.ie/suspension-of-visa-and-preclearance-applications-extended-until-further-notice/

Under these restrictions it is currently only priority or emergency applications which are being processed.

The restrictions do not appear to be in line with the European Commission guidance dated 3rd May 2021, which  states “the Commission is proposing that Member States ease the current restrictions on non-essential travel into the EU to take into account the progress of vaccination campaigns and developments in the epidemiological situation worldwide.”

Furthermore, Council Recommendation (EU) 2020/912 on the temporary restriction on non-essential travel into the EU and the possible lifting of such restriction, at Annex II, states the specific categories of travellers with an essential function as:

“Passengers travelling for imperative family reasons;

“Persons in need of international protection or for other humanitarian reasons;”

We note this Council recommendation does not apply to Ireland, but acts as a guide, in respect of determining essential travel within the EU during the current pandemic.

The Minister’s ongoing suspension on issuing visa applications has greatly affected individuals and families, with many being separated for long periods of time.

We have successful made representations to the Minister on behalf of one client to issue the visa for his dependent mother due to “imperative family reasons.” However, unfortunately we are aware of a substantial number of clients who cannot obtain visas for their family, even though the visas have been approved.

In light of the difficult situation faced by the affected families, recent challenges have been brought before the High Court regarding the failure to process visa applications for family members of EU citizens.

If you require advices regarding any matters raised in this article, please do not hesitate to contact Berkeley Solicitors.

 

RECENT SUPREME COURT JUDGEMENT REGARDING THE BEST INTERESTS OF CHILDREN IN THE CONTEXT OF DEPORTATION DECISIONS

BERKELEY SOLICITORS CONGRATULATES THE SUCCESSFUL APPLICANT AND LEGAL TEAM INVOLVED IN RECENT JUDICIAL REVIEW CASE

Berkeley Solicitors offers its congratulations to the successful applicant and legal team involved in the recent judgement MAH v The Minister for Justice , delivered on 30th April 2021.

The case involves a Somalian national who was granted refugee status in Hungary after fleeing from violent threats she had received from a fundamentalist group.

After facing further violence in Hungary, the applicant arrived in Ireland in 2016, where she applied for permission to reside.

The applicant is a qualified doctor and volunteers as a translator for members of the Somalian community and also with the Irish Cancer Society. Her lack of legal status in Ireland meant that she was unable to work in the State.

In February 2020, a deportation order was issued to the applicant, which was the subject of the Judicial Review proceedings before the High Court.

It was argued on behalf of the applicant that returning her to Hungary would amount to inhumane and degrading treatment, in breach of Article 3 of the Convention of European Human Rights.

In the judgment of Ms Justice Burns it is referenced that the applicant’s rights were not sufficiently protected in Hungary and that the Hungarian government were hostile towards migrants.

Ms Justice Burns assessed the Respondent’s consideration under Section 3 of the Immigration Act 1999 as amended, and stated her findings as follows:

I am of the view that the Respondent incorrectly assessed the COI; failed to consider whether the presumption that her fundamental rights would be upheld in Hungary had been rebutted; and failed to properly consider the Applicant’s employment prospects pursuant to s. 3(6)(f) of the 1999 Act, the Respondent’s determination in respect of the Deportation Order is vitiated by these errors.

In granting the applicant the reliefs sought, Ms Justice Burns summarised that:

‘the founding architects of the system of international protection which is in place in Europe today, would be of the view that we, as a people, have badly failed the Applicant in this case.’

Berkeley solicitors welcomes this very fair and just decision and hopes that it will benefit both the applicant and other non-nationals within similar circumstances.

If you require advices regarding any matters raised in this article, please do not hesitate to contact Berkeley Solicitors.

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.

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.