British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Irish Court of Appeal
You are here: BAILII >> Databases >> Irish Court of Appeal >> V.K. & Ors v The Minister for Justice and Law Reform & Anor: Khan & Ors v Minister for Justice and Equality [2019] IECA 232 (30 July 2019)
URL: http://www.bailii.org/ie/cases/IECA/2019/2019_IECA_232.html
Cite as: [2019] IECA 232
[New search] [Printable PDF version] [Help]
Page 1 ⇓
Irvine J.
Baker J.
Costello J.
BETWEEN/
THE COURT OF APPEAL
Appeal No. 2014/990
V. K., R. K., I. A. K. Z., N. B. M. M., M. I. A. K. AND M. I. A. K.
APPLICANTS/
RESPONDENTS
- AND -
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT/
APPELLANT
-AND-
THE MINISTER FOR FOREIGN AFFAIRS
NOTICE PARTY
Appeal No. 2018/43
BETWEEN/
MUHAMMAD KHAN, MAHNAZ KHAN,
MUHAMMAD SHUMAR KHAN, AND MALKA KHATOON
- AND -
THE MINISTER FOR JUSTICE AND EQUALITY
APPLICANTS/
RESPONDENTS
RESPONDENT/
APPELLANT
JUDGMENT delivered on the 30th day of July, 2019 by Ms Justice Baker
1. These appeals by the Minister for Justice (“the Minister”) in judicial review proceedings
raise a broadly similar question concerning the interpretation and operation of the
European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (S.I. No.
656/2006) as amended (“the 2006 Regulations”), transposing 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, O.J. L/158, 30.4.2004 (“the Citizens
Directive”).
2. The first appeal is against the judgment K. v. Minister for Justice and Equality
[2013] IEHC 424 (now anonymised as the parties have been granted asylum status), of 22
August 2013 and order of 17 September 2013 of Mac Eochaidh J., by which he granted
the order of certiorari by way of judicial review of the decision of the Minister refusing
permission to enter and remain in the State pursuant to the 2006 Regulations.
3. The second appeal is against the judgment of Faherty J., Khan v. Minister for Justice,
Equality and Law Reform [2017] IEHC 800, of 27 October 2017 and order of 10 November
Page 2 ⇓
2017 by which she granted an order of certiorari by way of judicial review of the decision
of the Minister to refuse the third and fourth applicants, the respondents in the appeal,
permission to enter and remain in the State pursuant to the 2006 Regulations.
4. The net question of law for determination in the appeals concerns the test to be applied in
assessing the meaning of “qualifying family member” with the meaning of the Citizens
Directive, and the standard to be applied in assessing dependency and the degree of
scrutiny to be engaged by the decision maker.
5. The judgment of Faherty J. was given more than four years after the judgment of Mac
Eochaidh J., and after there had been further clarification by the Court of Justice of the
European Union (“CJEU”) of the relevant tests in Reyes v. Migrationsverket (Case C-
Migrationsverket, but he anticipated much of its reasoning.
6. The 2006 Regulations have now been replaced by the European Communities (Free
Movement of Persons) Regulations 2015 (S.I. No. 548/2015) (“the 2015 Regulations”),
which entered into force in February 2016.
7. As the same legal questions arise for consideration in both cases, it is convenient to deal
with them in sequence after having first considered the respective background facts and
the present state of the law.
The first appeal: Background facts
8. The first respondent, Mr K, is a German citizen who is married to the second respondent,
Mrs K, an Egyptian citizen who became a naturalised Irish citizen during the course of the
proceedings, in June 2012. Mr and Mrs K reside in the State and together operate a piano
tuning and repair business. The third and fourth respondents are Egyptian citizens and
the parents of the second respondent (“the parents”). The fifth and sixth respondents are
also Egyptian nationals and are the adult sisters of the second respondent (“the sisters”).
9. The parents and sisters live in Egypt and the proceedings relate to applications made by
them for visas to enter and remain in the State as will appear more fully below.
10. The parents had been granted short stay (C-class) visas in 2010, following a successful
appeal against the Minister’s refusal decision, whereas the sisters who had applied for
visas at the same time which were also refused, were not. The parents and sisters made
further applications in August 2011 and February 2012 for long stay (D-class) visas under
the Citizen Directive, which were in turn refused by the Minister on the grounds that inter
alia, they had failed to show dependence on a Union citizen. It is these refusals that were
challenged in the judicial review.
11. On 30 July 2012, Cooke J. granted leave to seek judicial review of the decisions of the
Minister of 8 and 9 July 2012 refusing the February 2012 applications and for a
declaration that the Minister had wrongly applied the test of dependence and that the
applicants had rights deriving from the status of the second applicant who was by then a
naturalised Irish citizen.
Page 3 ⇓
12. Following an order of 16 April 2013 the statement of grounds was amended to incorporate
a challenge to the decision of 10 April 2013 of the Visa Appeals Officer upholding the
refusal decision of the Visa Officer, and to take into account the constitutional plea of the
second respondent who had, by that time, become a naturalised Irish citizen.
13. The parents and sisters have been granted refugee status and the appeal of the Minister
while moot to that extent, is brought in the light of the importance of the analysis of Mac
Eochaidh J. of the correct test of dependence for the purpose of the Citizens Directive.
The second appeal: Background facts
14. The first and second respondents, Mr and Mrs Khan, are a married couple and UK citizens.
They reside in Ireland and are registered owners of the property in which they live with
their four children who are all UK citizens. Both the respondents work in the State. The
first respondent works as a taxi driver and is a part time student. The second respondent
is a senior accountant working in a permanent position in a private accountancy firm. The
third and fourth respondents are Pakistani citizens and the parents of the first
respondent. They were born in 1945 and 1956 respectively and applied for visas to enter
the State in early 2013. I will refer to them where appropriate collectively as “the
parents”.
15. This judicial review concerns the refusal of an application for visas, the third such refusal
since 2013.
16. The relevant applications were made in 2015 for visas, vouched by evidence of financial
support from the first and second respondents, information in respect of the rental
agreement of the home of the parents in Pakistan, and of their financial position. A bank
account statement of the fourth applicant was also furnished and a medical report
showing that the third applicant, the first respondent’s father, had a history of heart
disease. Those visa applications were refused by letters of 2 July 2015.
17. The refusal of the visas was appealed through IK Immigration Consultants by letter of 27
August 2015. The appeal was rejected, and the reasons therefore set out in a letter of 6
October 2015. It is with regard to the reasons given in those letters that this application
for judicial review was commenced.
18. As the two appeals concern the correct interpretation and application of the 2006
Regulations which transposed the Citizens Directive, it is helpful to now set out the
relevant provisions and the analysis of the CJEU concerning the meaning of dependence
and the tests to be applied by a national authority for the purpose of the operation of the
Citizens Directive.
The Citizens Directive
19. The Citizens Directive recited as a core purpose the desire that rights of Union citizens to
move and reside freely within the territory of the Member States should also be granted
to their family members irrespective of nationality. Recital 5 of the Citizens Directive
reads as follows:
Page 4 ⇓
“The right of all Union citizens to move and reside freely within the territory of the
Member States should, if it is to be exercised under objective conditions of freedom
and dignity, be also granted to their family members, irrespective of nationality
[…].”
20. Recital 6 of the Citizens Directive explains that in order to maintain the unity of the family
“in a broader sense”, applications for entry and residence permission by those persons
who did not enjoy an automatic right of entry and residence in the host Member State
should be examined, inter alia, on the grounds of financial or physical dependence on the
Union citizen:
“In order to maintain the unity of the family in a broader sense and without
prejudice to the prohibition of discrimination on grounds of nationality, the situation
of those persons who are not included in the definition of family members under
this Directive, and who therefore do not enjoy an automatic right of entry and
residence in the host Member State, should be examined by the host Member State
on the basis of its own national legislation, in order to decide whether entry and
residence could be granted to such persons, taking into consideration their
relationship with the Union citizen or any other circumstances, such as their
financial or physical dependence on the Union citizen.”
21. “Family members” under article 2 of the Citizens Directive are spouse, partner, direct
descendants under the age of twenty-one, or direct descendants who are dependent and
those of the spouse or partner, as the case may be.
22. Dependant direct relatives in the ascending line are also included within the definition of
“family member”, but only if they are dependent within the meaning of the Directive. In
addition, for the purposes of the Citizens Directive, a Member State is required to
facilitate the entry into and residence in that State of family members not falling under
the definition of article 2 of the Citizens Directive who, in the country from which they
have come, are dependent upon, or who on serious health grounds require the personal
care of family members, who are Union citizens. Article 3(2) of the Citizens Directive
provides for the facilitation of 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) […].”
23. The host Member State is obliged to “undertake an extensive examination of the personal
circumstances” of any applicant within the extended category described in article 3(2)(a)
of the Citizens Directive and to “justify any denial of entry or residence” to those persons.
Page 5 ⇓
24. The Citizens Directive was implemented into Irish law by the 2006 Regulations.
Regulation 2(1) of the 2006 Regulations provides two categories of family member as a
“qualifying family member” and a “permitted family member”.
25. A “qualifying family member”, in relation to a Union citizen, means:
“(a) the Union citizen's spouse,
(b) a direct descendant of the Union citizen who is -
(i) under the age of 21, or
(ii) a dependant of the Union citizen,
(c) a direct descendant of the spouse of the Union citizen who is -
(i) under the age of 21, or
(ii) a dependant of the spouse of the Union citizen,
(d) a dependent direct relative of the Union citizen in the ascending line, or
(e) a dependent direct relative of the spouse of the Union citizen in the ascending line”.
26. A “permitted family member’” is a person who is not is not a qualifying family member of
the Union citizen, and who, in his or her country of origin, habitual residence or previous
residence is “a dependant of the Union citizen”.
27. It might be noted that the 2015 Regulations do not contain any definition of the meaning
of “dependent”, but do identify certain indices of the matters to which regard is to be had
in making an assessment of dependency in regard to a “permitted family member” in r.
5(5)(a) of the 2015 Regulations, which reads as follows:
“(5) The Minister, in deciding under paragraph (3) whether an applicant should be
treated as a permitted family member for the purposes of these Regulations, shall
have regard to the following:
(a) where the applicant is a dependant of the Union citizen concerned, the extent
and nature of the dependency and, in the case of financial dependency, the
extent and duration of the financial support provided by the Union citizen to
the applicant prior to the applicant’s coming to the State, having regard,
amongst other relevant matters, to living costs in the country from which the
applicant has come, whether the financial dependency can be satisfied by
remittances to the applicant in the country from which the applicant has
come and other financial resources available to him or her”.
The scope of the appeals
28. What amounts to dependence is therefore not defined and these appeals concern the test
applied by the Irish authorities in respect of:
Page 6 ⇓
a) the parents in the first and second appeal, who are members in the ascending line
of the family of a Union citizen within the meaning of article 2 of the Citizens
Directive, who claim to be dependent on that Union citizen or their spouse, and to
therefore be “qualifying family members” under Irish legislation for the purposes of
obtaining long term residency permits, and
b) the sisters in the first appeal who claim to be dependent on a Union citizen and/or
his spouse in order to qualify as “other family members” within the meaning of
article 3(2)(a) of the Citizens Directive and as “permitted family members” under
Irish legislation, for the purposes of obtaining long term residency permits.
29. For the purposes of the examination of the applicable legal principles, the test of
dependency is to be regarded as the same whether an applicant is a family member
under article 2(2) of the Citizens Directive or “other family member” dependent on a
Union citizen within the meaning of article 3(2)(a), as suggested by Advocate General Bot
in his Opinion in Secretary of State for the Home Department v. Rahman (Case C‑83/11),
ECLI:EU:C:2012:519. I see no reason not to adopt for the purpose of the present
appeals the interpretation of Advocate General Bot in relation to the implementation of
the Citizens Directive into Irish law, and I therefore see no difference between the test for
dependency to be adopted for qualifying an applicant as “qualified family member” or as
“permitted family member” under the provisions of the 2006 Regulations.
30. The basis on which the visa applications of the sisters in the first appeal were refused was
confined to their failure to demonstrate their being dependent on the Union citizen or
spouse, and did not concern their status as “family member” of the Union citizen, as they
were not the sisters of the Union citizen but of the Union citizen’s spouse. Mac Eochaidh
J. said, and this seems not to be a matter of contention between the parties, that that
was a “matter for another day”, at para. 30.
31. The appeals do not require the court to decide whether the concept of dependence is the
same whether family rights are asserted by a dependent family member of an Irish or of
a Union citizen wishing to reside in the State. I do not therefore propose to consider the
implications of article 8 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“ECHR”) or Article 41 of the Constitution. As will appear below,
Mac Eochaidh J. had regard to the fact that the decision maker had or appeared to have
wrongly applied the test relevant to an assessment of dependence for the purpose of
article 8 of the ECHR and of Article 41 of the Constitution.
32. These appeals therefore solely concern the test identified by the trial judges as to
whether a family member of a Union citizen who exercised his right of free movement and
now resides in the State is “dependent” upon that Union citizen and/or his or her spouse
so as to obtain permission to reside in the State under the Citizens Directive.
33. The Minister has accepted that the first appeal is moot, but has sought to argue the legal
issue on account of the systemic importance of the meaning and proper application of the
test of dependence. As I now turn to examine, both trial judges determined the
Page 7 ⇓
applications without making definitive determination regarding the proper meaning of the
test.
The decision of Mac Eochaidh J. in K. v. Minister for Justice
34. Mac Eochaidh J. delivered his considered judgment before the test for dependency was
further developed in Reyes v. Migrationsverket. He made a number of observations
regarding the test, but these were obiter, as the relieves were grated on the grounds that
the decision maker had failed to give sufficiently clear reasons.
35. Mac Eochaidh J. granted leave to seek judicial review (the application being telescoped)
and orders of certiorari because the decision maker had not identified the test applied:
“The decision makers repeatedly failed to refer to the proper test by which
dependence should be evaluated under EU law. The applicant made the case that
the Cairo based family was dependent upon the Irish family for the essentials of
life. Though the officials engaged with this concept, they never set out the Jia test,
even in the decisions taken in 2013”, at para. 50.
36. The reasons for the refusal of the appeals against the decisions of the Minister on the
February 2012 applications are set out in the letters to the parents dated 8 July 2012
under the heading “Insufficient documentation submitted in support of the application”,
followed by a link to “Documents Required” as displayed on the website www.inis.gov.ie.
The letter said that the decision maker had found that the applicants had “not shown
sufficient evidence that you are a permitted family member of the Union citizen and a
dependant” (emphasis added) and that “[t]he additional documentation does not provide
sufficient evidence that you are a member of the EU citizen’s household”. The reasons
were generic and not linked to any findings. Mac Eochaidh J. found that the applicants
were left “in the dark” as they could not be aware of the reasons for the refusals from the
correspondence, although the decision maker had set out a list of inconsistencies and
incomplete documentation: Mac Eochaidh J. held as follows in this regard:
“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 [Visa Officer’s] 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”, at para.
51.
37. He then concluded:
“My conclusion in this case is that it is not possible to understand why the case
made by the Egyptian family that the assistance they regularly received from the
Irish family does not meet the Jia test”, at para. 54.
The grounds of appeal
Page 8 ⇓
38. The grounds of appeal can be summarised as follows:
(a) The trial judge erred in law in his interpretation of the concept of dependency in the
Directive that any assistance whatsoever if needed to attain the minimum level for
the essentials of life was sufficient to establish that the recipient was dependent
(Grounds of Appeal No. 1, 2, 3);
(b) The trial judge erred in law and in fact in finding that the Minister did not analyse
the respondents’ application, that the definition of dependence as set out in Jia v.
Migrationsverket was not identified in the decision making process and that there
was no evidence that such test was not applied to the assertions made by the
respondents (Grounds of Appeal No. 4, 5, 6, 7, 8, 9, 10);
(c) The trial judge erred in fact and in law in finding that the Minister provided
insufficient or inadequate reasoning to the respondents (Grounds of Appeal No. 11,
12, 13, 14);
(d) That the trial judge erred in law in finding that the Minister had to impose a
different test for dependence under EU law and another “for Irish law” (Ground of
appeal No 15).
39. The respondents oppose the appeal and argue that the test requires a consideration of
whether the person can support himself or herself without support from family. Reliance
is placed on the articulation in Centre public d'aide sociale de Courcelles v. Lebon that
there is not to be an interrogation of the reasons for the recourse to that support.
40. The main focus of the appeal of the Minister is the formation of Mac Eochaidh J. of the
test for dependence, at para. 19:
“[W]here 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.)”
41. With regard to the means by which a decision maker is to test dependence, Mac Eochaidh
J. stated, at para. 32 of his judgment, that:
“Any lawful analysis of a claim of dependence arising under the Citizens Directive
must ask a fundamental question: is financial assistance given by a Union citizen
and/or his spouse to a qualifying person to meet their essential needs? Nothing
short of that analysis will suffice.”
42. As he said, there may be circumstances where what is provided by the Union citizen is
assistance, e.g., in the purchase of expensive medication. The person who receives that
assistance will show reliance or dependency if that support is offered, even if he or she
Page 9 ⇓
could have lived comfortably before that medication was called for or before the state of
health of the applicant had deteriorated. He went on to say that:
“provided an applicant can show a real and meaningful contribution which is not
negligible that contribution is sufficient to render a person dependant.”
43. The Minister’s appeal is grounded on the submission that Mac Eochaidh J. was wrong in
interpreting the test in Jia v. Migrationsverket as requiring the provision of no more than
a minimal level of support to a family member in order to establish dependency, and that
he did not construe it as necessarily implying substantial reliance in the ordinary and
natural meaning of “dependency”: In other words, Mac Eochaidh J. was wrong to construe
the test as a de minimis one.
44. The other main ground of appeal concerns whether the Minister was entitled to reject the
applications because of insufficiencies of proofs of dependency.
45. Both issues also arose in the later judgement of Faherty J which I now outline.
The judgment of Faherty J. in Khan v. Minister for Justice
46. Faherty J. was considering the Minister’s decision to refuse entry on the basis stated in a
letter of 6 October 2015 that:
“The degree of dependency must be such as to render independent living, at a
subsistence level by the family member in his/her home country impossible if [the
financial and social support from the first and second respondents] were not
maintained.”
47. Faherty J. considered, at para.73, that the test in Jia v. Migrationsverket did not require
“that the family members have to be totally dependent on the EU citizen” or that a person
did not have to show that it was impossible to live at subsistence level if that financial
need was not met. In the following paragraph she stated the test:
“[I]t is not the law that a family member cannot qualify as a dependent simply
because he or she is in receipt of a pension.”
48. She came to the conclusion on the facts that the Minister in effect applied not the test
from EU law but the test outlined in the Policy Document on Non-EEA Family
Reunification, published by the Department of Justice in December 2013 (“the Policy
Document”), at p. 39:
“[…], “Dependency” means that the family member is (i) supported financially by
the sponsor on a continuous basis and (ii) that there is evidence of social
dependency between the two parties. The degree of dependency must be such as
to render independent living at a subsistence level by the family member in his/her
home country impossible if that financial and social support were not maintained.
[…].”
49. She held that the Minister had applied the wrong test and quashed the decisions.
Page 10 ⇓
The findings of fact made by the trial judge
50. The Minister had argued in the High Court that there were deficiencies in the information
provided by the applicants sufficient to justify the refusals of the visas. Faherty J.
rejected the submission on three grounds, the material one for present purposes being
the fact that the Minister identified as a reason for the refusal that the third respondent
was in receipt of a monthly pension and was therefore not considered to be dependant.
The Minister found that, as her husband was in receipt of a pension, the fourth
respondent was not to be considered to be dependent on the first and second
respondents.
51. Faherty J. held that the Minister thereby closed the door to the applicants on the wrong
factual basis, and, at para. 58, she quoted from the Opinion of Advocate General
Mengozzi in Reyes v. Migrationsverket, at para. 55:
“Although, as such, the concept of dependent member of the family of a Union
citizen is an independent concept of Union law which must, on that basis, be given
a uniform interpretation, it is in terms of the proof required of applicants that the
distinction intended by the Union legislature between dependent members of the
nuclear family and other dependent family members will be able to take on its full
meaning.”
52. She thereafter went on:
“The applicant may thus provide the authorities of the host Member State with both
subjective evidence connected with his own economic and social situation and any
other relevant evidence that may illustrate, in a manner helpful to those
authorities, the objective background to the application. At all events, the
authorities of the host Member State have a duty to ensure that the effectiveness
of the rights indirectly conferred on the members of the nuclear family by Directive
2004/38 is maintained and that access to the territory of the Union is not made
excessively difficult by, in particular, placing too heavy a burden of proof on
applicants.”
53. Faherty J. held accordingly that, on account of the language used in the decision, the
applicants had an apprehension that they would be subjected to “myriad small queries”
and that their apprehension was not unreasonable. She was satisfied that the wording
used was not a “mere infelicity in language”, para. 87, and that, on the facts, the Minister
applied the wrong test.
The grounds of appeal
54. The grounds of appeal can be summarised as follows:
(a) The trial judge erred in law that the Minister applied the wrong test for dependency
in reaching and making the decision on the application of the respondents (grounds
No. 1, 2, 3, 4, 7, 9 and 11);
Page 11 ⇓
(b) The trial judge erred in law and in fact in failing to adequately consider the fact that
the decision of the Minister had expressly referred to the alleged proofs of
dependency of the third and fourth defendants (grounds 8 and 10);
(c) The trial judge erred in not acceding to the Minister’s submission that having regard
to the alleged deficiencies in the third and fourth respondents’ proofs, the
lawfulness of the decision should be upheld irrespective of any issue over the
correctness of the test for dependency (ground 9, 10, 11, 12);
(d) In the alternative, the trial judge ought to have exercised her discretion to refuse
the relief (ground 13).
55. The respondents deny the High Court erred in finding that the Minister applied the wrong
test. They say the last ground of appeal is unsubstantiated.
The arguments of the parties
56. The Minister appeals, in essence, on the grounds that the trial judge erred in her finding
that, on the facts, the Minister had applied the wrong test, and pleads positively that the
test applied by the Minister is, in substance, that outlined in Jia v. Migrationsverket. As a
separate ground of appeal, the Minister argues that the trial judge fell into error in coming
to the view that the Minister had relied on the Policy Document and in her conclusion that
the reliance of the Minister on the Policy Document had “infected and vitiated” the
decision on the application. Separately, it is argued that the family members had not
adduced proofs sufficient to satisfy the Minister regarding the extent to which they were
dependant.
57. The respondents argue that the trial judge was correct and that absolute dependence
such that, without support, it would be impossible to live at a subsistence level, is not
required to be established, and that the Minister did, on the facts, base her decision on
the Policy Document and that the trial judge was correct to conclude that the Minister was
wrong in the view that there were manifest deficiencies in the documents lodged to
support the application.
58. I propose dealing with both judgments by first analysing the approach to the test of
dependence in the jurisprudence of the CJEU and then considering that found in the
judgments of the trial judges. The second part of my judgment concerns the degree of
scrutiny to be applied by the decision maker, or the proper means of applying the test.
The test of “dependence”
59. Because neither the Citizens Directive nor domestic implementing measures provide any
definition of dependence, there have been a number of references for preliminary rulings
to the CJEU and a number of material judgments of the Superior Courts of Ireland
addressing the test to be applied.
60. The first case in which the meaning of dependency was considered was Centre public
d'aide sociale de Courcelles v. Lebon (Case 316/85), ECLI:EU:C:1987:302, where the
question for the Court was the interpretation of the relevant provisions of the now
Page 12 ⇓
repealed Council Regulation (EEC) No 1612/68 On Freedom of Movement for Workers
within the Community, O.J. L 257, 19.10.1968, and in the course of which the concept of
dependency was also found. The decision was given in a preliminary ruling regarding
social welfare benefits of descendent family members and, for the purpose of the present
appeal, the proposition is that stated by the Court at para. 24:
“[T]he status of dependent member of a worker’s family […] is the result of a
factual situation, namely the provision of support by the worker, without there
being any need to determine the reasons for recourse to the worker’s support.”
61. The approach of the CJEU to the question as being one of the fact of, rather than the
reason for, dependence has informed its later judgments.
62. Some twenty years later, on 9 January 2007, the Grand Chamber of the Court, delivered
Jia v. Migrationsverket (Case C-1/05), ECLI:EU:C:2007:1, on a reference for a
preliminary ruling made by the Utlänningsnämnden, the Swedish Aliens Appeal Board,
concerning the interpretation of the then relevant Council Directive 73/148/EEC On the
Abolition of Restrictions on Movement and Residence within the Community for Nationals
of Member States with Regard to Establishment and the Provision of Services, O.J. L/172,
28.6.1973.
63. Ms Jia, a retired Chinese citizen had been refused a long-term residence permit in
Sweden where her son, also a Chinese citizen, had been resident with his wife, a German
citizenship. Ms Jia’s son had a resident permit as a spouse of a citizen of the then
European Community. Ms Jia entered Sweden on foot of a ninety-day visa and
immediately applied for a residence permit on the basis that she was financially
dependent on her son and daughter-in-law. The Swedish Immigration Board considered
that she had not shown a “real need for financial or other support which is regularly met
by the family members” and that the test was not satisfied by the meeting of an
occasional need or acceptance of a contribution, which is not “strictly necessary to
support the person in question”.
64. The Court made a number of observations regarding the nature of dependency including,
at para. 36, the fact that, as a matter of European law, the status of dependency does not
presuppose the existence of a right to maintenance, and it stated the proposition from
Centre public d'aide sociale de Courcelles v. Lebon as meaning that:
“there is no need to determine the reasons for recourse to that support or to raise
the question whether the person concerned is able to support himself by taking up
paid employment.”
65. Again, the Court held that the determination of whether a person was in fact dependent
was to be made by the Member State which must assess whether:
“having regard to their financial and social conditions, they [the relatives in the
ascending line] are not in a position to support themselves.”
Page 13 ⇓
66. The test involves an assessment of the need for material support in the State of origin, or
the “State whence they came”.
67. How a Member State makes that assessment is a matter of national law, subject to the
overriding proviso that the Member State must ensure the facilitation of freedom of
movement and the freedom of establishment and that the exercise by Union citizens and
members of their family of the right to reside in the territory of any Member State, at
para. 40.
68. Regarding the means by which dependency is established, the Court also noted, at paras.
38 and 41, the “lack of precision as to the means of acceptable proof” and said that proof
was to be adduced “by any appropriate means”.
69. The matter came to be considered again in 2012 in Secretary of State for the Home
from the UK Upper Tribunal.
70. In response to the question whether a Member State may impose particular
requirements as to the nature or duration of dependence within the meaning of article
3(2) of the Citizens Directive in order to satisfy itself that the dependence was “genuine
and stable” and had not been “brought about with the sole objective of obtaining entry
into and residence in its territory”, the Grand Chamber determined that while
requirements may be imposed, such requirements are to be consistent with the normal
meanings of the words of the Citizens Directive and must not deprive the provision of its
effectiveness, at para. 40:
“Accordingly, the answer to the fifth question referred is that, on a proper
construction of Article 3(2) of Directive 2004/38, the Member States may, in the
exercise of their discretion, impose particular requirements relating to the nature
and duration of dependence, provided that those requirements are consistent with
the normal meaning of the words relating to the dependence referred to in Article
3(2)(a) of the directive and do not deprive that provision of its effectiveness.”
71. The question again came to be considered in 2014 on a request for a preliminary ruling
from the Kammarrätt, the administrative court of appeal in Sweden, in Reyes v.
Migrationsverket, which concerned a young woman, a citizen of the Philippines, who had
been left in the care of her grandmother when she was three years old because her
mother had moved to Germany to work and support the family. Ms Reyes studied in high
school in the Philippines and later at college until she was aged twenty-three. Her mother
moved to Sweden and Ms Reyes applied for a residence permit there as a family member
of her mother and her Norwegian co-habiting partner whom her mother married some
months later.
72. During her childhood and years studying, Ms Reyes was in close contact with her mother
who had sent money every month to support her and her sisters and visited them each
year. Her visa application was rejected on the grounds that the money had not been
Page 14 ⇓
used to supply her basic needs of board and lodgings and access to healthcare in the
Philippines and because she had not shown how her home country’s social insurance and
security system might cover a citizen in her situation.
73. Having noted that Ms Reyes was over twenty-one years old and therefore could only
qualify under art. 2(2) of the Citizens Directive if she was dependent, and that
dependence was assessed in the factual circumstances and that a situation of “real
dependence” must be established on the facts, and having confirmed the proposition
already stated in Jia v. Migrationsverket that there was no need to determine the reasons
for dependence or for the recourse to family support, the CJEU went on to say as follows,
at paras. 24 and 25:
“24 The fact that, in circumstances such as those in question in the main proceedings, a
Union citizen regularly, for a significant period, pays a sum of money to that
descendant, necessary in order for him to support himself in the State of origin, is
such as to show that the descendant is in a real situation of dependence vis-à-vis
that citizen.
25 In those circumstances, that descendant cannot be required, in addition, to
establish that he has tried without success to find work or obtain subsistence
support from the authorities of his country of origin and/or otherwise tried to
support himself.”
74. The CJEU also confirmed that the need for material support must exist “in the State of
origin of that descendant or the State whence he came at the time when he applies to
join that citizen”, at para. 23.
75. Two factors are relevant for consideration in the present appeals. The assessment of
dependence must be made “having regard to [the applicant’s] financial and social
condition”, at para. 22, and the meaning is to be “construed broadly” in the light of the
principles of free movement which constitutes one of the foundations of the European
Union, at para. 23. The test for a claimant to establish real dependence should not be
“excessively difficult” as it would otherwise be “likely to deprive Articles 2(2)(c) and 7 of
Directive 2004/38 of their proper effect”.
76. The CJEU accepted, in general, the advice of Advocate General Mengozzi in his opinion in
Reyes v. Migrationsverket, ECLI:EU:C:2013:719, that it should not be made excessively
difficult for an applicant to succeed in an application or required him or her to show why
he or she has failed to find work or obtain subsistence or otherwise support himself or
herself in the State of origin.
77. Another fact of note in Reyes v. Migrationsverket, is that the CJEU did not follow the
opinion of Advocate General Geehoed in Jia v. Migrationsverket, ECLI:EU:C:2006:258, at
para. 96, where he had advocated a narrow definition of dependence in the following
terms:
Page 15 ⇓
“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 these 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 this is not the
Member State in which he is seeking to reside. In addition, it should be established
that this is not a temporary situation, but that it is structural in character.”
(Emphasis added)
78. The proposition stated by Advocate General Mengozzi in Reyes v. Migrationsverket, at
para. 52, is somewhat different:
“A dependant is a person who finds himself in a situation of dependence on the
Union citizen concerned. The dependence must be such that it is necessary for that
person to resort to the support of the Union citizen for the satisfaction of his
essential, that is to say basic, material needs.”
79. Thus, the approach of the CJEU has been to construe the concept of dependence broadly,
not to make it excessively difficult for an applicant to satisfy the test, and to involve
interrogation of the fact of rather than the reasons for the dependence.
80. The final judgment in the sequence, the judgment of the Fourth Chamber in Secretary of
State for the Home Department v. Banger (Case C‑89/17) ECLI:EU:C:2018, adds nothing
new material to these appeals, save that the CJEU again emphases hat the provisions of
the Citizens Directive are rooted in the fundamental principles derived from article 21(1)
of the Treaty on the Functioning of the European Union.
Summary of test
81. The test for dependence is one of EU law and an applicant must show, in the 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 must
be essential to life and the financial support must be more than merely “welcome” to use
the language of Edwards J. in M. v. Minister for Justice, Equality and Law Reform
[2009] IEHC 500.
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 the refusal.
Page 16 ⇓
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, an applicant does not have to establish that without that 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.
Discussion and conclusion
86. Mac Eochaidh held that there is no documentation from which it could be ascertained
which test was applied. Mr Hargadon, visa officer, in his correspondence explained the
test he was applying in the following terms:
“According to the decision of Edwards J. in [M. v. Minister for Justice, Equality and
Law Reform […], what must be shown is ‘some level of the handicap,
incapacitation, some disqualifying factor which makes one a dependant not simply
financially but also socially, something that precludes one from completely
independent living. Moreover… there must be elements of dependence, other than
normal emotional ties.’”
87. Mac Eochaidh J. concluded that the Minister had used the wrong test for dependency
because he “does not posit a test for dependence under EU law and another for
dependence under Irish law.”
88. He held, with reference to the considerations of the Mr. Hargadon in relation to the 2013
applications, at para. 39 of his judgment, that:
“Thus, it is clear that in the assessment which was carried out, both EU rights and
Irish constitutional rights pertaining to the family of an Irish citizen were analysed.
It is fair to say that Mr. Hargadon on this occasion comprehensively reassesses
every conceivable aspect of the claim advanced on behalf of the Cairo based
family.”
89. It is clear from the wording of the letters in which the applications were rejected, both at
first instance and on appeal, that the further arguments related to article 8 ECHR and
Article 41 of the Constitution bore further and separate consideration, and it was in this
separate and distinct application that Edwards J. directed his judgment in M. v. Minister
for Justice, Equality and Law Reform. He was dealing with the meaning of “dependence”
in the engagement of rights under articles 8 and 14 of the ECHR and/or Article 41 of the
Constitution, as outlined in Sanni v. Minister for Justice, Equality and Law Reform
[2007] IEHC 398. The Citizens Directive has a broader reach and applies to all Union citizens
who move or reside in a Member State other than that of which they are a national.
Page 17 ⇓
90. In the considerations of Mr. Hargadon there is no reference to either the 2006 Regulations
or the Directive.
91. As mentioned above, whether there is a different test for dependence under Irish law
related to members of the family of an Irish citizen or, indeed of a Union citizen when the
ECHR or the Constitution come into play, is outside the scope of these appeals and
ground 15 is misconceived as it misreads the judgment of Mac Eochaidh J.
92. I do not think that Mac Eochaidh J. was wrong in his analysis and identification or
interpretation of the correct test that ought to have been applied for the reasons I now
outline.
93. The interpretation that the CJEU has applied to the Citizens Directive is purposive and
broad. It does not require that the contribution from a Union citizen be such that, without
it, the dependant person could not survive. It is not a test to be expressed in the
negative. The exercise is to ascertain whether the family member relies on support to
meet a material or social need which is central to the person’s life and not peripheral or
merely discretionary. The backdrop is the positive desire expressed in the Citizens
Directive to support family unity.
94. It is, of course, true that the concept of “dependency” hinge upon the establishment of an
identifiable and meaningful contribution to the alleged dependent person. Mac Eochaidh
J. found that a contribution, even a minimum one, provided to a family member to meet
needs to sustain life, even if that contribution is minimal. This approach is consistent with
the decision of the CJEU in Jia v. Migrationsverket, that dependency means the provision
of material support by a Union citizen or his or her spouse to meet the essential needs of
the family member in the State of origin.
95. Mac Eochaidh J. considered, at para. 18, that the test from the judgments of the CJEU did
not mean that dependence requires “that assistance be given for all of the person’s
essential needs” as this would unduly restrict the category of persons entitled. He noted
that no guidance was available as to how much support is required, but took the view
that, where outside help is needed for the “essentials of life”, then, regardless how small
that assistance is, that is sufficient to meet the test for dependence. He gave his
examples of the essentials of life: Food, shelter, or even expensive drugs for someone
who is ill.
96. I do not consider that Mac Eochaidh J. by using the words “essentials of life” meant that
only assistance required to prevent a person from falling below subsistence living was
reckonable for the purposes of assessing dependency.
97. In my view, Mac Eochaidh J. was correct in his conclusions. I would add that, even if the
Minister is to reject a visa application on the basis of insufficiency of documentation,
which he or she is entitled to do, this must be done by reference to a test which requires
engagement with that documentation. This was not the case in the assessment of the
application at issue in this appeal.
Page 18 ⇓
98. The analysis of the ECJU does not propose a formula that is rigid or simple. The test has
been explained in different ways, and a certain fluidity of language is apparent. The core
concept, however, is that dependence means reliance on a Union citizen for some of the
essentials of life. That reliance may be for financial help of a relatively small amount, but
the concern is not to apply some quantitative test as to the amount of support actually
provided, or to ask whether the support could be obtained by other means in the country
of origin. Rather, the focus is on what is actually provided by way of financial assistance
and whether that is for some of the essentials of life. It is difficult, in those
circumstances, to formulate a test with precision, and that is more especially so when, as
here, the trial judge came to his conclusion on “reason” grounds and his observations
regarding the correct formulation of the test were obiter.
Alleged evidential inadequacies/the degree of scrutiny applied
99. In the appeal from the decision of Faherty J., the Minister argues that she subjected the
evidence concerning the personal and financial circumstances of the parents to an
“extensive examination”. Faherty J. found this approach to be wrong. Counsel for the
appellant argues that the Minister did not intend any pejorative or unduly restrictive
meaning by the phrase “extensive examination” and that, in truth, the Minister engaged a
liberal exercise.
100. Faherty J., at para. 78, regarded the use of the phrase “extensive examination” as
raising:
“[…] the spectre that the third and fourth applicants’ personal circumstances were
viewed through the wrong prism. In the 2004 Directive, for the purpose of free
movement, “an extensive examination” is reserved to the host Member State in
respect of the personal circumstances of permitted family members, a category the
third and fourth applicants did not fall into, being qualified family members […].”
101. The respondents argue that, by applying an “extensive examination”, the Minister, in
practice, made it more difficult for the applicants to be reunited with Union citizens and
that that is not consistent with the decision of Kennedy J. in S. S. (Pakistan) v. The
Governor of the Midlands Prison [2018] IECA 384, at para. 39:
“As mentioned already, somewhat differing rules apply to the situations of
qualifying family members and permitted family members. The fundamental
difference is that the entitlement to temporary residence for a bona fide qualifying
family member arises as a matter of law. One either satisfies the criteria or one
does not do so. The Minister has no role in the matter and qualification does not
depend on the exercise of a ministerial or other discretion. In the case of permitted
family members, however, the entitlement to temporary residence does not arise
as a matter of law. It is dependent on the exercise of a ministerial discretion, to be
exercised in accordance with Regulation 5 of the 2015 Regulations, to permit it.”
102. The Minister argues that the parents did not establish sufficient facts concerning their
housing arrangements in Pakistan. The written tenancy agreement on which the parents
Page 19 ⇓
relied was dated August 2015, although presented as having commenced in January
2015, and they claimed that they were living at the same address prior to that date. It
was said that it was unclear why a security deposit would be taken if they were already
living at the address. It seems also that bank statements showed that the father of the
first respondent was living in two other addresses prior to January 2014 and that a
different address again is found on the pension book of the mother of the first
respondent.
103. The respondents, in reply, argue that the Minister’s decision was not based on concerns
regarding the failure of the parents to prove that they were dependant and that the
Minister’s argument now, on appeal, that she was entitled to dispose of the application for
the visas in limine is not correct, as it fails to address the precise reason given for the
refusal, namely that insufficient evidence was provided rather than no evidence at all had
been adduced.
104. A second evidential inadequacy relied on by the appellant was that the evidence
concerning the health of the father of the first respondent was “not altogether
satisfactory”. A medical report from 2014 from the treating physician of the father of the
first respondent was doubted as this doctor is his son-in-law. An independent medical
report was requested and later furnished. The complaint is that this letter is undated and
that it came from a colleague of that relative.
105. Another reason given for the argument that the evidential inadequacies in the application
were such as to entitle the Minister to refuse the application in limine was that there was
no cogent evidence that the parents lived alone or, at least, had no contact with their
wider family. The fact that they were treated at their son-in-law’s medical practice was
given as an example of that contact.
106. The Minister also complained that the parents had not supplied a rent book showing rent
actually being paid or bank statements showing receipt of a monthly pension. What was
adduced in evidence was bank statements showing transfers from the first and second
respondents but not how the money was spent. No evidence of water or telephone bills
or other outgoings was provided. It was noted that car fuel was identified as an expense,
although the medical evidence was that the father of the first respondent was unable to
drive. No consideration seems to have been given as to whether it might be his wife who
would drive the car.
107. It is not appropriate that an appellate court would consider the evidence in this level of
detail, but it does bear comment that the Minister did not give as the reason for refusing
the application a view that no dependence at all had been established but, rather, that
insufficient evidence was given in support of the application.
108. The question for this Court on appeal is whether Faherty J. was correct that the Minister
had applied the wrong test, and that the deficiencies argued to be present in the
information supplied were sufficient to sustain the refusal decision.
Page 20 ⇓
109. The findings of fact 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, in 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 that 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 than 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.
Conclusion
113. For the reasons stated above in my judgment, I would therefore dismiss the appeals.
Subject to what counsel advises regarding the current state of the applications, the
matters should be returned to the Minister for further decision.
Result: Dismiss Appeals