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Aziz & Ors v The Minister for Justice and Equality [2020] IEHC 61 (18 February 2020)
URL: http://www.bailii.org/ie/cases/IEHC/2020/2020IEHC61.html
Cite as:
[2020] IEHC 61
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THE HIGH COURT
[2020] IEHC 61
[2018 No. 821 JR]
BETWEEN
FARIDOUN KHDIR AZIZ, SRWA HAMA MAJEED AND FRINY FARIDOUN KHDIR (A
MINOR SUING BY HER FATHER AND NEXT FRIEND FARIDOUN KHDIR AZIZ)
APPLICANTS
– AND –
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT
JUDGMENT of Mr. Justice Max Barrett delivered on 18th February 2020.
1. This application concerns a failed EU Treaty Rights (“EUTR”) application made under the
European Communities (Free Movement of Persons) Regulations 2015. The first-named
applicant claims to be a British national who is the husband of the second applicant (with
the first and second applicants being the parents, it is claimed, of the third-named
applicant). Unfortunately, some difficulty has come in establishing the nature of the
relationship between the trio. Though a variety of observations are made in the decision-
letters of 20 July 2018, it would be fair to say that a key focus of the Minister has been
the inability of the applicants to demonstrate that they have the relationships necessary
for EU Treaty Rights to come into play. In this regard, the Minister had the following
concerns:
(1) a United Kingdom deed poll certificate shows that on 20 January 2016, a person by
the name of ‘Faridoun Salehi’ changed his name to ‘Faridoun Khdir Aziz’;
(2) in an exhibited marriage certificate of 25 October 2012 (so at a time when the first
named applicant’s name would appear to have been ‘Faridoun Salehi’) a person by
the name of ‘Faridoun Khdir Aziz’ was married. The Minister stated in the letter of
20 July 2018 ‘We have received no explanation for this discrepancy’; and
(3) the birth certificate for Ms Friny Khidr, dated 29 September 2014, names her father
as ‘Faridoun Khdir’ (so at a time when the first named applicant’s name would
appear to have been ‘Faridoun Salehi’).
2. The decision letter of 20 July also contains statements that all pages of the birth and
marriage certificates and accompanying translations are not attested. There was no need
for the Minister to revert to the first-named applicant before reaching this conclusion; the
Minister is entitled to arrive at a decision by reference to the application documentation
placed before him (Khan & Anor. v. The Minister for Justice, Equality and Law Reform
[2017] IEHC 800, paras. 84-85; Badshah & Anor. v. The Minister for Justice and Equality
3. For some reason, the Minister also saw fit, in his correspondence, to query why, if the
first-named applicant is a British national, he has not simply sought a British passport for
his daughter. With every respect, this is none of the Minister’s business in the context
presenting: the applicants sought to make EUTR applications and those are the
applications that fell to be decided; if they met the EUTR criteria, their applications fell to
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succeed; if they did not the applications fell to fail. Whether the applicants might have
sought to bring some other application in respect of some perceived eligibility for a
passport is neither here nor there.
4. In any event, the decision letters go on to state as follows:
“[Your solicitor]…[i]n a letter dated…15 July 2018…stated that your sponsor’s name
change was due to his father’s and grandfather’s names being used, as is the
tradition in many Arab states and indeed, Iraqi officials insisted that his father’s and
grandfather’s names be used. It further states that Mr Khdir’s name as per his UK
passport ‘Salehi’ is his family name. It is also stated that Mr Khdir apparently felt
that this may cause issues in both the United Kingdom and Ireland and thus
changed his name by deed poll in 2016.
However, your solicitor submitted no documentary evidence of your EU Citizen in
support of the above claims. For example, evidence of your stated sponsor’s and
grandfather’s names e.g. their birth certificates duly attested. We have received no
birth certificate for Mr Khdir displaying these names, We have received no
documentary evidence of his using the same ‘Salehi’ before his arrival in the United
Kingdom.”
5. Consequently, the decision-letter concludes, the Minister cannot validate the solicitor’s
claims or confirm that the first-named applicant is the Faridoun Khdir Aziz named on the
submitted marriage certificate or the father of the child on the submitted birth certificate.
6. The decision-letter also goes on to state that, based on the information supplied, the
Minister has concerns about the validity and veracity of the first-named applicant’s
presence in Ireland: specifically contact had been made with the first-named applicant’s
purported landlord who appeared unaware that the first-named applicant was a tenant on
his premises.
7. Before proceeding to consider the substance of this application, the court should note that
it accepts the contention of the Minister that the challenge here is to the two central
findings in the decisions of 20 July, viz. that the applicants had failed to prove (1) the
requisite family relationship for their EUTR application to succeed, and (2) that the
second-named applicant is genuinely exercising free movement rights in the State. The
pleadings do not plead the issues of adequate transposition of Directive 2004/38/EC of
the European Parliament and the Council on the right of citizens of the Union and their
family members to move and reside freely within the territory of the Member States
amending Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC,
68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC
and 93/96/EEC (“Citizens’ Rights Directive”) [2004] OJ L 158/77 or the point concerning
having regard to irrelevant considerations/failure to have regard to relevant
considerations.
8. The court turns below to the two questions properly arising.
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(1) Was the respondent entitled to refuse the visa appeal on the basis of a failure to
prove that the applicants were beneficiaries within the meaning of the
Directive?
9. ‘Yes’ for the reasons that follow: -
(a) the burden of proof rests on the applicants to establish the requisite family
relationship (Khan and Badshah, supra);
(b) the Minister, notwithstanding the observations in the just-referenced case-law,
went beyond what is strictly required of him at law and gave the applicants a
further opportunity to clarify matters, but they failed to do so to the Minister’s
satisfaction. If anything (and the court obviously makes no criticism of this), the
Minister has been fairer than fair in how he approached matters in this regard; he
seems to have taken the view that, whereas he could lawfully have taken a stricter
approach, he was prepared to show some leniency;
(c) there is nothing unreasonable, unlawful or irrational in the Minister’s decision to
refuse the appeal by reference to the evidence that was placed before him; and
(d) although the court is satisfied to rest its affirmative answer to Question (1) on
points (a)-(c), it notes in passing the unusual fact – unexplained in the pleadings or
in the submissions before the court – that in the evidence tendered in these
proceedings, the first-named applicant offers two mutually inconsistent
explanations for the name-change that presents. Thus in an affidavit of 25 July
2019, the first-named applicant avers that “Prior to my name being changed by
deed poll in the UK I was using my previous surname ‘Salehi’ as used in Iraq in
accordance with the customs and laws there which require you to use your father
and/or paternal grandfather’s name as a surname”. Yet in the grounding affidavit,
the first-named applicant avers, inter alia, that “It was explained to the Respondent
that I was compelled by the Iraqi authorities to use the names ‘Faridoun Khdir Aziz
as in Iraq one’s father’s and grandfather’s names is used in place of one’s
surname”.
(2) Was the respondent entitled to find that he was not satisfied that the first-
named applicant is not engaged in the genuine exercise of free movement
rights?
10. The first-named applicant provided the Minister with a letter, ostensibly from his landlord,
which letter indicated that the respondent could make direct contact with the landlord.
The first-named applicant knew or ought to have known therefore (it is difficult to see
how he could not have anticipated) that further enquiries might be made with the
landlord. These enquiries were made, at which point the landlord indicated that someone
other than the first-named applicant was his sole tenant at the named property. The
weight to be placed on the results of the inquiry made was a matter for the Minister: no
breach of fair procedures or other illegality presents in this regard.
Conclusion
11. Having regard to the foregoing, the court must respectfully decline all the reliefs sought.
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12. In passing, had it been necessary for the court to address,
(i) the ‘consideration/non-consideration of the irrelevant/relevant’ point which was
raised in submission but which does not arise from the pleadings, and had the court
concluded that an irrelevant consideration was factored into the decision-making
(the ‘why not get a British passport for your ostensible daughter?’ point), it would
nonetheless have exercised its discretion, in all the circumstances presenting, not
to grant any of the reliefs sought,
(ii) whether pursuant to Arts. 3(2)(b) and 5(2) of the Citizens’ Rights Directive and
under reg.4(3)(b) of the European Communities (Free Movement of Persons)
Regulations 2015, there has been a failure to grant “every facility” to the applicants
to avail of their contended-for EUTR because of a contended-for failure by the
Minister to keep reverting to the applicants in the course of considering the
application before him, the court notes (a) again, the above-referenced segments
of the decisions in Khan and Badshah, (b) that notwithstanding those decisions the
Minister did in fact revert to the applicants here and afford them a chance to clarify
matters, which they failed to do to the Minister’s satisfaction, and (c) as touched
upon in para. 10(d) above, even in his affidavit evidence in the within proceedings,
evidence that is doubtless carefully drafted and vetted, the first-named applicant
cannot consistently explain what his surname was in Iraq and why; the applicants,
with respect, do not have a legal right whereby the Minister must keep reverting to
them until the first-named applicant can work out when and why he has used
different surnames over his lifetime,
but again, neither points (i) nor (ii) arise for consideration when one has due regard to
the pleadings.
Result: Judgment in favour of the respondent.