Judgment Title: Kuhn & ors -v- Minister for Justice and Equality & anor
Neutral Citation:  IEHC 424
High Court Record Number: 2012 674 JR
Date of Delivery: 22/08/2013
Court: High Court
Composition of Court:
Judgment by: Mac Eochaidh J.
Status of Judgment: Approved
Neutral Citation:  IEHC 424
THE HIGH COURT
VEIT KUHN, RANIA KUHN, IBRAHIM KHALIL ZAKRI, NAVAL BAHIG MARKUS MEKHAEL, AND MARGARET IBRAHIM ATA KHALIL AND MARY IBRAHIM ATA KHALIL
THE MINISTER FOR JUSTICE AND EQUALITY AND THE MINISTER FOR FOREIGN AFFAIRS
JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 22nd day of August 2013
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 (14th 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'.)
2. On 11th May 2010, the Egyptian based family applied to the Embassy of Ireland in Cairo for a short stay visa (C-class). On 12th and 13th May 2010, these visas were refused. The decision was appealed and on 25th 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 26th May 2010 to 25th August 2010.
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 22nd 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.
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 6th February 2012, culminating in unsuccessful appeals dated 8th and 9th 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.
5. The second named applicant's sisters also made new applications for short stay and long stay visas on 6th February 2012, and refusals were ultimately communicated to the unsuccessful applicants on 9th 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.
6. Leave to seek judicial review was granted on 30th 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.
7. When the matter came on for hearing on 24th 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 1st 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 10th April 2013, the Egyptian based family was advised by letters that their appeals against refusal were unsuccessful.
8. On 16th 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
(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;
(b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;
c) the limits placed on the rights set out in (a) and (b) and grounds of public policy, public security or public health."
13. Advocate General Geelhoed noted that in Case-316/85  ECR 2811, para. 22 (known as Lebon), the ECJ ruled that the status of the dependant member of a worker's family:
 As such, whether or not the condition of dependency is fulfilled should be determined objectively, taking account of the individual circumstances and personal needs of the person requiring support. It would seem to me that the appropriate test in this regard is primarily whether, in the light of those personal circumstances, the dependant's financial means permit him to live at the minimum level of subsistence in the country of his normal residence, assuming that is not the Member State in which he is seeking to reside. In addition, it should be established that that is not a temporary situation, but that it is structural in character."
18. In the German language version of Jia, the verb deployed for "to meet their essential needs" is "urn seine Grundbedürfnisse ... zu decken". The verb "zu decken" translates as "to cover". Thus, the German language version of the test suggests that the financial assistance is needed to cover or to meet all of the costs of essential needs. The French language version of Jia suggests a slightly different meaning and its text is "de necessiter le soutien materiel. ..afin de subvenir a ses besoins essentiels ..." The sense of the words "de subvenir a" is more suggestive of supporting or making a subvention or a contribution to the essential needs. If I interpreted the test as meaning that dependence requires that assistance be given for all of a person's essential needs, this would greatly restrict the category of persons entitled to claim to be dependants. Only persons who could prove that they were reliant for all of their food and shelter and any other essentials would ever qualify and this, in my view, could not have been the intended effect of the test announced in Jia. Such a restrictive test could only be designed by the European legislator and it has not given any indication of such an extreme restriction on the concept of dependence.
19. In my view, the Jia decision marks a shift from dependence which was found to exist merely where support is given, to dependence being based upon the need for assistance with the provision of the essentials of life. Neither the European Court of Justice nor the European legislator nor the Irish legislator has ever identified exactly how much support is required to be given to the recipient in order for that person to be said to be dependant on the European based donor. My view is that where outside help is needed for the essentials of life (for example, enough food and shelter to sustain life) then regardless of how small that assistance is, if it is needed to attain the minimum level to obtain the essentials, then that is enough to establish that the recipient is dependent. (The essentials of life will vary from case to case: expensive drugs maybe an essential for someone who is ill, for example.)
20. In these proceedings, the parties agree that the correct test for dependence is to be found in Jia. Thus, in accordance with paras. 37 and 43 of Jia, my task is to see if the various officials processing the many applications and appeals assessed whether the Egyptian based family require the material support of the Irish based family "in order to meet their essential needs" in Egypt. At the heart of these proceedings is the allegation that the test in Jia was misapplied by the respondents.
21. Starting with the applications for visas made on 6th February 2012, a 22-page submission was made by the applicants' solicitor on 29th February 2012. The submission says that:
The [Egyptian family's] living expenses for the entire family total 3320 EGP. These are set out in the attached Schedule. We are also enclosing vouching documentation.
[Ibrahim] the Egyptian based father is dependent on the money transfers from [the Irish based family]. Without them, he would not be able to maintain his basic living conditions for himself and the rest of the family in Egypt.
We draw your attention, in particular, to the fact that [the Irish based family] had been supporting [the Egyptian parents] regularly since 2005. It will be further be evidence [sic] from a comparison of our client's bank accounts that [the Irish family] have adequate finances to support [the Egyptian parents] while the Egyptian parents, without their own finances, need financial support, which is provided by [the Irish family]."
25. As we have seen from the decision of the ECJ, the mere fact that support is given does not establish dependence. However, is it important to note that the submission clearly asserts that without the support from the Irish family, basic living conditions could not be maintained for the Egyptian family. Although the submission made does not refer to the definition of dependence in the Jia case, that assertion, whether by accident or design, is very close, if not indistinguishable from the language at para. 43 of the Jia judgment.
26. The second half of the submission made by the second named applicant's solicitors related to her sisters. It is asserted that the sisters are permitted family members within the meaning of Regulation 2 of the EC (Free Movement of Persons) (No. 2) Regulations 2006. Their dependence is asserted as deriving from the dependence of their parents as they in turn, it is said, are dependant on the parents. The sisters, it is noted, are, for various reasons which have been explained, no longer working. In addition to explaining why the sisters are financially dependant via their parents on the Irish based family, an argument is also made regarding the security situation in Egypt and the dangers facing Coptic Christian women on the streets of Cairo. This submission notes:
30. At hearing, it was argued by the respondent that the sisters in Cairo are not the sisters of a Union citizen and therefore not members of the family of a Union citizen. The sisters are sisters of a Union citizen's spouse. This was not the basis upon which the sisters' applications for visas was rejected and therefore I am not required to decide whether a Union citizen's sisters-in-law could be deemed to be "any other family member". That is a matter for another day.
31. The appeals lodged against the refusal of the visa applications were unsuccessful and the reasons for the refusal are set out in the following passage:
33. The case made by the applicant is that the test in Jia was misapplied. My view is that there is no evidence that the test was applied in this decision just quoted. The analysis of the concept of dependence made at first instance by Mr. Hargadon is expressly adopted by the decision maker on appeal such that any error which was contained in Mr. Hargadon's analysis infected the appeal.
34. During the course of these proceedings, the second named applicant became an Irish citizen and the case was adjourned to permit a fresh application for family reunification/long-term visa applications to be made at the Irish Embassy in Cairo. The essence of the case advanced arising on citizenship was expressed as follows by the applicants' solicitors:
36. By email and attachment of 7th March 2013, the first instance refusal decisions were communicated by the Visa section of the Embassy of Ireland in Cairo. The reasons given in the refusal are as follows:
38. Bold text at the beginning of the consideration by Mr. Hargadon summarises the case made on behalf of the Egyptian family as follows:
The applicants' legal representatives have also requested that their submissions contained with their correspondence dated 25/05 in relation to Mrs. Kuhn's Irish citizenship be addressed by the Minister. Mrs. Kuhn became a naturalised citizen on 14/06/2012."
40. Mr. Hargadon evaluates the claim for financial dependence based on the figures provided of monthly income of approximately EGP 2,200 as against monthly expenses of EGP 3,420 and the submission that the Irish family's contributions make up the difference. A striking feature of Mr. Hargadon's decision on this occasion is the detailed criticisms or negative comment he makes about the state of the documentary information. The first of these is as follows:
45. In the next paragraph, Mr. Hargadon says that the Egyptian family:
46. Dealing, apparently, with the claim made by Mrs. Kuhn's alleged constitutional right to reunify with her family, Mr. Hargadon states:
48. Mr. Hargadon does not decide that dependence does not exist where it is established that there are savings available to meet a monthly shortfall. The sisters have savings which would permit the family to meet this monthly shortfall for a number of years. However, this was not stated to be the reason why Mr. Hargadon came to the view that financial dependence had not been established. By letter of 14th March 2013, in what appears to be an unending series of applications and appeals, a further appeal was made against the recommendation of Mr. Hargadon.
49. The decisions on appeal from the March 2013 decisions offer nothing new and to my mind create no new illegality. They are endorsements of the first instance decision in March 2013 and therefore the legality of the appeal decisions fall to be determined by reference to the first instance decision.
51. Multiple reasons were expressed as to why there were shortcomings in documentation but these were never stated to be the reasons why the application was flawed or had to be refused. The Hargadon decisions of March 2013 are the height of the decision making process (endorsed on appeal) and these simply state that the Egyptian family failed to show that they require financial assistance from Ireland for the essentials of life. The decision maker does not say that this failure lies in bad documentation - though that criticism is clearly made.
52. The Egyptian family are left in the dark as to why the assistance they receive to meet the monthly difference between income and expenditure is not evidence of dependence. One would have thought that if the decision makers believed that the shortfall nonetheless left the Egyptian family with enough to survive every month and that EGP 2,000 was enough for this family of four, then this should have been stated with reasons attached. If the decision maker believed that the savings of the sisters' made up the monthly shortfall in income, then this too should have been stated.
53. If asserted facts are not established because documentation is inadequate then this should be stated in the clearest terms. Proceeding to determine the existence or non-existence of dependence in circumstance where one has a view that the documentation is inadequate is likely to lead to a very confusing decision. It is to be recalled that the standard required of decision makers has been set out by Murray C.J. in Meadows v. Minister for Justice, Equality and Law Reform  IESC 3, who stated:
Unless that is so then the constitutional right to access to the Courts to have the legality of an administrative decision judicially reviewed could be rendered either pointless or so circumscribed as to be unacceptably ineffective
In my view the decision of the Minister in the terms couched is so vague and indeed opaque that its underlying rationale cannot be properly or reasonably deduced."