Nature of Protection

Cases

M.A.M. (Somalia) -v- The Minister for Justice and Equality

; K.N. (Usbekistan) & ors -v- The Minister for Justice and Equality; I.K. (Georgia) -v- The Minister for Justice and Equality & ors [2018] IEHC 113 (26 February 2018)
[2018] IEHC 113

Judgment
Title:
M.A.M. (Somalia) -v- The Minister for Justice and Equality; K.N. (Usbekistan) & ors -v- The Minister for Justice and Equality; I.K. (Georgia) -v- The Minister for Justice and Equality & ors
Neutral Citation:
[2018] IEHC 113
High Court Record Number:
2017 908 JR; 2017 988 JR; 2017 730 JR
Date of Delivery:
26/02/2018
Court:
High Court
Judgment by:
Humphreys J.
Status:
Approved
[2018] IEHC 113
THE HIGH COURT
JUDICIAL REVIEW

[2017 No. 908 J.R.]
BETWEEN
M.A.M. (SOMALIA)
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT
[2017 No. 988 J.R.]

K.N. (UZBEKISTAN), E.M, F.M (A MINOR SUING BY HER GRANDMOTHER AND NEXT FRIEND K.N.) and Y.M. (A MINOR SUING BY HER GRANDMOTHER AND NEXT FRIEND K.N.)
APPLICANTS
AND
THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT
[2017 No. 730 J.R.]

I.K. (GEORGIA)
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL, AND THE COMMISSIONER OF AN GARDA SÍOCHÁNA

RESPONDENTS
No.1

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 26th day of February, 2018
1. Does a refugee continue to be a refugee after acquiring citizenship of the State? That fairly simple question, the main issue in these three cases, which have been heard together, has a fairly simple and indeed monosyllabic answer which I will come to later in this judgment; but to get to that answer, one has to open a series of Russian dolls of increasing complexity that have been put together very skilfully on behalf of the applicants.
Facts in M.A.M.
2. The applicant was born in Somalia in 1980 and came to Ireland as an asylum seeker in 2007. She was granted asylum on 29th August, 2008 and was naturalised as an Irish citizen on 21st October, 2013. In June, 2009 she applied for family reunification with her children, having lost contact with her husband. That application was granted and the applicant’s children and wards and her mother were granted permission to come to Ireland.

3. In December, 2016 the applicant re-established contact with her husband and then applied for family reunification in respect of him on 7th April, 2017. That application was refused by a decision dated 16th May, 2017 on the basis that the applicant had not applied for family reunification within twelve months of the grant of refugee status, as allegedly required by s. 56(8) of the International Protection Act 2015. Shortly thereafter, the Minister reviewed that decision and withdrew it on 14th September, 2017 (on the basis that s. 56(8) was not retrospective as originally alleged) but then made a further decision on 24th October, 2017 to the effect that the application for family reunification was being refused on the basis that as the applicant had become an Irish citizen in 2013 she was not eligible to apply for family reunification under s. 18 of the Refugee Act 1996.

4. In this case I have heard helpful submissions from Mr. Colm O’Dwyer S.C. (with Ms. Patricia Brazil B.L.) for the applicant and from Ms. Sara Moorhead S.C. (with Ms. Emily Farrell B.L.) for the respondent.
Facts in K.N.
5. The first named applicant is a naturalised Irish citizen born in 1972 in Uzbekistan. She entered the State in February, 2008 and was granted asylum on 25th February, 2009. In 2009 she made an application for family reunification on behalf of her mother and three daughters, including the second named applicant. The application in relation to the second named applicant was withdrawn in 2011. A feature that this case has in common with other cases is that prior to August, 2010, the Minister took the view that an Irish citizen was not subject to the provisions on family reunification under s. 18 of the Refugee Act 1996 and was not entitled to make an application under those provisions. However in August, 2010 on foot of legal advice that the Minister is now saying is incorrect, the Minister began processing applications for family reunification from citizen applicants.

6. In January, 2012 the first named applicant was granted family reunification in respect of two of her children. She was naturalised on 13th December, 2012. On or about 19th July, 2016 she applied for family reunification under s. 18 of the 1996 Act and submitted further formal information on 26th July, 2016. That application was in respect of the second, third and fourth named applicants and the first named applicant’s son-in-law.

7. Another feature that the case has in common with the other cases is the relevance of the commencement on 31st December, 2016 of the International Protection Act 2015. That commencement was notified to the first named applicant by letter issued on behalf of the Minister in December, 2016. Shortly before the commencement of the Act, the Minister reversed the approach being taken to family reunification by naturalised persons and as of October, 2017 the Minister reverted to the previous interpretation of s. 18 of the 1996 Act to the effect that citizens were not eligible to avail of that section. On 28th November, 2017 the Refugee Applications Commissioner informed the first named applicant that as she was a citizen they had ceased to process the application at the request of the Minister and by letter dated 29th November, 2017 the Minister notified the first named applicant of the decision to refuse the application for family reunification in respect of the second, third and fourth named applicants on the basis that, as a citizen, s. 18 of the 1996 Act did not apply.

8. In this case I have heard helpful submissions from Ms. Rosario Boyle S.C. (with Mr. Anthony Lowry B.L.) for the applicants and from Ms. Sara Moorhead S.C. (with Ms. Kilda Mooney B.L.) for the respondents.
Facts in I.K.
9. On 15th January, 1995 the applicant underwent a ceremony of marriage in Georgia with Mr. I.K. On 23rd September, 2008 the applicant says she arrived in the State. She applied for asylum on 21st April, 2009 following a fire in a house she was sharing with her husband. In the course of that application she stated that her husband was living in the State and that their three children were still in Georgia. On 14th October, 2009 she received a recommendation that she not be declared a refugee. That recommendation was affirmed on appeal by the tribunal on 8th February, 2010. A proposal to make a deportation order was issued on 23rd March, 2010. On 14th April, 2010, in response, she applied for leave to remain and subsidiary protection.

10. The subsidiary protection application was refused on 19th September, 2012 and a deportation order was made in respect of the applicant on 21st March, 2013. On 20th May, 2013 the applicant made the first of three applications for revocation of the deportation order pursuant to s. 3(11) of the Immigration Act 1999. That first application was made in effect on her behalf and on behalf of her husband, Mr. K. On 14th October, 2013 she failed to present to GNIB and then continued to evade for a period of almost two years until 21st July, 2015. On 4th November, 2013 the deportation order was affirmed. On 27th April, 2015 the applicant went through a ceremony of marriage with Mr. B.D., a recognised refugee from Georgia and a naturalised Irish citizen. On 17th June, 2015, the applicant made a second s. 3(11) application based on her marriage to Mr. B.D. in which she claimed for the first time to the Minister that she was never legally married to Mr. K. On 4th May, 2017 the second s. 3(11) application was refused. On 29th May, 2017 she made a third s. 3(11) application which she says was to correct the errors identified in the refusal of the second application. That third application was refused on 12th September, 2017, and is now challenged in these proceedings. On 20th September, 2017 she made an application for family reunification as the spouse of a recognised refugee, which application is apparently pending.

11. In this case I have heard helpful submissions from Mr. Aengus Ó Corráin B.L. and Mr. Brian Leahy B.L., who also addressed the court, for the applicant and from Ms. Sara Moorhead S.C. (with Ms. Sinead McGrath B.L.) for the respondent.
Categories of application for family reunification.
12. Any analysis of this area needs to distinguish between three categories of application for family reunification in respect of a recognised refugee depending on when the application was made, as follows:

(i). The first category is applications prior to the 2015 Act. In accordance with s. 70(14) of the 2015 Act, in the case of K.N. the application was correctly dealt with under s. 18 of the 1996 Act because it was made prior to the repeal of the 1996 Act. Thus in such a case neither ss. 47 or 56 of the 2015 Act applies.
(ii). Secondly, applications made post the 2015 Act but where the citizen is naturalised pre the 2015 Act. Applications after the 31st December, 2016 are being dealt with under the 2015 Act. In the case of I.K. and M.A.M. the application is made under s. 56 of the 2015 Act. The time limit under s. 56(8) of twelve months from declaration of refugee status is being interpreted in the case of pre-commencement applications as meaning twelve months from the commencement of the 2015 Act. In such cases s. 56 of the 2015 Act applies whereas s. 47(9) does not.

(iii). The third category is applications for family reunification where the application is made after commencement of the 2015 Act and where the sponsor is also naturalised after such commencement. Section 47(9) of the 2015 Act provides that a declaration of refugee status or subsidiary protection ceases to have effect on a person becoming a citizen. Thus in this third category both ss. 47 and 56 of the 2015 Act apply.

Most grounds of challenge in M.A.M. are based on a false premise.
13. The applicant in M.A.M. sought a declaration that s. 47(9) is not retrospective. But that declaration is unnecessary because the Minister is not contending that that subsection is retrospective. Most of the grounds of challenge in M.A.M. are based on the false premise that s. 47(9) is being applied to the applicant. For the reasons I have just outlined, that is not so. The fact that this was pleaded is not entirely the applicant’s fault because there was some vacillation on the part of the Minister as to how the application should be treated.
14. Nonetheless, it is clear now that s. 47(9) was not applied to the applicant and thus grounds 2, 4, 6 and 7 seem to me to fail in limine. That leaves grounds 1, 3 and 5, which I will deal with later.
I.K. involves the collateral attack on a deportation order
15. Any grounds as to why the applicant in I.K. should not be deported by reason of the second marriage existed as of the date of that marriage on 27th April, 2015. Not one but two s. 3(11) decisions have been made since then. At the very latest, the applicant should have challenged the refusal of the second s. 3(11) decision dated 4th May, 2017. It seems to me that in accordance with the logic of s. 5 of the Illegal Immigrants (Trafficking) Act 2000 as interpreted by the Supreme Court in Re Illegal Immigrant (Trafficking) Bill 1999 [2000] IESC 19 [2000] 21 I.R. 360, she cannot do so now simply because she has had the idea of making a further s. 3(11) application. If I am wrong about that, I will go on to consider the remaining issues.
I.K.’s application is an exercise in jus tertii
16. The applicant’s rights in I.K., if any, are entirely derivative from the rights of her second husband, the sponsor in the family reunification application, who is not a party to the proceedings. It seems to me that the applicant cannot make the case that she is entitled to succeed in circumstances where her husband is not a party to the proceedings. If that was the only difficulty for the applicant I would have looked at ways of enabling her to rectify the matter but unfortunately, as I have indicated, it is not. However, if I am wrong about that I will go on to consider the grounds raised.
Grounds in I.K.
17. The grounds pleaded in I.K. can be analysed as follows:

(i). The first ground seems to me to be simply a statement of fact.
(ii). The second ground is that the Minister erred in holding that the applicant’s second husband ceased to be a refugee as a result of becoming an Irish citizen, and I will come to this later.

(iii). The third ground is that the Minister erred in not giving any analysis in the determination of the claim that the applicant’s spouse is a disabled person. However, it is not generally necessary for the Minister to engage in narrative discussion, especially in a s. 3(11) context.

(iv). The fourth ground is that the Minister erred in holding that it was a valid option that a recognised refugee could return to his country of persecution. It seems to me that is not a point that is open on the facts because it is clear that Mr. B.D. did return to Georgia on a number of occasions. No further narrative discussion is required. The analysis in I.K. says that failed asylum seekers are not being subject to ill-treatment in Georgia. It accepts that Mr. B.D. is not a failed asylum seeker but contends he is similar because he made an asylum claim. It seems to me that there is no error at all in the analysis, still less one that invalidates the decision. The analysis, it seems to me, is entirely reasonable.

(v). The fifth ground is that as a result of the Minister’s actions the applicant has incurred loss. That is a derivative point depending on unlawfulness being established.

(vi). The sixth ground is that the Minister is obliged by art. 26 of the EU Charter on Fundamental Rights to recognise the rights of persons with disabilities. That may well be so but it has not been established that the decision is unlawful on that ground. The complaint is certainly unparticularised and in any event art. 26 of the Charter does not override all other immigration law.

(vii). Ground seven is that the respondent is obliged to give effect to the U.N. Convention on Refugees. Again that is unparticularised and not a basis for relief as pleaded. In any event the Geneva Convention is not necessarily supportive of the applicant’s contentions for reasons I will outline later.

Gorry-related complaint in I.K.
18. A submission is made that the s. 3(11) decision is contrary to the Court of Appeal decision in Gorry v. Minister for Justice and Equality [2017] IECA 282 (Unreported, Court of Appeal, 27th October, 2017). However, it seems to me that complaint is not pleaded and is not therefore open to the applicant.
Does the decision in I.K. violate art. 20 of the TFEU and the Charter of Fundamental Rights?
19. The applicant claims that the decision could have the effect of forcing a citizen to leave the territory of the European Union by analogy with the Case C-34/09 Zambrano case. It seems to me that that complaint is not pleaded, but apart from the fact that it could be an extension of EU law above and beyond Zambrano, it is very clear that the applicant’s second husband is not going to leave Ireland and therefore the issue does not arise (see Igbosonu v. Minister for Justice and Equality [2017] IEHC 681 [2017] 10 JIC 0407 (Unreported, High Court, 4th November, 2017)).
The declaratory nature of the recognition of refugee status
20. Recital 14 to the Qualification Directive (Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted) states that “the recognition of refugee status is a declaratory act”. This principle is very clearly established both in European and international law, see Goodwin-Gill The Refugee and International Law, 3rd ed. (Oxford, 2007) at p. 51; “In principle a person becomes a refugee at the moment when he or she satisfies the definition so the determination of status is declaratory rather than constitutive” (see also H.I.D. v. Minister for Justice and Equality [2011] IEHC 33 (Unreported, Cooke J., 9th February, 2011) and Danqua v. Minister for Justice and Equality [2015] IECA 118 (Unreported, Court of Appeal, 10th June, 2015) (Hogan J.)).

21. A number of things follow from the declaratory nature of the recognition of refugee status. Firstly, if the grant of refugee status is declaratory it follows that the withdrawal of the recognition of refugee status is also declaratory in the sense that it recognises the person has ceased to be, or is not, a refugee.

22. Secondly, the declaratory nature of the grant of refugee status acknowledges that there will be a time lag between the person being a refugee and being recognised as such. That is acknowledged in the UNHCR handbook at para. 28 which states: “A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee.”

23. Likewise there will inevitably be a time lag between the person ceasing to be a refugee and the declaration of refugee status being withdrawn. In the latter case, during that time lag, the person may be a person in respect of whom there is a declaration of refugee status but he or she is not fact a refugee. The crucial thing for present purposes is that to avail of s. 18 of the Refugee Act 1996 one must not only be in possession of a declaration but one must also actually be refugee. That is clear from the words of the section itself.
On the ordinary meaning of the Refugee Act 1996, is a person who becomes an Irish citizen no longer a refugee?
24. A refugee is defined by s. 2 of the Refugee Act 1996, which has been repealed by the 2015 Act; but s. 2(1) of the 2015 Act contains an equivalent definition. A refugee is a person who owing to a well founded fear of being persecuted for a convention reason “is outside the country of his or her nationality” and is unable or unwilling to avail of protection of that country, and related provisions were made for stateless persons as well as provision for certain exceptions. On that definition, a person ceases to be a refugee as soon as he or she becomes an Irish citizen. That is reinforced by s. 21(1)(c) which envisages that a declaration of refugee status can be revoked if a person acquires a new nationality other than that of the State. That exclusion only makes sense if a person who acquires nationality of the State is no longer a refugee. The new wording of that provision in the 2015 Act (see s. 52 and s. 9(1)(c)) is also consistent with the conclusion that ceasing to be a refugee happens automatically on acquiring Irish citizenship, but independently of those provisions the definition of refugee is clear. As one no longer is a refugee if one becomes a citizen it has the necessary effect that the declaration of refugee status ceases to have effect by operation of law without the necessity for formal revocation under s. 21. That explains the exclusion for persons who are Irish citizens. There is no basis in logic or in the text of the statute for the argument made by Mr. O’Dwyer at para. 20 of his written submissions that the words “at the time of assessment of the refugee or at the asylum application” should be read into s. 2. That would be contrary to established principles of statutory interpretation and would be a judicial amendment to the Act by way of a usurpation of the legislative function, but furthermore, as will become clear, it would be an amendment very much contrary to European and international law.

25. The respondent’s submissions include the homely example that a junior counsel may become a senior counsel, which supersedes the previous status, but the status as a junior counsel is not formally or expressly revoked. It seems to me that very much a similar procedure applies here. There is no injustice to an applicant because becoming a citizen is a volitional act. It confers numerous benefits on an applicant and the new status supersedes the applicant’s previous status. This is also perfectly consistent with international law. Article 1C(3) of the Geneva Convention provides that “This Convention shall cease to apply to any person falling under the terms of section A if: … He has acquired a new nationality, and enjoys the protection of the country of his new nationality”. Article 1E goes on to say that: “The provisions of this Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.” The UNHCR handbook notes at para. 88 that: “There are no exceptions to this rule.”

26. The status of the UNHCR handbook as a guide for the court has been acknowledged in multiple decisions including I.R. v. Refugee Appeals Tribunal [2009] IEHC 353 (Unreported, Cooke J., 24th July, 2009) para. 7, V.Z. v. Minister for Justice, Equality and Law Reform [2002] 2 IR 135 at 145 and 148, A.N. v. Minister for Justice, Equality and Law Reform [2007] IESC 44 [2008] 2 IR 48 and K.D. (Nigeria) v. Refugee Appeals Tribunal [2013] IEHC 481 [2013] 1 I.R. 448.

27. Such conclusions are also consistent with the “Note on the Cessation Clauses”, document EC/47/SC/CRPE.20 by the UNHCR Standing Committee (30th May, 1997), at para. 15: “Clearly, where a refugee has acquired the nationality of the country of asylum through naturalisation refugee status will cease”. Paragraph 35 calls for procedures to challenge such cessation where this terminates the residence rights of the refugee, but this clearly has absolutely no relevance where citizenship applies. It is manifest as a matter of the ordinary interpretation of Irish law consistent with international law that an applicant who becomes a citizen of the State automatically ceases to be a refugee by operation of law without the necessity for any formal decision in that regard or any formal revocation of the declaration of refugee status.

28. Essentially the same question has been posed and answered in the same way in the U.K. by the Court of Appeal of England and Wales in D.L. (D.R.C.) v. Entry Clearance Officer, Karachi [2008] EWCA Civ 1420 (Unreported, Court of Appeal, 18th December, 2008) where Laws L.J. said at para. 29 “In my judgment it is plain that a recognised refugee who thereafter obtains the citizenship of his host country, whose protection he then enjoys, loses his refugee status. Article 1C(3) of the Refugee Convention could not be clearer.” I would only respectfully add that art. 1E is also of particular relevance in this context. Laws L.J. went on to rely at para. 30 on the UNHCR handbook, in particular para. 129 which says: “As in the case of the re-acquisition of nationality, this third cessation clause derives from the principle that a person who enjoys national protection is not in need of international protection.” Paragraph 130 of the UNHCR handbook goes on to say: “The nationality that the refugee acquires is usually that of the country of his residence. A refugee living in one country may, however, in certain cases, acquire the nationality of another country. If he does so, his refugee status will also cease, provided that the new nationality also carries the protection of the country of his new nationality.”

29. At para. 31, Laws L.J. also relied on the analysis of this issue in Professor Hathaway’s book The Rights of Refugees under International Law (Cambridge University Press, 2005) at p. 916: “If a refugee opts to accept an offer of citizenship there, with entitlement fully to participate in all aspects of that state’s public life, his or her need for the surrogate protection of refugee law comes to an end. There is no need for surrogate protection in such a case, as the refugee is able and entitled to benefit from the protection of his or her new country of nationality.”

30. I note in passing that this issue did not arise in the Supreme Court appeal on this issue, sub nom. Z.N. (Afghanistan) (FC) and Others v. Entry Clearance Officer (Karachi) [2010] UKSC 21.
Does EU law require the loss of refugee status on the acquisition of nationality to be expressly revoked or legislated for as an automatic consequence?
31. In oral submissions Mr. Ó Corráin made the interesting suggestion that European law, in his submission, required the loss of refugee status in such an instance to be either expressly revoked or legislated for as an automatic consequence. This particular point does not seem to me to have been pleaded by any of the applicants so therefore it does not seem to be really open to them, but assuming I am wrong about that I will go on to consider the issue.

32. I have already highlighted the difference between being a refugee, which is an automatic condition which either exists or not, or which may cease to exist, and the making or revocation of a grant of refugee status which requires a positive decision by the authorities of the host country, but a decision which is purely declaratory. Mr. Ó Corráin argued that, by virtue of EU law, there had to be either an affirmative withdrawal of refugee status under art. 14 of the Qualification Directive or pursuant to express provision for automatic removal of that status under art. 38(4) of the Procedures Directive (Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection) and that in the absence of either the applicants were entitled to benefit from s. 18 of the 1996 Act.

33. The error in this superficially attractive argument is perhaps subtle as there are a few moving parts to the submission; but the error is basically the conflation of being a refugee with acquisition or loss of the purely declaratory position of refugee status. Being a refugee is dealt with by the definition of refugee in the Qualification Directive and cessation of that position is dealt with in art. 11. By contrast, and much less importantly for our purposes, the loss of declaratory refugee status is dealt with in art. 14 of the Qualification Directive and art. 38 of the Procedures Directive which itself occurs in Chapter 4 of the directive headed “Procedures for the Withdrawal of Refugee Status”, the emphasis being on status, that is the declaratory recognition of a person as a refugee. The submission made assumes that arts. 11 and 13 of the Qualification Directive and art. 38 of the Procedures Directive are talking about the same thing, but in fact the applicants are mixing apples and oranges here.

34. The declaratory nature of recognition means that the question of whether one actually is or has ceased to be a refugee exists independently of whether or not one is recognised or when the recognition of that position or its cessation is made. Just as Irish and international law does, the Qualification Directive in arts. 2(c) and (d) draws the distinction between being a refugee and refugee status. The latter is “a recognition by a member state that a third country national or stateless person is a refugee”. It is built into the very definition of a refugee in EU law that the person must be a third country national. By definition if they become a citizen of the host state they are no longer a third country national and therefore automatically they are no longer a refugee; nor indeed are they outside the country of their nationality or unable to avail of its protection. Article 11 provides that a “third country national or a stateless person shall cease to be a refugee” in certain circumstances. Thus art. 11 in its opening words refers back to cessation in the case of a third country national or stateless person, which seems to me to be based on an unarticulated premise that is inherent in art. 2 rather than arising by virtue of art. 11, that independently of art. 11 a person ceases automatically to be a refugee upon ceasing to be either such third country national or stateless.

35. But if I am wrong and if it is necessary to look to the wording of art. 11, para. (1)(c) of that article provides for a person ceasing to be a refugee on the acquisition of citizenship and on enjoying the protection of the status of citizenship. Again given the declaratory nature of recognition, that is a provision that must act independently and automatically; and thus immediately upon being granted Irish citizenship a refugee ceases to be such. Article 14 goes on to provide that “if he or she has ceased to be a refugee in accordance with Article 11” the member state may “revoke, end or refuse to renew” the refugee status, but that is concerned with the recognition of the refugee and not the question of being a refugee. Article 38 of the Procedures Directive 2005/85/EC provides at para. 1 that “Member States shall ensure that, where the competent authority is considering withdrawing the refugee status in accordance with Article 14 of Directive 2004/83/EC, certain procedural guarantees apply”; at para. 2 that “Member States shall ensure that the decision of the competent authority to withdraw the refugee status is given in writing. The reasons in fact and in law shall be stated in the decision and information on how to challenge it”; at para. 3 that “Once the competent authority has taken the decision to withdraw the refugee status, Article 15, paragraph 2, Article 16, paragraph 1 and Article 21 are equally applicable”; and at para. 4 that “By derogation to paragraphs 1, 2 and 3 of this Article, Member States may decide that the refugee status shall lapse by law in case of cessation in accordance with Article 11(1)(a) to (d) [of the Qualification Directive] or if the refugee has unequivocally renounced his/her recognition as a refugee.”

36. While reliance was placed on art. 38(4) this does not seem to apply because firstly, the sponsor for family reunification in each case is no longer a third country national. Therefore the withdrawal of refugee status is inherent in art. 2 rather than by virtue of ceasing to be a refugee under art. 11, and therefore art. 38.4 which refers back to art. 11 does not apply; and secondly because there is no particular reason why the decision by the member state to provide for a lapse of refugee status cannot be inferred as opposed to being expressly provided for as it now is in s. 49(7) of the 2015 Act. More fundamentally, an individual procedure can do absolutely nothing for such an applicant and would get them absolutely nowhere because they are clearly not refugees and thus no matter what procedure is applied to them, their declaration cannot be regarded as standing consistently with having citizenship of the State. On a purposive interpretation there is no reason to interpret EU law as going beyond the Geneva Convention. Refugee status is no longer necessary to protect an applicant if he or she chooses to become a citizen of the host country (see recital 6 to and art. 1 of the Qualification Directive, which refers to the need for protection). Hailbronner and Thym in EU Immigration Asylum Law, 2nd edn.(C.H. Beck/Hart/Nomos, 2016), part 3D p. 1195 by Judge Ingo Kraft states “due to the subsidiarity of refugee status … an alien will cease to be a refugee if this condition is fulfilled” that is the condition of acquisition of permanent residence in the host country equivalent to the indigenous population.

37. I will assume for a moment that I am entirely wrong about the foregoing and that there is a point of substance here to the effect that a formal withdrawal of refugee status is required or an express provision for it to automatically lapse as contended for as a matter of EU law. The problem for the applicants is that even if all of the arguments presented as to EU law are correct, they only amount to saying that the Minister has incorrectly failed to make a wholly superfluous affirmative decision to formally revoke the declaration of refugee status. The point that those arguments do not reach is that s. 18 requires a sponsor not simply to have a declaration but also to actually be a refugee. We go back to the declaratory nature of refugee status. No amount of inaction by the Minister can make a person who is not a refugee into a refugee. That is so either under s. 18 of the Refugee Act 1996 or s. 56 of the 2015 Act because to apply under s. 56 one has to be a qualified person, which is defined by s. 2(1) as a person who is either:“(a) a refugee and in relation to whom a refugee declaration is in force, or (b) a person eligible for subsidiary protection and in relation to whom a subsidiary protection declaration is in force”. So the same position applies under either procedure.

38. By availing of Irish citizenship in Ireland each applicant or sponsor, as the case may be, ceases automatically to be a refugee in Irish, international and EU law as of that date. If, which I do not accept, there is a pointless obligation to formally revoke the declaration of refugee status, any failure to do so does not enable the person to satisfy s. 18 of the 1996 Act, which clearly requires the person not only to have a declaration but to actually be a refugee. So while I commend Mr. Ó Corráin on his very beguiling argument which certainly gave me some pause for thought, on further examination it seems to me that even if his argument is entirely correct, which in my view it is not, that is still insufficient to enable a valid application for family reunification to be made, because even if an applicant holds an unrevoked declaration of refugee status, the applicant in such a scenario is not actually a refugee as required by section s. 18. The answer to the riddle presented by this case is pithily summarised in the State’s written submissions at para. 57, that “If a person is not a ‘refugee’ as defined for the purposes of the Refugee Act, 1996 he or she cannot be a ‘refugee in relation to whom a declaration is in force’”.
Given that the Minister decided between 2010 and 2017 to deal with such applications on a different basis, is there an unjustified discrimination in the new policy?
39. There is no substance to this argument. As pleaded by the respondents in written submissions at para. 79 of K.N., “if this was done in error the Minister cannot be required to continue with such an error”. There is no principle of continuity such as to enable somebody to continue to get away with something that they or others have been getting away with to date. Changing an incorrect position to reflect correct legal advice does not amount to unlawful or unconstitutional discrimination, or discrimination contrary to the EU Charter or the ECHR.
Given that the Minister decided between 2010 and 2017 to accept such applications is there a legitimate expectation in that regard?
40. The answer to this question is clearly not. To accept such a contention would be an enormous and unjustified expansion of the doctrine of legitimate expectation in a manner that would significantly impair the necessary evolution of administrative practices. There is no reliance on the previous practice such that it would make it unjust to allow the Minister to change. That the need for a criterion for positive injustice would be caused by the change of position is clear from Webb v. Ireland [1987] IESC 2 [1988] IR 353 [1988] ILRM 565 at 384 citing Lord Denning M.R. in Amalgamated Property Co. v. Texas Bank [1982] Q.B. 84 at 122 that a party could not go back on a mistaken assumption “when it would be unfair or unjust to allow him to do so”.

41. The sponsors here merely made an application which the law requires to be refused because the sponsors as citizens are not entitled to apply under s. 18. Secondly, and in any event, no such legitimate expectation could contradict the clear wording of the Act: per Henchy J. in Re Green Dale Building Company Ltd. [1977] 1 I.R. 256 at 264: “it is incompatible with parliamentary democracy for the Courts, under the guise of estoppel or waiver or any other doctrine, to set aside the will of Parliament as constitutionally embodied in a statute.” That decision was more recently followed in Ashbourne Holdings Ltd v. An Bord Pleanala [2003] IESC 18 [2003] 2 IR 114 [2003] 2 ILRM 446 at 134 and R.X. v. Minister for Justice and Equality [2010] IEHC 446 (Unreported, Hogan J., 10th December, 2010).
Given that the Minister decided similar applications on a different basis previously, is the Minister acting unlawfully, arbitrarily or in breach of fair procedures?
42. It is absurd to argue that it is unlawful for the Minister to decide not to act unlawfully simply because he was acting unlawfully prior to 2017. The ascertainment of a previous error of law means that the change in position is not unlawful, arbitrary or contrary to fair procedures. Mr. O’Dwyer suggested that the first refusal of family reunification in M.A.M. was not based on the ultimate reason. To that one has to say, yes but so what? It is clear that some changes in position took place but we now have the Minister’s current position. No injustice has been done to the applicants by the fact that it took the Minister a few assays to get a legally sustainable position.

43. The arbitrariness argument is based on the contention that fair procedures require some reasonable mechanisms for achieving consistency in both the interpretation and application of law (see P.P.A. v. Refugee Appeals Tribunal [2007] 4 IR 94 [2006] IESC 53 at 104 per Geoghegan J.). But that principle refers to consistency in relation to the operation of a scheme under a discrete set of rules at a given time. It does not in any sense prevent the rules from being changed or clarified from time to time. Such change or clarification does not constitute arbitrariness simply because there is a difference between the result that might have been arrived at pre the interpretative change or the amendment or post such change or amendment. To hold otherwise would be to illegitimately and impermissibly interfere with the entitlement of the public administration to review, improve and change its policies and practices from time to time.
If an applicant as a naturalised citizen can no longer apply for family reunification under s. 18 of the 1996 Act, does that amount to unlawful discrimination?
44. It is well established that the prohibition on discrimination, whether under the Constitution, the ECHR, international law or general principles of judicial review only prohibits unjustified discrimination (see e.g., S.N. v. Ireland (No. 2) [2007] 4 IR 369). In M.D. (a minor) v. Ireland [2012] IESC 10 [2012] 1 I.R. 697 [2012] 2 I.L.R.M. 305 at para. 40, Denham C.J. cited the overlooked point made by Aristotle in Nicomachean Ethics (1131a) that unlike things must be treated as unlike as well as treating like things as like, and that not only “when equals possess or are allotted unequal shares” but also “persons not equal equal shares, that quarrels and complaints arise”. The need for discrimination to be unjustified before it is unconstitutional also arises in Re Illegal Immigrant (Trafficking) Bill 1999 [2000] IESC 19 [2000] 21 I.R. 360 at 410. As it was put by the Strasbourg Court in Carvalho Pinto De Sousa Morais v. Portugal (Application no. 17484/15, European Court of Human Rights, 25 July 2017) at para. 44 “A difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised.”

45. There is a perfectly rational and objective basis for the distinction between refugees who becomes citizens and those who do not. The former voluntarily trade the advantages of the refugee status for those of citizenship and acquire new benefits and a new legal situation. They are under no obligation to do so and thus no unlawful discrimination contrary to the Constitution, EU law, the ECHR or international law can arise. Indeed if a refugee remained entitled to operate s. 18 after acquiring citizenship, that could constitute discrimination against other Irish citizens under the applicant’s logic. In any event, art. 14 of the ECHR seems to have limited, if any, relevance as there is no right to asylum under the Convention and it is well established that art. 14 is not a stand-alone right to equality but only applies where a Convention right is in issue.
Alleged breach of substantive family rights including under Articles 40 and 41 of the Constitution and art. 8 of the ECHR.
46. While submissions on this point were made in M.A.M., this point does not seem to be pleaded either in that case or in I.K. so it cannot be pursued by those applicants. However, it is pleaded in K.N. where the applicants also rely on the right to respect for private life as protected by s. 18 of the 1996 Act, principle B in the recommendation of the final Act of the UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Recital 27 and art. 23 of Directive 2004/83, Article 7 and 18 of the EU Charter, the UN guidelines on reunification of refugee families, July 1983, Articles 40.3 and 41 of the Constitution, and art. 8 of the ECHR as applied by s. 3 of the European Convention on Human Rights Act 2003.

47. Although in the absence of a pleading he was not therefore entitled to make the point, Mr. O’Dwyer submitted that the state is “stopping” spouses from reuniting contrary to their family rights. That is not so. All that is happening is that applicants cannot apply under one particular statutory provision, namely s. 18 of the 1996 Act. Although they are outside s. 18 of the 1996 Act, other mechanisms, particularly the Immigration Act 2004 or the Non-EEA Family Reunification Policy document, provide a route for family members outside the State to apply for permissions to enter, so they are not entirely without legal recourse. It is suggested that such family members would not comply with the normal criteria, but that is not hugely relevant. If, and which I am by no means deciding, the applicants are correct in their contention that they would have some constitutional right to reunification arising from substantive family rights, the Minister would have to operate the 2004 Act and the policy document discretion in a constitutional manner.
Discretion in I.K.
48. A separate point arises in I.K., even if I am incorrect in all of the following. It seems to me there are three substantial reasons to exercise discretion against the applicant. Firstly, her evasion for a nearly two year period. The second reason is her misleading of the Minister and the court in the sense that she represented herself as married when claiming asylum (see exhibit AK1, which was put before the court by the respondents rather than being part of the original application), whereas she later decided that it would suit her to deny having gone through a marriage ceremony and stated in her submission under s. 3(11) at exhibit IK 2 that she merely cohabited with Mr. K., which was regarded as a traditional marriage. There is no reference whatsoever in this submission to a ceremony. It seems to me that that is a misleadingly evasive representation and one incompatible with the information provided in the asylum claim. She failed to acknowledge the contradiction until pressed by the court. The third reason is that in 2015, when the applicant gave notice of her marriage to B.D., not only did she represent herself as single but in the declaration of no impediment she stated that she had never had any previous marriage either in Ireland or any other country “including traditional and customary marriages”. That question in the declaration under the Civil Registration Act 2004 s. 46(1)(b) is clearly designed to give the registrar notice of any previous ceremony of marriage so that the validity or otherwise of such ceremony can be examined on behalf of the registrar. Mr. Ó Corráin submits that the previous marriage was not legally valid anyway, and that may or may not be so, but that is somewhat beside the point. The point is that an applicant has to give an honest and accurate declaration to enable the registrar to satisfy him or herself in that regard, and she failed to do that. She certainly has not established evidentially that her first marriage was invalid in law as a matter of probability and it seems to me there is a question mark over the validity of her marriage to Mr. B.D., but I am not deciding that. However, even if her second marriage is valid, that point is quite independent of the three grounds on which I would exercise discretion against her in any event, even if I am wrong about any of the foregoing findings as to the substance of her claim.
Order
49. The answer to the question posed at the outset of the judgment is “no”. A refugee in the State automatically ceases to be a refugee by operation of law on acquisition of citizenship of the State. No formal revocation of a declaration of refugee status is required in that regard. Such a position is fully consistent with the position taken in EU and international law and in the neighbouring jurisdiction. It poses no incompatibility with the Constitution, the EU Charter, other EU law, international law or the ECHR. It is also clear that it is not contrary to the Constitution, EU law, the ECHR or international law for the State to make express provision that a declaration of refugee status ceases to have effect on the acquisition of Irish nationality. Such express provision has been made in respect of applications made following naturalisations on or after 31st December, 2016 but the absence of that provision for naturalisations before that date does not mean that persons so naturalised are refugees. They are not. Nor is an express revocation of refugee status required in such cases.

50. The order therefore will be that each application is dismissed.

 

A.M.S. -v- Minister for Justice and Equality

[2014] IEHC 57 (13 February 2014)
Judgment Title: A.M.S. -v- Minister for Justice and Equality

Neutral Citation: [2014] IEHC 57

High Court Record Number: 2012 858 JR

Date of Delivery: 13/02/2014

Court: High Court

Composition of Court:

Judgment by: Mac Eochaidh J.

Status of Judgment: Approved

 

Neutral Citation: [2014] IEHC 57

THE HIGH COURT
JUDICIAL REVIEW

[2012 No. 858 J.R.]

 

BETWEEN

A. M. S.
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 13th day of February 2014
1. Section 18 of the Refugee Act 1996, makes provision for declared refugees to be reunited with their families in Ireland. For some family members (spouse and children, for example) the process is practically automatic. For others (siblings, parents, etc.) dependency has to be established. This case is concerned with the interpretation of s.18 and, in particular, with the question as to whether the Minister was entitled to refuse dependent family members permission to enter and remain in the State because of the likelihood that they would rely on social welfare. (A complaint that the proportionality assessment was inadequate is also considered.)
Background
2. The applicant is a citizen of Somalia, born on 1st February, 1985. He was declared to be a refugee in Ireland on 8th January, 2009. By letter of 11th May 2009, he applied for family reunification in respect of his mother, wife, daughter, two sisters and two brothers. As explained below, the decision in suit is only concerned with the applicant’s mother, born in 1950 and his living siblings, born in 1992, 1993 and 1997. He did not have the assistance of a lawyer for this application.

3. The Office of the Refugee Applications Commissioner (‘ORAC’) has an investigative function on behalf of the Minister when such applications are made. The applicant completed a questionnaire prepared by ORAC. The form posed questions about the applicant’s immediate family (child and spouse) and separate questions in respect of other family members. Question 5 asked:

“If any of your dependents, in this application, is dependent on you, on grounds other than medical, please explain in detail how/why each of them is dependent on you?”
The answer given to this question was as follows:
“My family and I lived together all our life even when I was married and now my family are in a very dangerous miserable situation in refugee camp outside Mogadishu. The fighting in Mogadishu is endless and still continuing and my family are in a risk at any time.”
Question 7 asks:
“Since you left, with whom have they lived, and what was the person(s)’ relationship to each dependent?”
Answer:
“Since I left, my family fled into different areas where they could get shelter and most of them were getting help from local NGO.”
Question 11 asked:
“If any of your dependents, in this application, are under 18 years please state the full names and the full addresses of the natural parents.”
Answer:
“All my siblings are under 18 and still under the care of my mother living together in a refugee camp outside Mogadishu.”
Question 12 asked:
“If you are supporting dependent members included in this application, please provide evidence of such e.g. money transfer receipts and state and provide evidence of how you would support and accommodate them if they were to be granted family reunification.”
Answer:
“N/A”
Question 13 asked:
“Are any of your dependent family members, included in this application, employed?”
Answer:
“No”
4. A further section of the questionnaire asked questions about the sponsor refugee’s personal circumstances including whether he is employed or where he lives, how much his habitation costs, if he receives a rent supplement.
Question B11 asks:

“How do you propose to support and accommodate the dependent members in your application should they be granted family reunification? Please provide details.”
Answer:
“I am looking for a job and I will inform you as soon as I am employed.”
Question A.4 asks:
“If you are in receipt of Social Welfare benefits, please provide the following: name of pension benefit allowance of which you are currently in receipt and amount received per week.”
This question was not answered.
5. The Office of the Refugee Applications Commissioner compiled a report pursuant to s. 18(2) of the 1996 Act dated September 1st 2009. The conclusion of the report is in the following terms:

“The refugee asserts that his family members named above are dependent upon him but he did not provide proof of this dependency. The applicant stated on his questionnaire that he was unemployed. He did not state his source of income or how he supports his family members named above. The refugee states on his questionnaire that he lives in a one-bedroom flat and pays €530 in rent per month. He receives a rent supplement of €392 per month. A letter was sent to the refugee from this office on 18/08/2009 requesting that he provide this office with details of his current income. It also asked that he provide evidence of his support of his family and asked for Passports for each subject. The applicant replied in his letter of 21/08/2009 in which he did not give any information with regard to his current economic situation and he did not submit any further original documentation in support of his application. He stated that he was awaiting documents. He said that due to the war he has lost contact with his family and that the last information that he has had from them is that they had fled to the border area. He stated that he would inform this office of developments as soon as he receives information with regard to them.”
6. It is apparent from this text that ORAC focussed exclusively on financial matters in assessing dependency though this was not the only form of dependency advanced. The applicant, when asked how the family was dependent on him, replied that the family had always lived together and that they were now in danger in the refugee camp in Mogadishu.
7. By February 2010, the applicant had retained Daly Lynch Crowe & Morris, Solicitors who informed the Department of Justice, Equality and Law Reform, Family Reunification Section, that the sponsor refugee’s family had left Mogadishu due to escalating fighting, that he had lost contact with them during this time and that they had travelled south across the border to Ethiopia, eventually arriving in Addis Ababa where they made contact with the applicant again. It was explained that the applicant’s 7-year old daughter, Saabrin, and his 15-year old brother had been killed in an explosion in south Somalia en route to Ethiopia in mid-January 2010, 6 months after the applicant had sought permission to bring them to Ireland.

8. In the same letter, the applicant’s solicitors submitted details of financial transfers from the applicant to his family as well as other evidence in support of the reunification application.

9. By letter of 24th January 2011, the Minister’s officials sought further information in respect of the applicant’s marriage and information in respect of his mother and siblings. The information sought was as follows:

“1. Documentary evidence to establish that [the family members] are suffering from a mental or physical disability to such an extent that it is not reasonable for them to maintain themselves, if applicable. This should include up to date detailed medical hospital reports for the relevant subjects including a detailed prognosis, along with official translations of same.
2. Any further documentary evidence to establish that the above named subjects of the application are financially dependent on your client.

3. Details in relation to any State benefit payments and/or pension entitlements and/or allowances or NGO assistance that the above named subjects of the application may have, along with any supporting documentation you may have.

4. Clarification as to who owns and pays the rent or mortgage on the property in which the above named subjects of the application reside, along with any supporting documentation you may have.

5. A detailed statement from your client outlining who has supported, maintained and provided for the above named subjects of the application since your client arrived in the State on 5th May 2007.”

The answers given to the Minister’s officials were as follows:
“1. Our client’s siblings . . . are not suffering from mental or physical disabilities . . .
2. We enclose further evidence of the family members’ financial dependency upon our client . . .

3. The family members have no entitlement to Social Welfare in Ethiopia, are undocumented refugees and do not receive NGO assistance, are not entitled to work or to access education or healthcare services.

4. The family rents a room in a house and used the money sent by the applicant to pay for the rent.

5. Our client instructs that he and his family became separated when their home was attacked by militia in 2007. He re-established contact with them in or around May 2009, at which time they were living in a refugee camp in Mogadishu. He instructs that the camp was under constant threat of attack and they were not safe there. They left Mogadishu in 2009 due to the escalated fighting there. They travelled south and across the border into Ethiopia. This journey took a number of months and, as advised previously, our client’s daughter and brother were killed by an explosion en route. Upon their arrival in Ethiopia in or around January 2010, the rest of the family re-established contact with our client. From this time onwards, our client has been sending remittances to them. He instructs that he saves whatever he can from the Social Welfare payments to send to his family. He further instructs that they have no other means of financial support and are entirely reliant on the money he sends them. They use this money for food and shelter and would be destitute but for his remittance. We would ask you to note that the average annual [sic] in Ethiopia is approximately US$220 p.a. and the Gross Domestic Product per capita is US$364. We would submit, therefore, that the evidence furnished is supportive of our client’s contention that his family is financially dependent upon him.”

The letter then set out twelve remittances totalling €1,864 and further receipts to be submitted later.
10. In addition to the description of the circumstances and relationships of the family, the letter set out some general principles with respect to family reunification by reference to statements of the United Nations High Commissioner for Refugees. The letter said:

“The United Nations High Commissioner for Refugees (UNHCR) has indicated that there are five guiding principles which underlie efforts to protect family unity and to promote and facilitate family reunification in the resettlement process. These are:
(a) the family is the natural and fundamental group of society, and is entitled to protection by States;

(b) the refugee family is essential to ensure the protection and wellbeing of its individual members;

(c) the principle of dependency entails flexible and expansive family reunification criteria that are culturally sensitive and situation-specific;

(d) humanitarian considerations support family reunification efforts;

(e) the refugee family is essential to the successful integration of resettled refugees.

Further guidance regarding the matters to be addressed in considering this case is provided by the following extracts of the UNHCR Resettlement Handbook:

On the issue of dependency:
‘There is no internationally recognised definition of dependency (. . .) the concept of dependent persons should be understood as persons who depend for their existence substantially and directly on any other person in particular because of economic reasons, but also taking emotional dependency into consideration . . .’

On the issue of dependent parents of adult refugees:
‘Humanitarian and economic considerations weigh in favour of reunification for dependent parents who originally lived with the refugee or refugee family or who would otherwise be left alone or destitute’.

On the issue of promotion of comprehensive family reunification:
‘In many cases, a refugee’s next of kin remain behind in the country of origin, or in a country of first refuge, because they are not considered by the prospective country of reception to belong to what is known as the ‘family nucleus’, that is to say father, mother and minor children. While there is justification in giving priority to safeguarding this basic unit, the exclusion of members of a refugee household who have been deprived of their social and economic support as a result of the break up the family unit often results in hardship. While it may not always be possible to reunite entire groups which in the country of origin form part of a family in the broader traditional sense, governments should be encouraged to give positive consideration to the inclusion of those persons, whatever their age, educational level or material status, whose economic and social viability remains dependent on the family nucleus’.”

11. By letter of 21st April 2011, the applicant’s solicitors submitted evidence of further remittances of approximately €550 and US$250.
12. The Minister’s officials wrote again to the applicant’s solicitor on 20th April 2011, for information of the applicant’s income, details of how he proposed to maintain, accommodate and support the siblings and details of his current residential accommodation.

13. On 9th May 2011, the applicant’s solicitor replied saying that the applicant was seeking employment and was in receipt of €188 per week in Job Seeker’s allowance and €82 per week in rent allowance. His accommodation is indicated as being a two-bedroom apartment in Cork.

14. Evidence of attempts by the applicant to gain employment and education was submitted. He was registered with Foras Áiseanna Saothar (FAS). He received a Competency Certificate from FETAC for ‘Level 4 Manual Handling’ on 28th May 2010. He enrolled with Cork College of Commerce for a course in Computers, Business and English between September 2009 and May 2010.
The Minister’s Decision
15. The Minister’s first decision on the family reunification application was quashed by Cross J. in a judgment entitled A.M.S. (Somalia) v. Minister for Justice, Equality and Law Reform [2012] IEHC 72. By letter of 5th April 2012, the applicant’s solicitors renewed their application. On the date of the second application the mother was 62 and the applicant’s siblings were 20, 19 and 15. The applicant’s solicitor said:

“All of the family members had been living together in a refugee camp outside Mogadishu at that time [May 2009, the date of the first application]. They are now in Addis Ababa in Ethiopia. The applicant’s daughter and one of his brothers have since died in January 2010 in a bomb attack while attempting to get to Ethiopia. Mr. S. was the male head of household and responsible for his younger brothers and sisters, as well as his mother, because his own father had died in March 2007.”
16. The Minister’s decision accepts that the family members are financially dependent on the applicant and that his mother is suffering from a physical disability to such an extent that it is not reasonable for her to maintain herself fully. The decision is taken by reference to what is said to be a consideration of the provisions of Article 8 of the European Convention on Human Rights.
17. The decision, in part, is in the following terms:-

“The Lawful Operation of Immigration Control
A decision taken pursuant to the lawful operation of immigration control of a State will be proportionate in all save a minority of exceptional cases. The decision to refuse the application for family reunification in this case was taken pursuant to the lawful operation of the immigration control and it is proportionate.
Economic Wellbeing of the Country
Consideration was given to the economic wellbeing of the country under Article 8(2) in relation to admission of relatives of a person resident in a contracting state. In Omoregie v. Norway [1996] 22 EHRR 93 the ECtHR found that protecting the “economic wellbeing of the country” constituted a legitimate aim under Article 8(2) of the ECHR (para. 56). Consideration was therefore given to the fact that the country was currently experiencing an economic downturn with high unemployment and a consequential burden on the welfare and education systems in the state. As a result of these facts, if [the family members in Ethiopia] are granted permission to enter the state it would be likely that they may become a burden on the State.

Health and Welfare Systems
Also of relevance is the impact of granting permission to [the family members in Ethiopia] to enter the state on the health and welfare system in the state. I note once again [the applicant’s mother] suffers with hypertension, chronic liver disease, chronic rheumatism, dementia and depression and that it is recommended that she continue her medication, avoid salty diets, have a follow up every month and needs close family support for social and psychological care as she feels sad and depressed. I accept that the quality of care may be greater in Ireland but this is not a factor, for the purposes of Article 8, imposing an obligation on a contracting state to admit a family member who is ill save in exceptional circumstances (see D. v. the United Kingdom [1997] 24 EHRR 45, N. v. Secretary of State for the Home Department [2005] 2 AC 296, Agbonlahor v. the Minister for Justice, Equality and Law Reform [2007] IEHC 166).”

The Statutory Provision
18. Section 18 of the Refugee Act 1996 (as amended) reads as follows:
“18.—(1) Subject to section 17 (2), a refugee in relation to whom a declaration is in force may apply to the Minister for permission to be granted to a member of his or her family to enter and to reside in the State and the Minister shall cause such an application to be referred to the Commissioner and a notification thereof to be given to the High Commissioner.
(2) Where an application is referred to the Commissioner under subsection (1), it shall be the function of the Commissioner to investigate the application and to submit a report in writing to the Minister and such report shall set out the relationship between the refugee concerned and the person the subject of the application and the domestic circumstances of the person.

(3) (a) Subject to subsection (5), if, after consideration of a report of the Commissioner submitted to the Minister under subsection (2), the Minister is satisfied that the person the subject of the application is a member of the family or the civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 of the refugee, the Minister shall grant permission in writing to the person to enter and reside in the State and the person shall be entitled to the rights and privileges specified in section 3 for such period as the refugee is entitled to remain in the State.

(b) In paragraph (a), “member of the family”, in relation to a refugee, means—

(i) in case the refugee is married, his or her spouse (provided that the marriage is subsisting on the date of the refugee’s application pursuant to subsection (1)),
(ii) in case the refugee is, on the date of his or her application pursuant to subsection (1), under the age of 18 years and is not married, his or her parents, or

(iii) a child of the refugee who, on the date of the refugee’s application pursuant to subsection (1), is under the age of 18 years and is not married.

(4) (a) The Minister may, at his or her discretion, grant permission to a dependent member of the family of a refugee to enter and reside in the State and such member shall be entitled to the rights and privileges specified in section 3 for such period as the refugee is entitled to remain in the State.
(b) In paragraph (a), ‘dependent member of the family’, in relation to a refugee, means any grandparent, parent, brother, sister, child, grandchild, ward or guardian of the refugee who is dependent on the refugee or is suffering from a mental or physical disability to such extent that it is not reasonable for him or her to maintain himself or herself fully.

(5) The Minister may refuse to grant permission to enter and reside in the State to a person referred to in subsection (3) or (4) or revoke any permission granted to such a person in the interest of national security or public policy (‘ordre public’).

(6) The Minister may, on application in writing in that behalf and on payment to the Minister of such fee (if any) as may be prescribed with the consent of the Minister for Finance, issue to a person in respect of whom a permission granted under subsection (3) or (4) is in force a travel document identifying the holder thereof as such a person.”

The Nature of the Minister’s Discretion
19. The applicant complains that the Minister has exceeded the s.18(4)(a) discretion. It was submitted that its limits may be found in s.18(5) of the Act which provides that the Minister may refuse to grant permission to enter and reside in the State in the interest of national security or public policy (‘ordre public’). The applicant advances what his counsel describes as a narrow interpretation of s. 18, which is that once the Minister accepts that externally located family members are dependents then absent reasons of “national security or public policy (“ordre public”)” the Minister is required to grant leave to enter.
20. No argument was advanced as to why a narrow interpretation of s.18 (4) and (5) should be adopted. The plain meaning of the words in s. 18(5) do not suggest that the Minister is confined to reasons of “national security or public policy (‘ordre public’)”. The applicant invites the court to read section 18(5) as though it said “the Minister may only refuse to grant permission to enter and reside in the State in the interest of national security or public policy (“ordre public”)”. The word “only” does not appear in the subsection, nor does the context suggest this meaning. Adding words to a statute is generally impermissible and therefore I reject this argument.

21. The applicant’s second argument is that the proper construction of the legislative provision precludes the likelihood of need social welfare support as a reason to refuse an application. This argument suggests that the question of dependency can only be addressed once. Where it is accepted that dependency exists, the applicant argues that the Minister cannot use that criteria again in deciding whether to exercise his discretion to permit or refuse entry. The argument posits that the Oireachtas had expressly contemplated and facilitated the admission of family members of a sponsor refugee who are dependent on him or on her. It is suggested that because a finding of dependency is a pre-condition to qualify for consideration for entry, such circumstance could not have a disqualifying effect.

22. In support of the proposition that the Minister was not entitled to rely on the economic impact in Ireland of permitting family reunification, reference is made to the decision of Clark J. in Ducale v. Minister for Justice, Equality and Law Reform [2013] IEHC 25[6] where she said:-

“The cases which have come before this Court indicate a bewildering lack of clarity on the circumstances which trigger the benevolent application of that ministerial discretion. Anecdotal evidence indicates that only refugees who hold down full time jobs and are financially self sufficient will have a positive response to FRU [Family Reunification] applications made under s. 18(4). Such a policy would clearly militate against s. 18(4) applications made by Somali refugees as many have a poor command of English and have suffered years of deprivation and displacement in camps all of which has sapped their health, rendering their job prospects and financial independence extremely problematic. Country reports with which the Court is familiar suggest that many Somalis from minority tribes have been excluded from education unless such education is provided by humanitarian agencies in IDP camps in Somalia or in refugee camps in neighbouring countries. Somali IDP’s and refugees are generally dependent on UN aid and/or the generosity of relatives who have already obtained refugee status in wealthier countries and who then, in turn, provide the funds for family members to travel and themselves seek asylum. A great many Somalis who live as squatters in neighbouring countries are, because of the fairly intractable nature of the conflict, unlikely to return home and are largely unwelcome and marginalised in their unwilling host countries. All of this information is generally available and it has to be supposed that these facts are well known to the Minister and to the civil servants in FRU sections of the Office of the Refugee Applications Commissioner and the Department of Justice.”
I note what the learned judge says though I would be loath to refer to the Minister’s discretion as a form of benevolence. If it were so, outcomes would be unpredictable and decisions could depend on the personal preferences of the Minister of the day and in my view no administrative decision making process could ever be so loosely framed.
23. The applicant refers to the words of Cross J. in A.M.S. (Somalia) v. The Minister for Justice and Equality [2012] IEHC 72 at para. 3.13, where he said:-

“It is difficult to conceive in the real world of very many family member dependents of refugees not being a burden on the state, at least in their initial period of residence.”
24. The applicant’s submission is that if the Minister is entitled to use the likelihood of social welfare reliance (and economic wellbeing of the State) as criteria for refusing family reunification, then this effectively precludes family reunification for Somalis.
25. The nature of the Minister’s discretion under s. 18(4) was considered by Cooke J. in Hassan Sheekh Ali v. The Minister for Justice, Equality and Law Reform [2011] IEHC 115. In that case, the sponsor refugee was seriously ill and severely disabled, with irreversible kidney disease. Having lost his wife, two of his children and his mother, he fled Somalia in 2007, leaving his remaining five children in the care of his sister who had three children of her own.

26. The Minister granted permission for the sponsor refugee’s five children to enter the State. Application was made for family reunification in respect of his sister and her three children. This application was refused because the money transfers from the sponsor refugee to the family did not establish dependency and, of particular relevance to the issues in suit, because “the refugee has (not) sufficient income and resources to support and maintain the subject of the application in the State”. Cooke J. quashed the Minister’s decision, finding that the decision on dependency was irrational as the facts demonstrated that the foreign family did rely on the remittances made from Ireland. With respect to the second reason for the decision, Cooke J. said as follows:

“On the other hand, if the ability of the refugee to support them in this country is a factor taken into account for the purpose of the exercise of discretion in the grant of permission for reunification, there is no error because it is clearly open to the Minister to take into account the ability of the refugee to continue to support and maintain the family members in question after their arrival in the State. That is, obviously, a crucial consideration for the Minister in this case, given the admitted inability of the applicant to gain employment, his reliance upon disability benefit and the fact that he already has his own children to look after. Thus, to the extent that it can be said that the refusal is based upon the exercise of discretion, it could not be said to be unreasonable or irrational for the Minister to conclude that family reunification in this case ought not to be extended to the sister and the three children.”
The judge sought to emphasise:
“. . .that in granting the relief sought, [the court] is not holding that the Minister is precluded from taking account of a refugee’s inability to support dependents in the State as a factor in the exercise of the discretion. As pointed out earlier in this judgment, the Minister’s discretion under s. 18(4) can only be exercised in respect of ‘dependent members of the family’. Accordingly, in making a determination on an application based on s. 18(4) the Minister must first come to a decision as to whether subjects of the application come within that definition as a matter of fact. To do so he must be satisfied that the subjects of the application come within the scope of the specific relationships listed and are either dependent upon the applicant or suffering from mental or physical disability. It is only when one of those criteria has been met that the exercise of the discretion can arise. The Minister is not, however, precluded in exercising discretion from taking into account factors such as the ability of the refugee to support and maintain the family members in question having regard to his own personal, medical and financial position.”
27. The points of contrast between this case and the facts in Hassan Sheekh Ali are that the sponsor refugee in Hassan Sheekh Ali was not only unemployed but also very seriously ill with irreversible kidney disease. There was no prospect of the refugee ever working or supporting his family from earned income. The Minister decided that the sponsor refugee was not in a position to support his family should they be permitted to enter the State. In this case, there is no suggestion that the sponsor refugee is under any comparable permanent disability, though he is, for the moment, dependent on Social Welfare. He has undertaken training and studies in Ireland and is actively seeking employment. Thus, the Minister’s decision in this case was not that the sponsor refugee could never support the family members, but rather, that the family would need the support of the State. No assessment is made of how long the support will be needed. (I accept, of course, that the Minister’s decision in this case infers that the sponsor refugee is not, as matters stand, able to support the family in Ireland).
28. In my view the dicta of Cooke J. in Hassan Sheekh Ali in respect of the Minister’s discretion under s. 18(4) are obiter because the learned judge (notwithstanding the terms in which the grant of leave to seek judicial review was framed) was not reviewing an exercise of discretion by the Minister following a finding that the refugee’s family, being dependent, qualified. There is no record in the case of competing submissions from counsel on the nature and extent of Ministerial discretion under section 18(4) or any sense that the core issue in the case was the nature of that discretion. That question was incidental to the decision of the court.

29. In A.A.M. [Somalia] v. The Minister for Justice and Equality [2013] IEHC 68, Clark J. reviewed a decision which refused family reunification on the basis that dependency had not been established. However, she also made obiter comments to the effect that the Minister was entitled, in exercising s. 18(4) discretion, to refuse permission on the basis that the migrant family would become dependent on the State. The learned judge said:

“13. Under the terms of s.18(4), even for those whose relationship and dependency are established, there is no guarantee that they will in fact be granted permission to join the refugee in the State as the Minister is free to have regard to other factors which he considers important. The Minister is perfectly entitled to have regard to the education, health and employment prospects of those family members who wish to enter the State and the degree of likelihood that they will become a burden on the State. He cannot be criticised if, in Ireland’s current difficult financial state, he refuses permission for persons who will immediately become social welfare dependent, provided that due consideration has been given to the circumstances of the refugee applicant and his dependent family members. Equally, he is perfectly free to exercise discretion on humanitarian grounds and grant such persons leave to enter and remain. The exercise of discretion under s. 18(4) is a matter for the Minister and absent any discriminatory or arbitrary behaviour it is not for the Court to interfere with the exercise of Ministerial discretion.”
Later, Clark J. said as follows:
“17 . . . . even if [the sponsor refugee] were to establish a blood relationship to his mother and siblings and to establish a high degree of financial and / or other form of dependency, his claim to family reunification is more likely than not to fail because he has insufficient resources to house and maintain his family, which are matters the Minister is perfectly entitled to consider when exercising his discretion under s. 18(4).”
The respondent, naturally, urges the court to follow the obiter comments in these cases which suggest that the Minister may refuse family reunification if the incoming family will need social welfare assistance.
Statutory Interpretation
30. The nature of the discretion conferred on the Minister in s.18(4) is to be understood by reference to the purpose of the legislative provision. In East Donegal Co-Operative & Ors. v. Attorney General [1970] 1 I.R. 317, the Supreme Court said:

“All the powers granted to the Minister by s. 3 which are prefaced or followed by the words ‘at his discretion’ or ‘as he shall think proper’ or ‘if he so thinks fit’ are powers which may be exercised only within the boundaries of the stated objects of the Act; they are powers which cast upon the Minister the duty of acting fairly and judicially in accordance with the principles of constitutional justice, and they do not give him an absolute or an unqualified or an arbitrary power to grant or refuse at his will.”
31. The Supreme Court has indicated the limits of seemingly unfettered executive discretion. Referring to the Minister’s powers under s. 3(11) of the Immigration Act 1999, Fennelly J. in T.C. v. The Minister for Justice [2005] 4 IR 109, (Supreme Court) stated at para. 26:
“26. On its face, this provision confers a broad discretion, to be exercised in accordance with general principles of law, interpreted in the light of the Constitution and in accordance with fair procedures. Otherwise, the respondent is at large.”
Although the statutory discretion in s. 18(4) is not accompanied by criteria for its exercise and appears on its face to be absolute, Mallak v. Minister for Justice, Equality and Law Reform [2012] IESC 59 (at paras. 43–45) reiterates the well-established principle that even seemingly absolute discretions are subject to review by the courts.
32. In view of the decision in East Donegal (supra) I am required to identify the legislative intention in order to understand the nature of the discretion conferred by the Oireachtas by s.18(4). In Howard v. Commissioners of Public Works [1994]1 I.R.101, at 501, Blayney J. in the Supreme Court outlined how a court should approach the task of identifying legislative intention. He adopted the following passage from a leading text on statutory interpretation as representing the law in Ireland:-

“The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the lawgiver. ‘The tribunal that has to construe an Act of a legislature, or indeed any other document, has to determine the intention as expressed by the words used.
And in order to understand these words it is natural to enquire what is the subject matter with respect to which they are used and the object in view.’ [per Lord Blackburn in Direct United States Cable Co. v. Anglo-American Telegraph Co. (1877) 2 App. Cas. 394].”

Craies on Statute Law (1971) (7th Ed.) at page 65.

This rule expressed in very similar terms in Maxwell on The Interpretation of Statutes (12th ed., 1976) at p. 28:—

“The rule of construction is ‘to intend the Legislature to have meant what they have actually expressed.’ [per Parke J. in R. v. Banbury (Inhabitants) (1834) 1 Ad. & El. 136 at p. 142] The object of all interpretation is to discover the intention of Parliament, ‘but the intention of Parliament must be deduced from the language used,’ [per Lord Parker C.J. in Capper v. Baldwin [1965] 2 Q.B. 53, at p. 61] for ‘it is well accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law.’ [per Lord Morris of Borth-y-Gest in Davies Jenkins & Co. Ltd. v. Davies [1967] 2 WLR 1139 at p. 1156].” [Emphasis added]

33. In approaching the task of understanding the nature and extent of the discretion in s. 18(4) of this statute, I am guided by these decisions of the Supreme Court which direct me to understand the seemingly unfettered discretion in s.18(4) by enquiring into and considering the object of the provision (per Blackburn L.J. in Direct United States Cable Co. as approved by Blayney J. in Howard (supra)) and by the more general proposition that I should identify the legislative intention by reference to the words of the text adopted by the Oireachtas. Speculation as to legislative intention not based on the words in question is impermissible.
34. I am aided in this task by the decision of Cooke J. in Hamza v. The Minister for Justice, Equality and Law Reform [2010] IEHC 427 where he considered the legislative purpose of s.18 of the Refugee Act 1996. (By way of background to that decision, the European Union adopted Council Directive 2003/86 on the Right to Family Reunification from which Ireland exercised an ‘opt out’ though the learned judge decided that s. 18 of the Refugee Act should be construed harmoniously with the Directive insofar as possible). He said:

“Secondly, it appears reasonable to assume that that s. 18 has been incorporated into the Act in the interests of facilitating the reception of refugees and ensuring their personal wellbeing while in the State. The legislation is not enacted in discharge of any binding obligation of international law because family reunification, as such, is not provided for in the Geneva Convention of 1951, or the 1967 Protocol and Ireland has not opted into the European Union legislation in this area . . .
The UNHCR, however, has, in various Instruments, over many years, encouraged the Contracting States to recognise and respect the ‘essential right’ of refugee families to unity and has encouraged them to facilitate its achievement (see, for example, the ‘UNHCR Resettlement Handbook’, (Geneva, November 2004); the ‘UNHCR Guidelines on Reunification of Refugee Families 1983’ and the ‘Conclusions of the UNHCR Executive Committee on Family Reunification’ of 21st October, 1981).

The rationale of family reunification as an objective in this area is well expressed in Recital (4) to the Council Directive:

‘Family reunification is a necessary way of making family life possible. It helps to create socio-cultural stability facilitating the integration of Third Country nationals in the Member State, which also serves to promote economic and social cohesion, a fundamental Community objective stated in the Treaty’.
Notwithstanding the non-binding nature of these sources, it is desirable in the view of the court, that the provisions of s. 18 should be construed and applied so far as statutory interpretation permits in a manner which is consistent with these policies and with the consensus apparent among the Member States of the Union in the objectives of the Council Directive.”

35. I agree with the findings of Cooke J. that s.18 was enacted in the interests of facilitating the reception of refugees and ensuring their personal wellbeing while in the State.
36. Section 18(4) is not addressed to all refugees. Family reunification under s.18(4) is only available where dependency or disability is established. It is not available under the legislative scheme for family members who are not dependents but are simply desirous of being in Ireland with their relative. In my view, this difference is highly significant and it expresses the true purpose of s. 18(4).

37. To understand the nature of the Minister’s discretion one must seek to understand why dependents might be admitted under s. 18(4) but not non-dependents. (Of course, there is nothing to prevent non-dependents from applying to enter and remain in the State should they wish to join their family member who is a refugee. They would be treated as ordinary entry applicants seeking visas and would not have access to the special regime which applies to refugees and their admitted family members. Admitted family members of refugees are entitled to all the rights and privileges of a refugee, including a right to work, social welfare on a par with a citizen etc.)

38. Where a refugee has dependents living outside the State, it may be impossible to discharge the moral obligations associated with such relationships and therefore it may be necessary to admit those dependents to the State so that the refugee can discharge his or her responsibilities. In my view this is the reason the statute facilitates the admission of dependent relatives but not non dependent relatives. For example, a refugee in Ireland might have an elderly healthy widowed mother living in a third country where there are no surviving relatives. She might have enough money to survive in the third country and thus not need financial assistance there. The mother may be said to be dependent on her son for her happiness and security in her old age and need to live with him to avoid isolation and the obvious disadvantages faced by older people who have no family support. It might be said that in her advanced years the mother-son relationship is the most important circumstance in her life. In other words a relationship of dependency (not related to money) could readily be claimed. If one adds into this scenario the fact that the son is living on social welfare and that the mother will need financial support from the State on arrival, the discretion given to the Minister comes into sharper focus. Did the Oireachtas intend that the mother could be excluded because the son cannot afford to support her? Another example helps to illustrate the point. A refugee might have an orphaned younger sibling with no surviving family at origin. Emotional dependency could hardly be in doubt. Could the Oireachtas have intended to give the Minister the power to refuse entry for the child because the refugee lives on social welfare and because the child will need free education, health care and social welfare support? In my view this was not intended.

39. The Oireachtas has decided that certain dependent relatives of refugees can come to Ireland and in my view this was to enable the refugee to fulfil moral obligations which could not be achieved without the physical presence in the State of the persons in question. This explains the difference in treatment between dependent and non dependent family members. In the first example given, the mother should be permitted to enter and remain. If the same mother is only in need of financial support but does not need the society of her son in Ireland, it is hard to see how a case for admission under s.18(4) could be made out.

40. In my view s.18(4) is a recognition that some family relationships require personal proximity. To grant a person asylum but to refuse the family access required to meet moral obligations would be to fail to achieve the object of “facilitating the reception of refugees and ensuring their personal wellbeing while in the State” (the legislative purpose of s.18 per Cooke J. in Hamza).

41. In view of these comments it seems to me that the central and often exclusive focus placed on financial dependency in family reunification decisions is misplaced. After all, if the externally located family member only needs money, what would be the point of allowing such person to come to Ireland? Having said that, giving financial support to family members at origin is often an expression of the relationship of dependency which exists and it is hard to imagine a case where the giving of financial assistance will not be a highly relevant factor in establishing dependency but it is not necessary that financial assistance is given in order for dependency to exist.

42. The Oireachtas has (by enacting s. 18 of the Refugee Act 1996) acknowledged the benefit of facilitating family reunification for refugees where dependency is established. I cannot imagine that the legislators intended that such advantages would be available only for those lucky few refugees who have sufficient resources to support not only themselves but also their dependents in Ireland. It is inconceivable that the legislature was not aware that genuine refugees almost invariably arrive in Ireland penniless and with numerous disadvantages. Refugees are frequently poorly educated, suffering from the trauma of their persecution, unable to speak the local language and are generally ill-equipped to adjust to the social, cultural and economic life of the host state. How could such a person support a dependent in Ireland? In these circumstances it would make no sense to give the Minister the power to refuse family reunification because the dependents will need social welfare support, at least in the short term. (Recalling that two members of the applicant’s family were killed 6 months after the initial application was made, the facts of this case illustrate that there are circumstances where the need for family reunification is extremely urgent and cannot be postponed until the refugee becomes self sufficient). In my view the use of the discretionary power to exclude only those dependents who will need state assistance is an arbitrary use of power. Such a result does not accord with the principles of constitutional justice because it is manifestly unfair to accommodate those who need to be with their refugee relative in Ireland but to shut the door on those who equally need to be with their refugee relative just because they are poor and the refugee is on welfare support. This is the type of unfair arbitrary and discriminatory result arising from the exercise of statutory executive discretion precluded by the law as announced by the Supreme Court in Mallak and East Donegal and TC (see paras. 30 -31 above).

44. The purpose of s. 18(4) was to facilitate family reunification in Ireland where the sponsor proves the existence of relationships of dependency requiring the physical proximity of the family. Thus, when exercising discretion to permit or refuse family reunification, that discretion is governed by the legislative purpose of the sub-section and its exercise must not frustrate that purpose (save, perhaps, for grave reasons which are more pressing than the requirements of family reunification.) It should be recalled that the State could not refuse refugee status because the refugee needs social welfare. Once the State grants refugee status, it extends the support and protection of the State to the victim of persecution. In my view, by virtue of s. 18 it extends the same support to the refugee’s proven dependents without reference to whether further cost to the State is thereby entailed. Self evidently, if the State is entitled to rely on the likelihood of the need for social welfare support to refuse family reunification applications, then the vast majority of such applications will be refused and the legislative intent will be avoided.

45. For these reasons I accept that the Minister may not refuse entry to the State to qualifying dependent family members of a declared refugee because of the likelihood that such persons will be dependent on the State for material support.
Failure to consider Constitutional Rights
47. The applicant argues that the respondent completely failed to consider the constitutional family rights of the applicant. In this regard, it is argued that the decision to refuse permission to enter and reside is one which “engages” the applicant’s rights under Article 41 of the Irish Constitution. The family members have been found to be dependent/disabled members of the sponsor refugee’s extended family.

48. The applicant commences this argument by submitting that the High Court has held that decisions of this kind are capable of engaging the provisions of Article 8 of the European Convention on Human Rights – see A.M.S. (Somalia) v. The Minister for Justice and Equality [2012] IEHC 72 [3.1] where the learned judge said:

“3.1 It matters not whether Article 41 of the Constitution or Article 8 of the European Convention on Human Rights is engaged. As Cooke J. in Isfof v. Minister for Justice, Equality and Law Reform (No. 2) [2010] IEHC 457:-

‘In the judgment of the Court no material difference exists between the evaluation of proportionality as regards the interference with ‘qualified rights’ (as in the present case) and ‘absolute rights’ (as in the case of Meadows). If constitutional rights are in issue (whether absolute or qualified) it is the function and duty of the High Court to vindicate them. The same can be said for rights entitled to protection under the European Convention of Human Rights and the need for the High Court, in compliance with Article 13 of the Convention, to provide an effective remedy for that protection’.

3.2 In this case, the respondents accept that Article 8 of the European Convention has been engaged.”
49. The applicant submits that on the authority of the decision in O’Leary v. The Minister for Justice, Equality and Law Reform [2012] IEHC 80, the applicant’s rights under Article 41 are engaged by his application and efforts to reunite with extended family members. In that case, Cooke J. held, in the context of non-national parents of adult children, that there had been an inadequate consideration given to the proportionate balancing of the right of a State in maintaining the integrity of the immigration laws as against the entitlement of the applicants to invoke the protection of their family interests under Article 41 of the Constitution.
50. In response to these constitutional law arguments, the respondent relies on the decision of Cross J. in the first judicial review between the parties in these proceedings where he remarked that the constitutional protection of the family is confined to married persons and children and that “this has been established since the State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 and has been repeated in a large number of cases since then, including cases of very recent vintage”.

51. The respondent says that if rights under Article 41 of the Constitution arise, and the respondent submits that they do not, then those rights are not absolute and may be outweighed by the common good. In this regard, reference is made to the decision of Costello J. in Pok Sun Shum v. Ireland [1986] ILRM 593, and the decision in Osheku v. Ireland [1986] I.R. 773, where Gannon J. held that rights enjoyed by a citizen arising from marriage or family with respect to choice of residence are not absolute.

52. In response to the argument that there was no consideration whatsoever of constitutional rights – an allegation which is borne out by the facts – the respondent says that a consideration of the application under Article 8 of the Convention was equivalent to a lawful consideration under Article 41 of the Constitution and the fact that Article 41 is not referred to is not significant. The respondent submits that the co-extensive nature of Article 41 and Article 8 was expressly recognised by Cross J. in A.M.S., Cooke J. in Isof and Hogan J. in R.X. v. Minister for Justice, Equality and Law Reform [2010] IEHC 446.

53. I note what Hogan J. says in respect of the crossover between provisions of the European Convention on Human Rights and the Constitution. He said in R.X.:

“32. I would pause here to add that the references in asylum and immigration case law to Article 8 ECHR have such a commonplace, that it is perhaps easy to overlook the fact that even in this area, the ECHR merely supplements or enhances the role of the Constitution. Such is made clear by the Long Title to the European Convention on Human Rights Act 2003, but in any event, the Supreme Court has confirmed that where there is an overlap between constitutional rights and the rights deriving from the Convention, it is the former which, generally speaking at least, must be considered first: see e.g. Carmody v. Minister for Justice, Equality and Law Reform [2009] IESC 71. The Convention comes into play only where the Constitution does not provide an adequate remedy in its own right.
33. Certainly in cases involving questions of the constitutionality of a statute or common law rule, s. 5(1) of the European Convention of Human Rights Act 2003, makes it clear that the Convention can only come into play only where it has been established that the Constitution does not provide an adequate remedy in its own right, a point which, in any event, is put beyond doubt by Carmody. But it seems to me that this principle must also apply by analogy where the issue concerns the application of a fundamental right and where the right in question is protected by both the Constitution and the Convention. As Murray C.J. observed in Carmody:

‘It hardly needs to be said that the provisions of the Act of 2003 cannot compromise in any way the interpretation or application of the Constitution, a principle which is acknowledged in the long title to the Act which states that the effect of the Act is ‘subject to the Constitution’.”
With respect to this argument, the applicant does not argue that had the relevant constitutional rights been considered, a different outcome would have been achieved. I am not of the view that the failure of the Minister to mention constitutional rights in his assessment of the claim is a sustainable ground of challenge. The State is entitled to balance family rights against State rights whether the source of the right is the Convention or the Constitution. In accordance with the decisions in Carmody and R.X., the constitutional rights should have been considered first but the applicant has not established any injustice requiring remedy which has resulted from this failure. No stronger rights have been argued to exist under the Constitution and thus the failure to expressly weigh the competing rights by reference to Article 41 thereof was harmless error. I do not think it is necessary for me to decide whether a refugee seeking family reunification under section 18(4) is asserting or is entitled to the protections of Constitutional rights under Article 41 or any other provision of the Constitution. I accept of course that the refugee has a statutory right to seek family reunification and any decision on such application must not exceed the statutory scheme or offend the public law rules on decision making.
Inadequate Proportionality Assessment
54. The next argument advanced by the applicant is that no lawful proportionality exercise was undertaken.

55. It appears that two main reasons were stated for the refusal. The first is associated with the requirements of the lawful operation of the immigration system of the State. There was very little discussion of this reason in the case. It need hardly be said that the State is entitled to refuse entry to foreign nationals in accordance with immigration law and policy. I am not satisfied that when assessing a family reunification request under s. 18(4) which involves balancing family rights and state rights, a statement to the effect that family reunification is refused because the State is entitled to say ‘no’ is either a proper reason or an adequate proportionality exercise.

56. The second reason given for the refusal is based upon the economic well-being of the country, given the current economic circumstances in Ireland and the likelihood that the subjects of the application would become a burden on the State. (A third reason relates to the state of the applicant’s mother’s health and the implication that she will be reliant on the health system. This third reason is effectively a particularisation of the second economic well-being reason).

57. The State’s interests are clearly set out in the assessment of the application. It is difficult to see in what way the real interests and particular circumstances of the sponsor refugee have been weighed, must less identified. In fairly bald terms, the Minister states:

“Having weighed and considered the facts of this case, it is not accepted that any interference with the applicant’s right to family life will have consequences of such gravity as to constitute a violation of Article 8.”
58. The Minister then proceeds to describe the circumstances of the individual members of the extended family. Any balancing of rights and interests in a context such as this must identify the circumstances of the person asserting them and in this case the rights to be balanced are those of the sponsor refugee and those of the State.
59. The most important circumstance in an application for family reunification under s. 18(4) is that the person seeking permission for family members to enter the State is a refugee. The exercise to be undertaken when a declared refugee seeks to obtain family reunification in accordance with s. 18 of the Act is not the same as a standard visa application for someone who wishes to join a family member in Ireland, not being a refuge because a refugee has no real choice of residence and cannot live with his family in his country of origin. It may be the case that the only way the applicant refugee can fulfil moral obligations to his dependents is for them to be in Ireland. It seems to me that these realities ought to have been carefully weighed against the lawful State interests. Such balancing of rights as took place identified the State’s right to avoid the burden of supporting the dependents but as I have said earlier in this decision, that was unlawful. On that basis alone, no lawful proportionality assessment took place.

60. No attempt was made to evaluate for how long the family might need assistance. In addition, I accept as correct the argument, often overlooked in the balancing exercise, that in order for a proper proportionality exercise to be carried out, the decision maker must attempt to impair an identified right as little as possible. As Denham J. said in Meadows v. Minister for Justice [2009] IESC 3, “When a decision-maker makes a decision which affects rights then, on reviewing the reasonableness of the decision: (a) the means must be rationally connected to the objective of the legislation and not arbitrary, unfair or based on irrational considerations; (b) the rights of the person must be impaired as little as possible; and (c) the effect on rights should be proportional to the objective.” It is not the function of this court to suggest what methodologies might be applicable to achieve that end. It is possible that having attempted to restrict the right as little as possible, the result is that absolute restriction is unavoidable. That such might be the result is no excuse for failing to conduct this leg of a proportionality exercise.

61. Facts of central importance to this application for family reunification have not been identified in the Minister’s assessment. It is clear from the application that at all times, the applicant, his wife, his daughter, his mother and his siblings lived together as a family unit. In addition, it was clear that following the outbreak of violence in Somalia that they remained living together in a refuge camp in Mogadishu and that the family (excluding the applicant) fled to Ethiopia together and again remained a unified family unit when they took up residence in Ethiopia. It is apparent from the application that the applicant was the male head of household for this family unit. He was, it would appear, the father figure in his own marital family and in the family of his birth. These facts were advanced in support of the claim that dependency existed. It is a striking feature of the assessment that theses circumstances are given no apparent weight and the only manifestation of dependency considered by the respondent was the transfer of money. No lawful consideration of dependency can be said to have taken place where all of the manifestations of dependency are not considered. This frailty in the assessment cannot be said to be cured by the fact that the Minister found that financial dependency existed. In effect, the Minister came to exercise his discretion in circumstances where the only dependency he accepted was of the financial variety to the exclusion of any of the other important aspects of dependency which were advanced by the applicant and his solicitor. These failures indicate the absence of consideration of all the relevant facts and therefore the absence of a lawful proportionality assessment.

62. I have suggested some of the special features of the life of a refugee which ought to have been weighed against legitimate State interests. These factors are not exhaustive and each case will require a careful assessment of the actual circumstances of the sponsor refugee and how he or she can fulfil duties to dependents. It will always be necessary to consider the nature of the family relationships because the mere existence of kinship is not enough to establish dependency. This, I think, must be the reason the Oireachtas established, by section 18(2), the Office of the Refugee Applications Commissioner as the investigator of the family relationships.

63. I uphold the complaint as to the inadequacy of the proportionality assessment
The Razgar Questions
64. The first two paragraphs of the Minister’s consideration of the application under Article 8 of the European Convention are in the following terms:

““Everyone has the right to respect for his private and family life, his home and his correspondence.” If the Minister refuses the applicant’s application for family reunification in respect of [the family members], this decision would engage the applicant’s right to respect for family life under Article 8(1) of the ECHR.
Family Life
Having weighed and considered the facts of the case, it is not accepted that any interference with the applicant’s right to family life will have consequences of such gravity as to constitute a violation of Article 8. As a result, the decision to refuse the application for family reunification herein does not constitute a breach of the right to respect for family life under Article 8 of the ECHR.”

65. These paragraphs do not reflect a lawful approach to the assessment ECHR rights. It is difficult to comprehend, in the absence of stated reasons, the conclusion that any interference with the applicant’s right to family life would not have consequences of such gravity as to constitute a violation of Article 8. The interference could only be assessed if the nature of the dependency had been fully described. As indicated, the only form of dependency assessed was financial dependency. As the application for reunification argued, the family, involving what might be regarded as two nuclear families with deep bonds had always lived together. The interference with those family bonds caused by a negative decision was required to be identified and assessed. This did not happen.
66. In any event, the phrase “consequences of such gravity” is derived from the jurisprudence of the European Court of Human Rights and has been explained by the Court of Appeal in England and Wales. Contrary to common usage in administrative decisions, the phrase does not mean that there must be grave consequences arising from a negative decision before Convention rights are engaged. Decision makers are on the wrong path if they are in search of ‘grave consequences’ of a negative decision. In V.W. (Uganda) v. The Secretary of State for the Home Department [2009] EWCA Civ 5, Sedley L.J. pointed out that:

“22. As this court made clear in AG (Eritrea) [2007] EWCA Civ 801, ss. 26-28, the phrase ‘consequences of such gravity’ in question (2) posits no specially high threshold for art. 8(1). It simply reflects the fact that more than a technical or inconsequential interference with one of the protected rights is needed if art. 8(1) is to be engaged.” [emphasis added]
The language used in the assessment quoted above indicates that the author was attempting to follow the suggested approach set out by Bingham L.J. in R. (Razgar) v Secretary of State for the Home Department [2004] ULHL 27. The sequence of questions he advised in approaching an Article 8 assessment is as follows:
“(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?

(3) If so, is such interference in accordance with the law?

(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?

(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?”

67. As can be seen from the passage quoted from the decision in suit, the author commences the assessment by indicating that a negative decision by the Minister would engage the applicant’s rights. He then proceeds to ask whether any interference with family rights might have consequences of gravity.
68. Such an approach to an Article 8 assessment is not in accordance with law. The analysis should start by asking whether a negative decision on family reunification would interfere with article 8 rights and then ask whether that interference would have consequences of such gravity as to potentially engage Article 8 rights, bearing in mind the proper meaning of ‘consequences of such gravity’. Following that analysis, the decision maker may decide that the interference is justified notwithstanding the engagement of rights. I should also note that in order for the interference caused by the negative decision to be justified, it must, in accordance with Lord Bingham’s fourth question, be necessary in the interests of the economic well-being of the country, inter alia. No part of the Article 8 assessment in this case establishes that it is necessary to refuse the application for economic reasons. If, for example, the state were overwhelmed by applications, one could see how a decision maker might say that refusal is economically necessary. For all of these reasons I uphold the complaint that no lawful proportionality assessment was conducted.

70. I grant an order of certiorari in respect the decision in suit.

A.B.M. and B.A. -v- Minsiter for Justice and Equality

[2017] IECA 280 (27 October 2017)

Judgment
Title:
A.B.M. and B.A. -v- Minsiter for Justice and Equality
Neutral Citation:
[2017] IECA 280
Court of Appeal Record Number:
2017 31
High Court Record Number:
2015 449 JR
Date of Delivery:
27/10/2017
Court:
Court of Appeal
Composition of Court:
Finlay Geoghegan J., Irvine J., Hogan J.
Judgment by:
Finlay Geoghegan J.
Status:
Approved
Result:
Allow Appeal

THE COURT OF APPEAL
Neutral Citation Number: [2017] IECA 280
[2017 No. 31]

Finlay Geoghegan J.
Irvine J.
Hogan J.
BETWEEN
A.B.M. and B.A.
APPLICANTS/
APPELLANTS

– AND –
MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT/

JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 27th day of October 2017
1. This is an appeal from the order of the High Court (Humphreys J.) made on 16th December, 2016 refusing the application for an order of certiorari of a decision of the Minister of 13th July, 2015 which refused to revoke the deportation order made in respect of A.B.M. The order was made for the reasons set out in a written judgment of 29th July, 2016: see A.B.M & B.A. v. Minister for Justice and Equality [2016] IEHC 469.

2. The High Court subsequently certified the following points of law of exceptional public importance:

(i) Does an Irish citizen possess the right pursuant to Article 41 of the Constitution to have his/her non-national spouse reside in the State?
(ii) If the above exists, whether such a right of residence must be the starting point for any consideration by the respondent Minister pursuant to s. 3(11) of the Immigration Act 1999 (as amended).

(iii) Whether the respondent is entitled to consider the insurmountable obstacles criterion contained in the case law of the European Court of Human Rights when considering representations made in respect of the spouse of an Irish citizen pursuant to s. 3(11) of the Immigration Act 1999 (as amended).

3. This appeal was heard at the same time as the appeal in Gorry v. The Minister for Justice and Equality in which judgment is also being delivered today. In my judgment in Gorry I have set out in greater detail the background facts to the application for certiorari in these proceedings and considered the judgment of the High Court judge. This judgment should be read in conjunction with the judgment being delivered today in Gorry.
4. It is sufficient for the purposes of this judgment to state briefly the essential facts. The second named applicant, B.A., who was born in Nigeria, became an Irish citizen in 2013. She had originally come to Ireland in September, 2000, whereupon she applied for asylum. That application was refused, but she was permitted to remain in the jurisdiction and she ultimately became an Irish citizen in 2013.

5. The first applicant, Mr. A.B.M. applied for asylum in Ireland in September, 2006 claiming he had recently entered Ireland having left Nigeria in 1999 for Italy via Togo. That and all further applications were refused and a deportation order made in respect of him on 18th June, 2008. That was not challenged. Nevertheless, he subsequently failed to present himself to Garda National Immigration Bureau in July, 2008 and was classed as an evader. The applicants, however, were married in Ireland in a civil ceremony on 9th February, 2015. For the purposes of the application to the Minister under review (and in the judicial review proceedings) they were accepted as a couple, one of whom was an Irish citizen, lawfully married to each other and hence a family within the meaning of Art. 41 of the Constitution.

6. The decision of the Minister and the assessment made on his behalf is set out in the judgment in Gorry. It is sufficient for present purposes to say that the assessment was first made by reference to Art. 8 of the European Convention of Human Rights (ECHR) and then in relation to “marriage rights under the Constitution”. In considering the latter the decision records that B.A. is an Irish citizen and that A.B.M. married her in February, 2015 and that it was accepted that the couple constitute a family within the meaning of Article 41 of the Constitution. The decision then states:

“With regard to the rights of a non-national married to an Irish national or a person entitled to reside in the State, it is accepted that family rights under Article 41 of the Constitution arise. However, these rights are not absolute and may be restricted. As found by the courts, there appears to be no authority which supports the proposition that an Irish citizen, or a person entitled to reside in the State, may have a right, under Art. 41 of the Constitution to reside with his or her spouse in this jurisdiction. Reference is made to the consideration of the position of the couple, as well as the rights of the State under Art. 8 [ECHR] in the consideration above and the conclusions reached therein.
All factors relating to the position and rights of the family have been considered, and these have been considered against the rights of the State. The jurisprudence of the European Court of Human Rights has established that a State has a right under international law to control the entry of non-nationals into its territory, subject always to its Treaty obligations. Consideration is also given to the impact of granting permission to remain to [A.B.M.] on the health and welfare systems of the State and how such a decision may lead to similar decisions in other cases. In weighing these rights, it is submitted that if the Minister decides to affirm the deportation order in respect of [A.B.M.], there is no less restrictive process available which would achieve the legitimate aim of the State to safeguard the economic wellbeing of the State, and to maintain control of its own borders and operate a regulated system for control, processing and monitoring of non-national persons in the State. These therefore exist as substantial reasons associated with the common good which requires the deportation of [A.B.M.].”

7. The conclusion and recommendation to the Minister was accordingly to affirm the deportation order. That was the decision made.
8. Leave to apply for judicial review was granted on 27th July, 2015 and on 4th August, 2015 an application for an injunction restraining deportation rejected by the High Court. A.B.M. was deported in September 2015. The judicial review application was subsequently heard by the High Court.

9. In his judgment Humphreys J. declined to follow two conclusions in Gorry. First the conclusion that a married couple comprising an Irish citizen non-national where they seek to live in Ireland “have a prima facie right to do so by virtue of Art. 41 of the Constitution” and that such position is the starting part of any consideration by the Minister on an application that the non-national be permitted to reside in Ireland. Secondly that the “insurmountable obstacles” test was not the appropriate test in a consideration in relation to Article 8 ECHR. Humphreys J. disagreed with both conclusions and the essence of his overall conclusions were:

(i.) there is no such prima facie right (para. 35);
(ii.) the married couple, one of whom is a citizen, should receive prima facie acknowledgement and consideration of their status under Art. 41 of the Constitution (para. 35);

(iii.) notwithstanding that Art. 41 uses “somewhat more emphatic language than Art. 8 of the ECHR” that “there is no logical reason why there should be a significantly different position under Art. 41 of the Constitution”.

(iv.) There was no invalidity to the Minister’s approach to the consideration of constitutional rights (paras. 37 – 47);

(v.) In a consideration in relation to Art. 8 the “insurmountable obstacles” test is the relevant test but not “in the sense of a determinative bar which an applicant must meet or fail to meet”. Rather it is “just one of a basket of criteria questions that can be asked as to the overall circumstances”.

Appeal
10. The appellants’ submission in relation to the issues raised by the three points of law certified by the trial judge are in substance in accordance with the conclusions on the issues in the judgment delivered by the High Court (Mac Eochaidh J.) in Gorry & Anor. v. Minister for Justice and Equality [2014] IEHC 29. That judgment was delivered on 30th January, 2014. The legal conclusions therein were followed by the High Court (Eagar J.) on 19th November, 2015 in Ford & Anor. v. Minister for Justice and Equality [2015] IEHC 720.
11. In addition to the submissions made on the substantive questions of law the appellants submitted that when the trial judge came to decide this judicial review application that, in accordance with the principles set out in the well-known authorities of Irish Trust Bank Limited v. Central Bank of Ireland [1976 – 1977] ILRM 50 and Re Worldport Limited [2005] IEHC 189 amongst others, the trial judge ought to have followed the decisions made in Gorry and Ford on the relevant legal issues unless in accordance with the principles set out in Irish Trust Bank and Worldport there was a basis for not doing so.

12. In Kadri v. Governor of Wheatfield Prison [2012] IESC 27, [2012] 2 ILRM 392 Clarke J. referred to Irish Trust Bank and Worldport with approval and stressed the importance of High Court judges generally following earlier High Court decisions. As these observations from Clarke J. in Kadri make clear, the doctrine of precedent is an important part of judicial discipline and ensuring consistency for litigants in a common law system such as ours. While, as Clarke J. recognised, there are, of course, limits to the doctrine of precedent, it is nonetheless important that High Court judges should, in general, follow earlier decisions of that Court unless there are strong reasons in accordance with the jurisprudence referred to by him in Kadri for not doing so.

13. As this appeal was heard at the same time as the appeals in Gorry and having regard to the conclusions reached on the substantive issues, it is, however, now unnecessary for me to determine the appeal by reference to this separate ground of appeal.
Substantive issues
14. For the reasons set out in the Gorry judgments which Hogan J and I have delivered to-day the trial judge was correct in his conclusion that an Irish citizen lawfully married to a non-national does not have a constitutional right, whether termed a prima facie right or a right which is not absolute, to have his/her non-national spouse reside with him/her in Ireland. However, the rights which an Irish citizen such as B.A. and a family comprising a lawfully married couple such as A.B.M. and B.A. have pursuant to the Constitution and the obligations imposed on the Minister by the Constitution in considering an application such as at issue in this appeal are considerably more extensive than a mere “acknowledgement and consideration of their status under Art. 41 of the Constitution” as determined by the trial judge herein.

15. Furthermore for the reasons set out in the judgments in Gorry, the trial judge herein was in error in his conclusion that the rights of the applicants or the obligations imposed on the State pursuant to the Constitution and those imposed on the State pursuant to s. 3 of the European Court of Human Rights Act 2003 (“the 2003 Act”) having regard to Article 8 ECHR are not significantly different. As appears from the judgments delivered to-day in Gorry, for the reasons set out therein, the rights of the applicants and obligations imposed on the State where one spouse is an Irish citizen and the couple are lawfully married (and, hence, a family within the meaning of Article 41 of the Constitution) are of a different order to the rights imposed on the State when considering what is in substance an application for the non-national spouse to reside in Ireland pursuant to s. 3 of the 2003 Act having regard to Article 8 ECHR.

16. It also follows for the reasons set out in detail in the judgments in Gorry, that, contrary to the decision of the trial judge herein, the assessment by the Minister of the application having regard to the constitutional rights of the applicants was not in accordance with law.

17. The trial judge was, in my view, again for the reasons set out in Gorry, correct in his approach to the application of the “insurmountable obstacles” test having regard to the case law of the European Court of Human Rights. Furthermore, I am in agreement with him that there was no error by the Minister in the consideration given pursuant to s. 3 of the 2003 Act having regard to Article 8 ECHR in the application of the insurmountable obstacles test in the assessment conducted on his behalf. As pointed out in my judgment in Gorry, the meaning of the test applied in the assessment in this application was consistent with the case law of the European Court of Human Rights.
Conclusion and Relief
18. It follows from my conclusions on the applicable legal principles set out in my judgment in Gorry that I do not consider that the consideration given by the Minister to the constitutional rights of the applicants was in accordance with law. It was not consistent with the obligations imposed on the State by the Constitution for the reasons set out in Gorry. Those obligations are of a different order to the obligations imposed on the Minister by s. 3 of the 2003 Act having regard to Art. 8 ECHR. It is clear from the assessment made that there was assimilation in the assessment of the two sets of obligations.

19. I have concluded that as the assessment made by the Minister of the application to revoke the deportation order was not in accordance with law having regard to the constitutional rights of the applicants, which was fundamental to the proper consideration of the application that they are entitled to an order of certiorari of the decision of the Minister refusing to revoke the deportation order of A.B.M.

20. However, I do not consider that the application which gave rise to the decision now to be quashed should be remitted to the Minister for a further decision. Events have moved on. At the time of the application to the Minister to revoke the deportation order there was in place a valid deportation order in the sense that it was a deportation order made by the Minister which had not been the subject of any legal challenge. For the reasons set out in Gorry there is no constitutionally protected right entitling A.B.M. to reside in Ireland as the spouse of an Irish citizen. It follows that his marriage to B.A. did not of itself alter the validity of the deportation order. A.B.M. was deported in September, 2015. Nothing in this decision should be considered as affecting the validity of the deportation effected. What it does affect is the entitlement of A.B.M. and B.A. to make a further application to the Minister for the revocation of the deportation order and for a visa to permit A.B.M. to enter Ireland and reside in Ireland with B.A., assuming, of course, that in the intervening period they remain lawfully married to each other. That application requires to be considered by the Minister in accordance with law as stated in this judgment and in the judgments delivered today in Gorry v. The Minister for Justice and Equality.

21. Accordingly, the Court will grant an order of certiorari of the decision of the Minister of 13th July, 2015. It will not make an order remitting the existing application to the Minister for further consideration. There will be an order that the applicants may now make a further application to the Minister for revocation of the deportation order made on 18th June, 2008 and for a visa for A.B.M. to enter and be in Ireland which will fall to be considered in accordance with law and on all current facts relating to the family comprised by the applicants and their child who was born after the decision of the Minister the subject of this appeal and the relevant State interests.

 

Rehman v The Minister for Justice and Equality

[2018] IEHC 779 (21 December 2018)

Judgment
Title:
Rehman v The Minister for Justice and Equality
Neutral Citation:
[2018] IEHC 779
High Court Record Number :
2017 No. 553 JR
Date of Delivery:
21/12/2018
Court:
High Court
Judgment by:
Keane J.
Status:
Approved
[2018] IEHC 779
THE HIGH COURT
JUDICIAL REVIEW
[2017 No. 553 JR]
BETWEEN
MOHAMMAD FAISAL UR REHMAN
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT
JUDGMENT of Mr Justice David Keane delivered on the 21st December 2018
Introduction
1. This is the judicial review of a decision by the Minister for Justice and Equality (‘the Minister’), dated 14 April 2017 (‘the decision’), under Regulation 25 of the European Communities (Free Movement of Persons) Regulations 2015 (‘the 2015 Regulations’), to uphold on review a first instance decision of 12 March 2016 to refuse the application of Mohammad Faisal Ur Rehman, a national of Pakistan, for a residence card as a permitted family member of his brother Naveed Ur Rahman, a British – and, hence, European Union – citizen, exercising free movement rights in the State.

2. The 2015 Regulations were made, in exercise of the powers conferred on the Minister by s. 3 of the European Communities Act 1972, to give effect to Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the rights of the citizens of the Union and their family members to move and reside freely within the territory of the Member States (‘the Citizens’ Rights Directive’). They came into operation on 1 February 2016.

3. In substance, the reason the Minister gave for the decision is that Mr Rehman failed to establish that he is a ‘permitted family member’ of Mr Rahman, within the meaning of that term under Regulations 2(1) and 3(6) of the 2015 Regulations (transposing the requirements of Article 3(2) of the Citizens’ Rights Directive concerning ‘other family members’), because he failed to establish that in the United Kingdom (as the country from which he had come), he was either: (a) a dependant of Mr Rahman, as a Union citizen; or (b) a member of the household of Mr Rahman, as a Union citizen.
Procedural history and grounds of challenge
4. The application is based on a statement of grounds dated 6 July 2017, supported by an affidavit of Mr Rehman sworn on the previous day.

5. By order made on 10 July 2017, O’Regan J granted Mr Rehman leave to seek the reliefs identified, on the grounds specified, in his statement of grounds. Principal among those reliefs is an order quashing the Minister’s decision.

6. Mr Rehman impugns that decision on the following four grounds. First, the Minister erred in law in construing the term ‘household of the Union citizen’ under the 2015 Regulations. Second, the Minister failed to provide adequate reasons for the decision.

Third, the decision was unreasonable or irrational because of the manner in which the Minister addressed the evidence constituted by certain utility bills furnished by Mr Rehman in support of his application. Fourth, the Minister’s decision was reached in breach of Mr Rehman’s entitlement to fair procedures and, in particular, the principle audi alteram partem in that the Minister’s view on the significance of the utility bills provided was not put to Mr Rehman for comment beforehand.

7. The Minister delivered a statement of opposition dated 6 October 2017. It is supported by an affidavit, sworn on 3 November 2017 by Stacy Morris, a higher executive officer of the EU Treaty Rights Review Unit in the Department of Justice and Equality.
Background
8. Mr Rehman has provided the following account of his immigration history.

9. He was born in Pakistan on 4 October 1972 and is a Pakistani citizen. His brother, Naveed Ur Rahman was born in Pakistan on 2 December 1974 and is a naturalised British citizen, having first entered the United Kingdom in 1999. Mr Rehman acknowledges that he first entered the UK from Pakistan in 1998 and claimed asylum there, before returning to Pakistan approximately three years later. Mr Rehman returned to the UK in 2008 and reactivated his asylum application in 2009. That application was ultimately refused at the conclusion of the appellate process in 2015. While present in the UK during that period, Mr Rehman was never legally entitled to work.

10. Mr Rehman asserts that, while in the UK between 2008 and 2015, he never held a bank account and was supported by his brother Mr Rahman, who provided him with bed and board in his family home, travel expenses and pocket money. As part of his application for a residence card, Mr Rehman indicated that the UK property concerned was owned by Mr Rahman and his wife and that proof of ownership would be forthcoming as soon as it was to hand, although that did not occur. Among the documents submitted in support of Mr Rehman’s application was an unsworn statement of Mr Rahman (described as a declaration), asserting that the property was held in his wife’s sole name, although he had purchased it jointly with her.

11. On or about 1 May 2015, Mr Rahman entered the State in the exercise of his free movement rights under EU law accompanied by Mr Rehman who entered the State unlawfully without a visa. The brothers now reside together as joint tenants in rented accommodation. Mr Rahman’s wife and three children remain resident in the UK. Mr Rahman immediately took up employment in the State and is now self-employed as the owner/operator of a fast food outlet under a franchise agreement. Mr Rehman asserts that Mr Rahman pays for their rent, food and utilities, as well as providing him with €70 per week as pocket money. Mr Rehman has opened a bank account in Ireland.

12. On 29 June 2015, Mr Rehman applied for a residence card as a ‘permitted family member’ of Mr Rahman under Regulation 7 of the European Communities (Free Movement of Persons Regulations) 2006 and 2008 (‘the 2006 Regulations’), then in force. By letter dated the 14th October 2015, the Irish Naturalisation and Immigration Service (‘the INIS’) acknowledged receipt of that application on behalf of the Minister and requested certain additional documentation including, under the heading ‘Evidence of relationship with the EU citizen’, the following:

‘For other family members

– Evidence of dependence on the EU citizen, including dependence prior to residing in the State OR evidence of membership of the EU citizen’s household prior to residing in the State….’
13. In addition, under the quite separate heading ‘Evidence of residence of applicant and EU citizen in the State’, the INIS directed:
‘If renting, copies of the following documents should be provided:

– Letter of Registration of Tenancy from the Private Residential Tenancies Board
– Utility bills for applicant and EU citizen’

14. On 9 March 2016, the Minister refused Mr Rehman’s application for a residence card on the ground that she was not satisfied that he was a permitted family member of an EU citizen, in material part because he had failed to submit satisfactory evidence of dependence on Mr Rahman, including dependence [upon him] prior to residing in the State. Although the 2015 Regulations had come into operation on 1 February 2016, Mr Rehman’s application was assessed in accordance with the transitional provisions of reg. 31(3) of those regulations which state in relevant part:
‘where, before the date on which these Regulations come into operation, a person produced evidence in accordance with Regulation 5(1) of the Regulations of 2006 and, by that date, the Minister has not established under that Regulation whether the person concerned is a permitted family member –

(a) that Regulations shall continue to apply for the purpose of establishing whether the person is a permitted family member under the Regulations of 2006….’
15. By letter dated the 4 April 2016, an entity styling itself ‘IKIC Legal Services and Commissioner for Oaths’ submitted an application for a review of the Minister’s decision on Mr Rehman’s behalf, on the stated grounds, amongst others, that he was both a dependant of Mr Rahman and a member of Mr Rahman’s household in the United Kingdom, as the country from which he had come. The letter stated, in material part:
‘Prior to residing in the State, both Applicant and EU citizen brother were residing in the United Kingdom at 33 Conway Street, Leeds, LS8 5JF [‘the Conway Street address’]. The said property was purchased by Mr Naveed and his wife, Mrs Fozia Ur Rahman but maintained by EU citizen, Mr Naveed. We shall furnish proof of ownership as soon as same is to hand.
We are instructed that Applicant was never allowed to work in the United Kingdom and Mr Naveed was his sole sponsor in the United Kingdom who provided Applicant with free accommodation, food, travel and other utilities including pocket money in the shape of cash, since Applicant never hold (sic) a bank account in the United Kingdom to meet his travel expenses.’

16. The copy documents enclosed with that letter in support of that aspect of Mr Rehman’s claim were:
(i) An ‘Overseas Pakistanis, National Identity Card’ issued to Mr Rehman by the Government of Pakistan, recording the Conway Street address as his present address and an address in Rawalpindi, Pakistan as his permanent one, together with a similar card issued to Mr Rahman in materially identical terms.
(ii) A document, described on its face variously as an affidavit and a statutory declaration, although it is more obviously the latter, made by Mr Rahman at the office of a firm of solicitors in Leeds, West Yorkshire, on 31 March 2015 (‘the UK statutory declaration’), in which Mr Rahman declared, in material part: (i) that he had been residing with Mr Rehman at the Conway Street address; (ii) that he had been supporting Mr Rehman in the United Kingdom; and (iii) that Mr Rehman was his dependent.

(iii) Three invoices from a company named SS Medical Services (UK) Ltd addressed to one ‘Naveed Urrehman’ at the Conway Street address, dated 20 May 2012, 3 September 2012 and 9 January 2013 in the aggregate amount of £1,560 for services provided to ‘our mutual client’ Mr Rehman.

(iv) Six telephone bills, covering each of the six months between November 2014 and April 2015, addressed to a ‘Mr NN Ur-Rehman’ at the Conway Street address.

(v) A ‘British Gas’ ‘annual electricity summary’, dated 23 November 2015, addressed to ‘Mr N Urrehman M Urrehman, [and] F Naheed’ at the Conway Street address.

(vi) A ‘Yorkshire Water’ water and sewerage bill, dated 1 April 2015, and addressed to ‘Mr Mohammed Faisal Ur Rehman’ at the Conway Street address.

(vii) A letter from a general practitioner’s medical surgery in Leeds, dated 25 November 2015, confirming that Mr Rehman and Mr Rahman, each of the Conway Street address, had been registered with that practice from 17 April 2008 and 5 March 2001, respectively, together with a medical report from 2008 and an appointment confirmation from 2015 directed to Mr Rehman at that address.

(viii) A letter from a member of Leeds City Council named Mohammed Rafique, dated 17 November 2015, stating that he has known Mr Rehman of the Conway Street address since 2008 when Mr Rehman arrived in Leeds, where he stayed with his brother Mr Rahman until he moved to Ireland. Councillor Rafique went on to state: ‘I believe Faisal has good business acumen and given the opportunity he would excel in any business or area of work.’

(ix) A document, described on its face as a declaration (although it is not a statutory declaration and appears to be merely a signed written statement), dated 1 April 2016, in which Mr Rehman states, in material part: that he arrived in the UK in 2008 as a visitor who was not allowed to work or engage in any kind of business there; that, while in the UK, he stayed with his brother Mr Rahman at the Conway Street address; and that Mr Rahman provided for all of his needs, including cash for pocket money, as he did not have a bank account there.

(x) A document of the same kind of the same date, in which Mr Rahman makes broadly similar statements while adding: ‘[The Conway Street] property was bought by my wife, Fozia Ur Rahman, and I but is in the sole name of my wife.’

17. On 26 April 2016, the INIS wrote to Mr Rehman’s ‘immigration consultants’ on the Minister’s behalf, acknowledging his application for a review of the decision to refuse him a residence card. The Minister’s letter pointed out that Mr Rehman would have to demonstrate that he was, in the country from which he had come, either (in material part) a dependent or member of the household of the Union citizen Mr Rahman, and that it was open to him to submit any additional supporting documentation he may wish to be considered for that purpose. The letter then continued by stating (in relevant part):
‘Therefore, in order for this office to process your client’s application further, please submit copies of the following documents by registered post to [the INIS]:
Evidence of relationship with the EU citizen, Naveed Ur-Rahman

– Evidence of Mr Faisal-Ur-Rehman’s dependence on the EU citizen, including dependence prior to residing in the State
– Evidence of Mr Faisal-Ur-Rehman’s membership of the EU citizen’s household prior to residing in the State

…’
(emphasis in original)

18. In view of one of the arguments advanced on Mr Rehman’s behalf, it is significant to note that it was separately and specifically in connection with his current residence in the State that the INIS suggested in that letter that, if he was renting accommodation, copies of ‘utility bills or other official correspondence’ in his name in respect of that property ‘should be provided’, in addition to a copy of the PRTB letter of registration of Mr Rehman’s tenancy there.
19. On 26 August 2016, the ‘immigration consultants’ acting for Mr Rehman wrote to the INIS enclosing copies of a number of money transfer forms to evidence seven money transfers from Mr Rahman in the UK to Mr Rehman in Pakistan between 20 February 2007 and 4 March 2008 in the aggregate amount of £3,110. On 25 January 2017, a firm of solicitors wrote to the INIS, enclosing various copy documents to evidence Mr Rehman’s dependence upon, and membership of the household of, Mr Rahman in the State and Mr Rahman’s economic activities in the State as a Union citizen.

20. On 14 April 2017, Ms Morris wrote to Mr Rehman on behalf of the Minister, notifying him that his application had not been successful on review, for reasons that included the following:

‘(i) a dependant of the EU Citizen
In respect of your dependence on the EU Citizen there is no evidence supplied to suggest that the EU Citizen was providing you with any funds in order to support yourself in the State. There is no evidence of payments being made from the EU citizen to yourself. In fact, the documentation provided in respect of the application shows that in your previous residence in the UK you were contributing to the payment of bills for the address as the utility bills provided for Yorkshire Water and British Gas are addressed to yourself.

In this regard I am satisfied that you failed to supply evidence to show that you were a dependant of the EU Citizen prior to entering the State.

(ii) a member of the household of the EU citizen

Prior to entering the State you have supplied some documentation to show that you were residing at [the Conway Street address]. In support of this you have supplied a number of documents including medical reports, a letter from your GP regarding your registration, and utility bills in respect of Yorkshire Water along with a British Gas bill for yourself. In respect of the EU citizen you have submitted a number of Virgin Media bills dated between November 2014 and April 2015, the British Gas bill is in joint names and also the letter from the GP names the EU Citizen as a patient.

In support of your application, you have submitted a number of documents in respect of both yourself and the EU citizen however, the majority of the documentation provided is in respect of you the applicant. There is no tenancy agreement or mortgage statement in respect of the property. Whilst it is noted that there are a number of documents provided in respect of the residence of yourself and the EU citizen in the UK, there is no evidence to suggest that the household was that of the EU Citizen and that you were a member of that household.

Having examined the documentation supplied I am satisfied that you have failed to provide sufficient documentation to show that you were a member of the household of the EU citizen prior to entering the State.’

21. On the same date, Ms Morris wrote separately to Mr Rehman to inform him that the Minister proposed to make a deportation order against him, pursuant to the power to do so conferred on the Minister under s. 3 of the Immigration Act 1999, as amended.
The law
22. Article 1 of the Citizens’ Rights Directive lays down, amongst other things, 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. Article 2 of the Citizens’ Rights Directive defines both a ‘Union citizen’ and the ‘family member’ of a Union citizen for the purposes of the exercise of those rights. Under Article 2(2), a ‘family member’ is defined as: (a) the spouse; (b) registered partner (in certain defined circumstances); (c) direct descendant under the age of 21 or a dependant of the Union citizen, spouse or partner (so defined); and (d) dependent direct relative in the ascending line of the Union citizen, spouse or partner (so defined). As Article 3(1) of the Citizens’ Rights Directive confirms, these are the persons who are the designated beneficiaries of the rights the exercise of which it conditions.

23. Article 3(2) states:

‘Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

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

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.’
24. Article 10 provides, in material part:
‘1. The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called “Residence card of a family member of a Union citizen” no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.
2. For the residence card to be issued, Member States shall require presentation of the following documents:

…

(e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen…;

…’
25. As has frequently been noted, Recital 6 in the preamble to the Citizens’ Rights Directive states:
‘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 the 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.’
26. The Citizens Rights Directive is now transposed in Ireland by the 2015 Regulations.
27. Under the heading ‘Interpretation’, Regulation 2(1) of the 2015 Regulations provides that:

‘”family member” means a qualifying family member or a permitted family member;
…

“permitted family member” means, in relation to a particular Union citizen, a person who is, under Regulation 3(6), a permitted family member of the Union citizen;

“qualifying family member” means, in relation to a particular Union citizen, a person who is, under Regulation 3(5), a qualifying member of the Union citizen

….’

28. Regulation 3 states, in material part:
‘(1) This paragraph applies to—

(a) Union citizens entering or remaining in the State in accordance with these Regulations, and
(b a family member of a Union citizen referred to in subparagraph (a) who—

(i) enters the State in the company of the Union citizen,
(ii) enters the State for the purpose of joining the Union citizen, or

(iii) becomes a family member while in the State and seeks to remain with the Union citizen in the State.

…
(5) For the purpose of these Regulations, a person is a qualifying family member of a particular Union citizen where—

(a) subparagraphs (a) and (b) of paragraph (1) apply, respectively, to the Union citizen and the person, and
(b) the person is—

(i) the Union citizens spouse or civil partner,
(ii) a direct descendant of the Union citizen, or of the Union citizens spouse or civil partner, and is—

(I) under the age of 21, or
(II) a dependent of the Union citizen, or of his or her spouse or civil partner, or

(iii) a dependent direct relative in the ascending line of the Union citizen, or of his or her spouse or civil partner.
(6) For the purposes of these Regulations, a person is a permitted family member of a particular Union citizen where—

(a) subparagraphs (a) and (b) of paragraph (1) apply, respectively, to the Union citizen and the person, and
(b) the Minister has, in accordance with Regulation 5, decided that the person should be treated as a permitted family member of the Union citizen for the purposes of these Regulations, which decision has not been revoked pursuant to Regulation 27.’

29. Regulation 5 states, in pertinent part:
‘(1) This paragraph applies to a person who—

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

(2) Where a Union citizen has entered or is residing in the State in accordance with these Regulations or is proposing to do so, a person to whom paragraph (1) applies may apply to the Minister for a decision that he or she be treated as a permitted family member for the purposes of these Regulations and shall, for the purposes of such an application, produce to the Minister—

(a) (i) where the applicant is a national of a Member State, a valid passport or national identity card, or
(ii) where the applicant is not a national of a Member State, a valid passport,

(b) evidence that he or she is a member of the family of the Union citizen,

and

(c) one of the following:
(i) documentary evidence from the relevant authority in the country of origin or country from which he or she has come, that he or she is a dependant, or a member of the household, of the Union citizen;
….
(3) Upon receipt of the evidence referred to in paragraph (2), and on being satisfied that the applicant is a person to whom paragraph (1) applies, the Minister shall cause to be carried out an extensive examination of the personal circumstances of the applicant in order to decide whether the applicant should be treated for the purposes of these Regulations as a permitted family member of the Union citizen concerned.

(4) For the purposes of his or her decision under paragraph (3), the Minister may require the applicant to produce such additional evidence as the Minister may reasonably require.

(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;
(b) where the applicant is a member of the household of the Union citizen concerned, the duration of the period during which he or she has been living within the household of the Union citizen;

…

(e) whether the relationship described in subparagraph (a), (b), (c) or (d), as the case may be, was brought about with the objective of obtaining permission to remain in the State or a Member State;
(f) the capacity of the Union citizen concerned to continue to support the applicant in the State in the event that the applicant is to be treated as a permitted family member under these Regulations.

(6) The Minister, following an examination under paragraph (3), shall—

(a) where he or she decides that an applicant should be treated as a permitted family member for the purposes of these Regulations, notify the applicant in writing of the decision, or
(b) where he or she decides that an applicant should not be treated as a permitted family member for the purposes of these Regulations, notify the applicant in writing of the decision and of the reasons for it.

….’
30. Regulation 7 provides:
‘7. (1) A family member who is not a national of a Member State-

(a) may, within 3 months of the relevant date, apply to the Minister for a residence card, and
(b) shall, where an application under paragraph (a) has not been made within the period specified in that paragraph, before the expiry of 4 months after the relevant date, apply to the Minister for a residence card.

(2) In paragraph (1), the “relevant date” means-

(a) in the case of a qualifying family member, the date on which he or she-
(i) entered the State as a qualifying family member, or
(ii) having already been in the State, became a qualifying family member,

and

(b) in the case of a permitted family member—
(i) the date on which he or she first entered the State as a permitted family member, or
(ii) where he or she was present in the State on the date on which the Minister decided that he or she should be treated as a permitted family member, that date.

(3) An application under paragraph (1) shall contain the particulars specified in Schedule 2 and shall be accompanied by such additional information requirements provided for in that Schedule as are applicable.
(4) The Minister shall cause to be issued a notice acknowledging receipt of an application under paragraph (1).

(5) The Minister shall, within 6 months of the date of receiving an application under paragraph (1)—

(a) where he or she is satisfied that it is appropriate to do so, issue a residence card containing the particulars set out in Schedule 3 to the family member concerned, or
(b) notify the family member concerned that his or her application has been refused, which notification—

(i) shall be accompanied by a statement of the grounds for the refusal, and
(ii) may be accompanied by a notification under Regulation 21(1) or 23(3), or both.

(6) An applicant under paragraph (1) may remain in the State pending a decision on the application.’
31. Regulation 25 states:
‘(1) A person who has, or who claims to have, an entitlement under these Regulations to enter or reside in the State may seek a review of any decision concerning such entitlement or claimed entitlement.
(2) An application for review under this Regulation shall be submitted to the Minister within 15 working days of the receipt by the person concerned of the decision and shall set out in writing the grounds for review and the particulars specified in Schedule 4.

(3) The Minister may, where he or she is satisfied that it is warranted in the particular circumstances, extend the period referred to in paragraph (2) within which a review must be submitted.

(4) A review under this Regulation of a decision under paragraph (1) shall be carried out by an officer of the Minister and who—

(a) shall be a person other than the person who made the decision, and
(b) shall be of a grade senior to the grade of the person who made the decision.

(5) The officer carrying out the review shall have regard to the information contained in the application and may make or cause to be made such enquiries as he or she considers appropriate and may—

(a) confirm the decision the subject of the review on the same or other grounds having regard to the information contained in the application for the review, or
(b) set aside the decision and substitute his or her determination for the decision.

(6) A person who makes an application under paragraph (1) for the review of a removal order may, at the same, make an application for the suspension of the enforcement of the order.’
(7) Where a person makes an application under paragraph (6), the removal of him or her from the State shall, unless the officer carrying out the review is of the view that the removal decision is based on imperative grounds of public security, be suspended until such time as that officer makes his or her decision under paragraph (5).

Analysis
i. an unduly narrow construction of the term ‘member of the household of the Union citizen’ ?
32. Mr Rehman argues that the Minister applied an improperly or artificially narrow conception of the term ‘ member of the household of the Union citizen ‘ for the purpose of Article 3(2) of the Citizens’ Rights Directive and, by extension, Regulation 5(1)(a) of the 2015 Regulations.

33. As a term of European Union law, that term must be interpreted according to the following principles summarised by the European Court of Justice (‘ECJ’) in Case 283/81 CILFIT [1982] ECR 3415

‘18. To begin with, it must be borne in mind that Community legislation is drafted in several languages and that the different language versions are all equally authentic. An interpretation of a provision of Community law thus involves a comparison of the different language versions.
19. It must also be borne in mind, even where the different language versions are entirely in accord with one another, that Community law uses terminology which is peculiar to it. Furthermore, it must be emphasized that legal concepts do not necessarily have the same meaning in Community law and in the law of the various Member States.

20. Finally, every provision of Community law must be placed in its context and interpreted in the light of the provisions of Community law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied.’

34. In KG (Sri Lanka) and AK (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 13, a decision of the Court of Appeal for England and Wales, the second of the two appellants, AK, was a national of Sri Lanka, born in 1981, who lived in the family home in Sri Lanka until 1991 with his parents, a brother, three sisters, his mother’s sister, the latter’s husband and their four daughters and two sons; a household of 15 persons. In 1991, the family was dispersed by the civil strife then endemic in that country. AK arrived in the United Kingdom in 2000, where his refugee status claim was refused. His appeal against that refusal was rejected in 2001, after which he remained in the UK unlawfully. He claimed residence rights as a family member of a daughter of his mother’s sister – hence, his cousin – who had left Sri Lanka in 1992 and successfully claimed asylum in France, becoming a French – hence, a Union – citizen, in 2000, before moving to the UK in the exercise of her free movement rights in 2005.
35. In a portion of the judgment in that case headed “Members of the household of the Union citizen “, the Court of Appeal (per Buxton LJ; Sedley and Hooper LJJ concurring) held (at paras. 77 and 78):

“77. There was some tendency in the argument before us to read this requirement as one of being members of the same household; or, as was said on behalf of AK, members of a communal household. That is not what [“the Citizens” Rights Directive] says, nor was that the condition in Regulation 1612/68, which requires [a family member – or “other family member” (“OFM”) – within the terms of Art. 10(2) of Regulation 1612/68] to have been, in relation to the Union citizen, under his roof, not under the same roof. It seems very likely that the assumption is that the household will indeed have been that of the Union citizen, that is, that he was in colloquial terms head of it, the relations were under his roof, and on that basis he can reasonably wish to be accompanied by the members of it when he leaves for another country. If, on the other hand, the liberty extends to what might be called collateral members of the same household, then it is very difficult to see why for instance cousins with a close relationship but not actually living together are excluded; or why, to give a concrete example, it should be crucial to the case of AK that he was living in the same house, rather than the same street, as his cousin.
78. KG asserts membership of the Union citizen’s household, but the household in their case was clearly that of their parents. AK asserts that the household headed by his parents was the household of his seventeen year old cousin who was living there with her own parents. That seems to be an abuse of language. The claim also demonstrates the reach of the appellants’ case. The household in question was lived in by fourteen people, all of whom if living unlawfully in the United Kingdom would on the appellants’ argument qualify for a residence permit as soon as the Union citizen relative arrived here. To them would have to be added any other relatives of the Union citizen with whom she happened to have lodged or shared a flat either in Sri Lanka or in any other country that she passed through on her way to France.”

36. In Bigia & Ors. v. Entry Clearance Officer [2009] EWCA Civ 79 , the Court of Appeal was required to consider the extent to which certain propositions in KG (Sri Lanka) and AK (Sri Lanka) , including the one just quoted, required modification in light of the judgment of the Court of Justice of the European Union (“CJEU”) in Case C-127/08 Metock v Minister for Justice, Equality and Law Reform ECLI:EU:C:2008:449. The Court of Appeal (per Maurice Kay LJ; Clarke MR and Tuckey LJ concurring) reached the following conclusion (at para. 43):
“In my judgment, Metock does not impact on those propositions. I accept that Article 3.2(a) is based on the same policy considerations as Article 2.2 – ‘ensuring the protection of the family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the EC Treaty’ (here the right of free movement and residence of the Union citizen) and aiming ‘to strengthen the right of free movement and residence of all Union citizens’. That is why the Directive goes beyond Article 2.2 family members and makes provision, albeit in a different way, for OFMs. However, the emphasis remains on elimination of obstacles to the Treaty rights of the Union citizen rather than a policy of family reunification.”
37. Secretary of State for the Home Department v MR & Ors [2010] UKUT 449 , was a judgment of the Immigration and Asylum Chamber of the Upper Tribunal, sitting in Belfast, which culminated in the preliminary reference that resulted in the judgment of the CJEU in Case C-83/11 Secretary of State for the Home Department v Rahman ECLI:EU:C:2012:519. At paragraph 35 of its judgment, having observed that the membership involved is that of Union citizen’s household, the Upper Tribunal recognized that membership of the household requires at least physical cohabitation under the same space. It is important, however, to read that statement in the context of both the paragraph in which it appears and the judgment overall. The Upper Tribunal was there considering the judgments of the Court of Appeal in KG (Sri Lanka) and Bigia and, in doing so, was considering the extent to which “dependency” and “membership of the household” had been treated together for convenience in some parts of those judgments, without forgetting that they are alternative concepts with materially different requirements, as evidenced by the fact that “dependence” does not necessarily require physical cohabitation at the material time, whereas membership of a household does. I find it impossible to read the Upper Tribunal’s judgment as authority for the proposition that mere residence in the same household as that in which a Union citizen resides qualifies as membership of the household of that Union citizen for the purposes of Art. 3(2) of the Citizens’ Rights Directive.
38. In Moneke v Secretary of State for the Home Department [2011] UKUT 341 , the Upper Tribunal, in providing guidance to immigration judges in that jurisdiction, specifically considered the meaning of Article 3 (2) of the Directive, pending the determination of the reference in Rahman, holding in material part (at para. 40):

“Membership of a household has the meaning set out in KG (Sri Lanka) and Bigia (above): that is to say it imports living for some time under the roof of a household that can be said to be that of the EEA national for a time when he or she had such a nationality. That necessarily requires that whilst in possession of such nationality the family member has lived somewhere in the world in the same country as the EEA national, but not necessarily in an EEA state.”
39. The Upper Tribunal returned to the issue once more in RK v Secretary of State for the Home Department [2010] UKUT 421. That was a case that turned, ultimately, on the question of whether the appellant in India could be considered to come within the terms of Art. 3(2) of the Citizens’ Rights Directive as a dependant of her Portuguese – and, hence, Union citizen – mother-in-law in the United Kingdom. The appellant’s parents-in-law had moved to the United Kingdom exercising Treaty rights in 2003. The appellant’s husband had joined his parents there in 2005 as a dependent family member within the terms of Art. 2(2) of the Citizens’ Rights Directive. The appellant and her husband had married in India in 2007, following which the appellant had moved into the house in India owned by her father-in-law, in which her parents-in-law had lived prior to their departure for the UK. The appellant’s claim was that she was both a member of her Union citizen mother-in-law’s household in India and a dependant of her mother-in-law, through remittances she received from her parents-in-law there. The Upper Tribunal shortly disposed of the former contention in the following way (at paras. 17 and 18):
‘17. Before us Mr Jafferji focused his principle argument on the submission that Metock and the subsequent case of C-162/09 Lassal demonstrate that a broad meaning has to be given to the word “household” and applying that broad meaning the appellant could be said to have been residing in her in laws’ household in India. He recognised that nothing in the case law he relied on was addressed to Article 3(2) or the meaning of a household.
18. We do not consider that such an argument has any substance. As Buxton LJ pointed out in KG (Sri Lanka) the previous expression used in Article 10(2) of Regulation 1612/68 was ‘under his roof’. This suggests that not merely is a household a community that lives together in the same accommodation but the household should be that of the Union citizen. The appellant has never lived in her mother in law’s household. She lives in a house owned by her father in law in which the mother in law used to live, but ceased living there four years before she became a member of the mother in law’s family.’

40. It is true that, in the subsequent case of Wang & Ors v Minister for Justice [2012] IEHC 311, (Unreported, High Court (Cooke J), 23rd July, 2012), this Court concluded – for the purpose of an application for leave to seek judicial review – that, while the proposition may have been novel, it was not unarguable that a third country national mother of a Union citizen infant daughter might be considered a member of the household of that Union citizen for the purpose of Article 3(2) of the Citizens’ Rights Directive. But three points about that decision must be borne in mind. First, Cooke J was only required to decide – and only did decide (perhaps, rather generously) – that the proposition was arguable, not that it was correct. Second, even in that context, Cooke J went on to observe that the notion of ‘household’ normally connotes a group of individuals living together under ‘a head of household’. Third, the judgment in Wang suggests that none of the English jurisprudence just discussed had been opened to the court in argument.
41. I do not accept Mr Rehman’s argument that, despite the clear statements of principle in the judgments of the England and Wales Court of Appeal in KG (Sri Lanka) and the Upper Tribunal there in RK v Secretary of State for the Home Department , each of those cases must be viewed as limited to its own facts.

42. Nor do I accept the novel – if not audacious – argument that, in seeking to properly construe the European Union law term ‘member of the household of the Union citizen’, the English courts erred in the judgments I have discussed by failing to do so in accordance with the construction as a matter of English law of the term ‘household’ as it appears in s. 2(5) of the UK Divorce Reform Act 1969; see Santos v Santos [1972] 2 WLR 889 at 899 ( per Sachs LJ), and in s. 1A of the UK Inheritance (Provision for Family and Dependants) Act 1975; see Gully v Dix [2004] 1 WLR 1399 at 1406 (per Ward LJ). Such an approach cannot be reconciled with that stipulated by the ECJ in Case 283/81 CILFIT [1982] ECR 3415.

43. Even if it could, it would not avail Mr Rehman in this case. The relevant term in both s. 2(5) of the UK Divorce Reform Act 1969 and s. 1A of the UK Inheritance (Provision for Family and Dependants) Act 1975 is ‘living … in the same household’. Even if EU law terms fell to be construed by reference to the meaning ascribed to the same terms in domestic law statutes of a particular Member State (and they quite plainly do not), the term ‘member of the household of the Union citizen’ is not the same as the term ‘person living in the same household.’

44. I reject Mr Rehman’s argument that the construction of Article 3(2) of the Citizens’ Rights Directive recognised by the England and Wales Court of Appeal (and, indeed, by this court in Subhan v The Minister for Justice and Equality [2018] IEHC 458 (Unreported, High Court (Keane J), 25 July, 2018) (at para. 50)), is an ‘antiquated’ one because, as that argument appears to run, the conception of any person as the head of a household is an outmoded one. As I observed in Subhan, I see no reason why there cannot be more than one head of household, comprising a person or persons of any gender or, for that matter, none. There is no basis for Mr Rehman’s suggestion that the term so construed is in any way limited in its application to the ‘traditional family in which the husband is the breadwinner and the wife takes care of the household and the children’, which, according to Advocate General Geelhoed in his Opinion in Case C-413/99 Baumbast (5 July 2001) (at para. 23), was the sort of family relationship that the social legislation of the 1950s and 1960s made provision for at the time when Regulation 1612/68, the predecessor of the Citizens’ Rights Directive, was adopted.

45. The point is quite simply that there must be at least one person in any family household, however constituted, with the necessary level of authority, responsibilty or control to be the householder. In seeking to eliminate obstacles to the fundamental freedoms guaranteed by the Treaty on the functioning of the European Union, it makes perfect sense to act to ensure the protection of the family life of every economically active (or semi-active) Union citizen as a householder. I do not see how it can be said that the attainment of that objective entails acting to ensure a coincidental or windfall benefit for every family member of the same household as a Union citizen exercising free movement rights.

46. In support of his argument that the concept of a ‘head of household’ is an old-fashioned one, Mr Rehman cites a passage from the judgment of Charleton J in Hickey v McGowan [2017] 2 IR 196 (at 255), quoting the reference in the Australian text Sappideen and Vines, Fleming – The Law of Torts , 10th ed. (2011) (at para. 19.10) to the responsibility historically placed upon the head of the household for the conduct of his familia as the genesis of the master’s liability for the torts of his servants. While the idea of the liability of a head of household for the conduct of his familia may well be old-fashioned, I am quite satisfied that the concept of a head (or heads) of household is a useful and enduring one.

47. Mr Rehman submits that the clear distinction and separation between dependency on the Union citizen and membership of the household of the Union citizen in Article 3(2) of the Citizens’ Rights Directive would be rendered superfluous or redundant if the latter concept was not defined to extend to ‘membership of the same household as the Union citizen’ because otherwise the two terms would be, in effect, synonymous. While I have no doubt that the situations in which a family member is dependent on a Union citizen will often overlap with those in which a family member is a member of a household headed by that Union citizen, it is equally clear that there will be situations in which only one of those characteristics is present. It is perfectly possible for a person to be a family member of the household of a Union citizen without being dependent upon that Union citizen.

48. Contrary to Mr Rehman’s submission, I am satisfied that the use of the word ‘household’ in Article 132 of the Polish Code of Criminal Procedure and in the text of a particular European arrest warrant issued in Poland, as considered in the preliminary ruling of the ECJ in Case C-108/16 Dworzecki ECLI:EU:C:2016:346, provides no assistance regarding the proper construction of the term ‘member of the household of the Union citizen’ in the quite different context of Article 3(2) of the Citizens’ Rights Directive and Regulation 5 of the 2015 Regulations. Nor is there any assistance to be gleaned from the use of the term ‘persons who are living in the same household as the debtor’ in the very different context of Article 14(1)(a) of Regulation (EC) No. 805/2004 of 21 April 2004 creating a European Enforcement Order for uncontested claims.

49. Similarly, there is nothing in the judgment of the ECJ in Joined Cases 401/15, 402/15 and 403/15 Depesme, Kerrou and Lefort ECLI:EU:C:2016:955, upon which Mr Rehman seeks to rely, to support the construction of Article 3(2) of the Citizens’ Rights Directive for which he contends. In those joined cases, the ECJ reiterated (at para. 60) that the status of a dependent family member for the purpose of Article 10 of Regulation No 1512/68 and, later, Article 2(2)(c) of the Citizens’ Rights Directive ( i.e . a direct descendant of the Union citizen or of the spouse or partner of the Union citizen who is dependant on the Union citizen or the spouse or partner of the Union citizen) is the result of a factual situation, which it is for the Member State to assess. The ECJ, in dealing with dependency status – and not ‘membership of the household of the Union citizen’ – in that context, went on to observe that it may be evidenced by objective factors ‘such as a joint household shared by that worker and the student.’

50. Finally on this point, Mr Rehman submits that the proper construction of the term ‘members of the household of the Union citizen’ in Article 3(2) of the Citizens’ Rights Directive should be the same as, or fundamentally informed by, that of the term ‘members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State, who have been authorized to join him’ in Article 7 of Decision 1/80 of the EEC-Turkey Association Council of 19 September 1980, as interpreted by the ECJ in Joined Cases C-508 and C-509/15 Ucar and Kilic ECLI:EU:C:2016:986 or Case C-484/07 Pehlivan ECLI:EU:C:2011:395 . I am satisfied that the need for a duly registered Turkish worker’s family member who has been authorised to join him to cohabit with him in the same household for the required minimum three year period as a condition of access to employment in that Member State has nothing to say about the proper construction of Article 3(2) of the Citizens’ Rights Directive.

51. For the reasons I have given, I must reject Mr Rehman’s argument that the Minister adopted an unduly narrow construction of the term ‘member of the household of the Union citizen.’

ii. failure to give reasons

52. Mr Rehman contends that the Minister’s decision to uphold on review the decision to refuse him a residence card is invalid due to a lack of clarity or a lack of adequate reasons or both.

53. In seeking to invoke the status of ‘permitted family member’ for the purpose of Regulation 3(6) and 5(1) of the 2015 Regulations, which is essentially that of ‘other family member’ under Article 3(2) of the Citizens’ Rights Directive, Mr Rehman was obliged to satisfy the Minister that, in the UK as the country from which he had come, he was either a dependent of the Union citizen Mr Rahman or a member of his household.

54. Under Regulation 5(2)(c) of the 2015 Regulations, reflecting the requirements of Article 10(2) of the Citizens’ Rights Directive, in claiming that status on the basis upon which he did, Mr Rehman was obliged to produce to the Minister documentary evidence from the relevant authority in the country from which he had come that he was a dependant, or a member of the household, of Mr Rahman. In reality, Mr Rehman was entirely at large on the issue of both the evidence he chose to present in support of his claim and the means whereby he chose to adduce it; Case C-215/03 Oulane [2005] ECR I-1215 (at para. 53), Case C-1/05 Jia [2007] 1 CMLR 41 (at para. 41). Nonetheless, whatever evidence he did submit was always going to be subject to qualitative assessment and, in particular, as the ECJ has made clear in Jia (at para. 42), ‘a mere undertaking from a Community national or his spouse to support the family member concerned need not be regarded as establishing that family member’s situation of real dependence.’

55. For that reason, I reject as fundamentally misconceived Mr Rehman’s argument that the Minister was obliged to attribute evidential significance to a declaration and statement of Mr Rahman amounting to the provision of such an undertaking on the authority of certain English cases on the weight to be attributed to sworn and unsworn statements of family members in refugee status cases and naturalisation applications (see R (on the application of SS ) v SSHD (“self-serving” statements) [2017] UKUT 164 and The Queen on the application of MK (a child by her litigation friend CAE) v. The Secretary of State for the Home Department [2017] EWHC 1365 (Admin)).

56. In Moneke , already cited, the Upper Tribunal stated (at paras. 42 and 43):

“42. We of course accept…that dependency does not have to be ‘necessary” in the sense of the [United Kingdom] Immigration Rules, that is to say an able bodied person who chooses to rely for his essential needs on material support of the sponsor may be entitled to do so even if he could meet those needs from his own economic activity; see [ SM (India) v Entry Clearance Officer (Mumbai) [2009] EWCA Civ 1426 ]. Nevertheless, where, as in these cases, able bodied people of mature years claim to have been always dependent upon remittances from a sponsor, that may invite particular close scrutiny as to why this should be the case. We note further that Article 10(2)(e) of the Citizens Directive contemplates documentary evidence. Whether dependency can ever be proved by oral testimony alone is not something we have to decide in this case, but Article 10(2)(e) does suggest that the responsibility is on the applicant to satisfy the Secretary of State by cogent evidence that is in part documented and can be tested as to whether the level of material support, its duration and its impact upon the applicant combined together meet the material definition of dependency.
43. Where there is a dispute as to dependency (as there was in the present case) immigration judges should therefore carefully evaluate all the material to see whether the applicant has satisfied them of these matters.”

57. That appears to me to be a correct statement of the law. It follows the onus was on Mr Rehman to satisfy the Minister by cogent evidence that was in part documented and could be tested either that the level of material support he received from Mr Rahman, its duration, and its impact upon his personal financial circumstances combined together to meet the material definition of dependency in the UK (as the country from which he had come) or that he had lived for some time under the roof of a household that could be said to be that of Mr Rahman in the UK (as the country from which he had come) so as to establish membership of his household The Minister concluded that Mr Rehman had failed to do so.
58. In the written submissions filed on his behalf, Mr Rehman variously contends that he submitted a ‘considerable amount of documentation and declarations’ and ‘extensive documentary evidence’ that he was dependent upon, and a member of the household of, Mr Rahman in the United Kingdom. I have already listed and described (at paras. 17 and 20 above) what seems to me to be the very limited and not very cogent documentary evidence that Mr Rehman, through his immigration consultants, provided to the Minister.

59. It will be remembered that the Minister gave the following reasons for concluding that Mr Rehman had failed to supply evidence to show that he had been dependent upon Mr Rahman in the UK;

‘In respect of your dependence on the EU Citizen there is no evidence supplied to suggest that the EU Citizen was providing you with any funds in order to support yourself in the State. There is no evidence of payments being made from the EU citizen to yourself. In fact, the documentation provided in respect of the application shows that in your previous residence in the UK you were contributing to the payment of bills for the address as the utility bills provided for Yorkshire Water and British Gas are addressed to yourself.’
60. If the first sentence just quoted is read literally as referring to funds used to support Mr Rehman in this State, it is plainly wrong, although – equally plainly – it is irrelevant to the Minister’s decision on whether Mr Rehman had been dependent on Mr Rahman in the UK. And, as the ECJ pointed out in Case C-83/11 Secretary of State for the Home Department v Rahman ECLI:EU:C:2012:519 (at para. 45), the question whether the issue of the residence card referred to in Article 10 of the Citizens’ Rights Directive may be conditional on the requirement that the situation of dependence for the purposes of Article 3(2)(a) of that directive had endured in the host Member State is one that does not fall within the scope of the directive. I have no doubt that, if the erroneous assertion that no evidence had been supplied to suggest that Mr Rahman was providing Mr Rehman with funds to support him in the State was genuinely intended rather than a typographical error, it would be a severable error on the principles described by Humphreys J in R.A. v R.A. T. [2015] IEHC 686 (Unreported, High Court, 4th November, 2015) as it could not have affected the Minister’s conclusion that Mr Rehman had failed to establish that he was a dependent of Mr Rahman in the United Kingdom.
61. If, on the other hand, it is assumed – as seems most likely – that, by a typographical error, the word ‘State’ was wrongly used instead of the acronym ‘UK’ or something similar (as the use of the past continuous tense in respect of the provision of funds suggests), then the statement is correct; there is no evidence that Mr Rahman was providing Mr Rehman with funds in order to support him in the UK (although it might have been acknowledged that there is some documentary evidence to suggest that Mr Rahman may have directly discharged certain relatively modest medical bills for treatment provided to Mr Rehman there in 2012 and 2013).

62. Similarly, Mr Rehman’s name does appear (presumably as that of the householder or bill payer) on the copies of the Yorkshire Water bill and British Gas statement that he provided to the Minister; an unusual circumstance for an indigent refugee status applicant without a bank account and a fact for which no explanation was ever provided.

63. As already pointed out, Mr Rahman’s ‘affidavit’ of 31 March 2015 is, by reference to its own terms, not an affidavit at all but rather a statutory declaration made in the UK on that date under the provisions of the Statutory Declaration Act 1835. In this State, the relevant provision of that statute (s. 18) was repealed by s. 7 of the Statutory Declarations Act 1938. While s. 50 of the Civil Law (Miscellaneous Provisions) Act 2008, inserted a new s. 3A into the Act of 1938, permitting a statutory declaration made in a place outside the State to be regarded as having been validly made subject to appropriate authentication, no attempt was made to prove the authenticity of Mr Rahman’s declaration in accordance with s. 3A of the Act of 1938 or to explain the circumstances in which Mr Rehman came to make that purported declaration before leaving the UK. The bare assertions it contains – that Mr Rahman had been residing with Mr Rehman at the Conway Street address, and that he was supporting Mr Rehman as his dependent in the UK – do not amount to cogent evidence that is in part documented and can be tested of Mr Rehman’s asserted dependence on Mr Rahman, much less do they amount to documentary evidence from the relevant authority in the UK that Mr Rehman was a dependant, or a member of the household, of Mr Rahman there.

64. The ‘declarations’ that Mr Rehman and Mr Rahman each signed, perhaps aptly, on 1 April 2016 are not statutory declarations at all; they are simply statements. The signature on each has not been witnessed or otherwise authenticated. They have no evidential value. Even if they did, as with Mr Rahman’s statutory declaration, the bare assertions they contain would not meet the evidential requirements of either the 2015 Regulations or the Citizens’ Rights Directive.

65. The copy of a letter of reference, dated 17 November 2015, from a Leeds City councillor is not authenticated either. That may be just as well, as it goes no further than asserting that councillor’s knowledge that Mr Rehman stayed at the Conway Street address with Mr Rahman from the time of his arrival in Leeds. It does not speak to the questions of whether Mr Rahman maintained a household there and whether Mr Rehman was Mr Rahman’s dependent. And surprisingly, in view of Mr Rehman’s averment in these proceedings that he was never permitted to work in the UK and was supported at all times there by his brother Mr Rahman, the councillor concerned includes in that very short reference an expression of belief that Mr Rehman ‘has good business acumen.’

66. The Minister gave the following reasons for his conclusion that Mr Rehman had failed to provide sufficient documentation to show that he was a member of Mr Rahman’s household in the UK:

‘Prior to entering the State you have provided some documentation to show that you were residing at [the Conway Street address]. In support of this you have supplied a number of documents including medical reports, a letter from your GP regarding your registration, and utility bills in respect of Yorkshire Water along with a British Gas bill for yourself. In respect of the EU citizen you have submitted a number of Virgin Media bills dated between November 2014 and April 2015, the British Gas bill is in joint names and also the letter from the GP names the EU Citizen as a patient.
In support of your application, you have submitted a number of documents in respect of both yourself and the EU citizen however, the majority of the documentation provided is in respect of you the applicant. There is no tenancy agreement or mortgage statement in respect of the property. Whilst it is noted that there are a number of documents provided in respect of the residence of yourself and the EU citizen in the UK, there is no evidence to suggest that the household was that of the EU Citizen and that you were a member of that household.’

67. In their letter of 4 April 2016, seeking a review of the Minister’s decision, the immigration consultants who were acting on Mr Rehman’s behalf, asserted, amongst other things, that the Conway Street address had been purchased by Mr Rahman and his wife but was maintained by Mr Rahman, and that they would provide proof of the ownership of that property as soon as it came to hand. That proof was never provided. In the statement, described as a declaration, that Mr Rahman ostensibly signed on 1 April 2016 and which was without evidential value, he stated, amongst other things, that the Conway Street property was purchased by him and his wife together but was owned by his wife. For the purpose of these proceedings, Mr Rehman now avers that he lived at the Conway Street address with Mr and Mrs Rahman and their three children and that the property is owned by Mrs Rahman. It is plainly the case, as the Minister’s decision records, that the Minister was never provided with any evidence concerning the ownership or tenancy of that property.
68. Mrs Rahman’s ownership of the property, if it be so, is not a fact devoid of significance. As Regulation 5(1) of the 2015 Regulations and Article 3(2) of the Citizens’ Rights Directive plainly establish, and as the England and Wales Court of Appeal confirmed in Soares v Secretary of State for the Home Department [2013] 3 C.M.L.R. 847 at 855 ( per Davis LJ; Longmore and McFarlane LJJ concurring), in order to qualify as a permitted (or ‘other’) family member it is necessary to show dependence upon, or membership of the household of, the Union citizen concerned in the country from which the person concerned has come, and dependence upon, or membership of the household of, the Union citizen’s spouse there is of no avail.

69. For the reasons I have just set out, I find that the Minister provided clear and cogent reasons for the decision on review to confirm the decision not to grant Mr Rehman a residence card. For that reason, this aspect of Mr Rehman’s challenge to the Minister’s decision cannot succeed.

iii. lack of sufficient reasons

70. Mr Rehman suggests that his position is directly equivalent to that of the applicants in the case of T.A.R. & Anor. v Minister for Justice, Equality and Defence [2014] IEHC 385 (Unreported, High Court (McDermott J), 30th July, 2014) and, in essence, that the Minister’s decision is devoid of the level of information necessary to enable either him or the court to establish whether it is lawful, in breach of both his entitlement to natural and constitutional justice and fair procedures and his right of access to the courts.

71. In my view, the position of the applicant in this case could hardly be more different from that of the applicants in T.A.R. The first distinction is that, although the submissions filed on behalf of Mr Rehman baldly assert that he submitted to the Minister a ‘considerable amount of documentation and declarations’, ‘extensive documentary evidence’ or ‘comprehensive documentary evidence of dependency and membership of the household of the EU citizen’, I have already described the very limited and not very cogent documentary evidence concerned. It seems to me to stand in stark contrast to, what McDermott J adumbrated and described (at para. 13 of his judgment) as ‘the very extensive documentation’ supplied by the applicants to the Minister in that case.

72. A second distinction is that the Minister’s reasons for concluding that Mr Rehman had failed to establish that he had been either dependent upon, or a member of the household of, Mr Rahman in the United Kingdom were clearly and specifically articulated, rather than delivered in a terse and generic form of administrative shorthand, as was the case with the Minister’s decision in T.A.R. As McDermott J expressly pointed out (at para. 24), the shortness of the reasons given by the Minister for the decision under challenge there rendered it difficult for the court to understand the basis for the decision. No such difficulty is present here.

73. A third distinction is that the formulaic reasons provided by the Minister in T.A.R. did not engage with the evidence presented, in contrast to the decision of the Minister in this case, which set out the Minister’s conclusions on what the documentation submitted on behalf of Mr Rehman did and did not prove.

74. In T.A.R. (at para. 27), McDermott J was careful to qualify his conclusion that it was not possible to determine what the reasons provided meant with the words ‘in the context of the particular case.’ Mr Rehman seeks to read too much into the observation of McDermott J (at para. 25) that in order to address ‘any suggested deficiencies in their proofs’, the applicants were entitled to ‘a more detailed explanation of the evidential shortfall.’ It cannot mean, as Mr Rehman suggests, that all administrative decision-makers, including the Minister, are obliged to identify not only the manner in which any evidence presented falls short of proving any applicable requirement (as was done on behalf of the Minister in this case) but also ‘what type of evidence should be provided if applying again.’

iv. unreasonableness or irrationality

75. Mr Rehman suggests that the Minister’s decision is irrational and unreasonable because the Minister found that Mr Rehman’s claim of dependency on Mr Rahman in the UK was undermined by the fact that his own name was on certain utility bills that he had produced to the Minister in respect of the Conway Street address, whereas the Minister had invited Mr Rehman to submit such utility bills in respect of his residence with Mr Rahman in the State. That submission is based on a misunderstanding of the law. To qualify as a permitted family member, Mr Rehman was obliged to prove dependency on, or membership of the household of, Mr Rahman in the UK, as the country from which he had come, and Mr Rehman had produced copies of the relevant utility bills to the Minister for that purpose. The Minister’s stated reason for the standard form request that, if renting accommodation in Ireland, Mr Rehman and Mr Rahman should submit copies of their utility bills was to enable the Minister to be satisfied that they are resident here. Any question of the dependence of Mr Rehman on Mr Rahman within the State is completely irrelevant, at the very least as a matter of EU law in that context. Accordingly, I can find no irrationality in the Minister’s decision on that basis.

vi. audi alteram partem

76. Mr Rehman submits that the Minister breached the audi alteram partem principle, in failing to put to him for comment the fact that his own name appears on certain of the copy utility bills for the Conway Street address that he had submitted to the Minister, before concluding that those bills tended to contradict, rather than to support, his claim of dependence on Mr Rahman there. Ignoring the fact that he was the person who chose to provide those documents to the Minister without context or explanation, Mr Rehman asserts that, had he been asked, he could have explained that his name was on them merely to provide him with ‘proof of address’ for a purpose he does not specify and that, despite having assumed the liability to do so, he did not pay them – an explanation that, it might be argued with some force, raises at least as many questions as it answers.

77. In support of that argument, Mr Rehman relies on I diakheua v Minister for Justice, Equality and Law Reform [2005] IEHC 150, (Unreported, High Court (Clarke J), 10th May, 2005), a decision on an application for leave to seek judicial review. In material part, that case dealt with the arguability of the proposition that there was a requirement upon the Refugee Appeals Tribunal, as a body presiding over an inquisitorial process, to bring to the attention of any person whose rights might be affected by its decision any matter of substance or importance with the potential to affect that decision. However, Clarke J (at p. 11) drew a clear distinction between matters that an applicant knew of and had the opportunity to address in the course of the process and those that an applicant was not on notice of and, thus, did not have the opportunity to address. In contrast, this case cannot be described as an instance of the decision-maker paying selective regard to external material without drawing it to the applicant’s attention and allowing the applicant an opportunity to address it. Here, the Minister was doing no more than giving proper consideration to the material that Mr Rehman himself had chosen to submit.

78. A decision of more obvious direct relevance to the argument that Mr Rehman makes is that of Faherty J in Khan & Ors. v. Minister for Justice and Law Reform [2017] IEHC 800. That case involved a challenge to a refusal by the Minister to grant permission to enter the State to the applicants as ‘qualified family members’, specifically as the dependent parents, of a UK and, hence, Union citizen, exercising free movement rights here. On an argument of precisely the same type as Mr Rehman now raises, Faherty J concluded as follows (at paras. 83 to 85):

‘83. Much of the criticism levelled at the respondent in the course of this application centred around the failure of the respondent to give advance warning to the applicants of perceived deficiencies or contradictions in the documents submitted with visa applications prior to the respondent reaching a decision on the respective appeals. Counsel for the applicant maintained that had the applicants been forewarned they would have been able to address the perceived deficiencies or contradictions.
84. Counsel for the respondent submits that it was incumbent on the applicants to put their best foot forward and to present such relevant facts and evidence as might be necessary to support their applications, including facts and evidence which would tend to prove dependency. Accordingly, the respondent cannot be criticised, in these proceedings, for the condition of the applicant’s own proofs, because the respondent was not willing to accede to their application while in receipt of insufficient proof of dependency.

85. I agree with the respondent’s submissions in this regard. As stated in A.M.Y. v Minister for Justice [2008] IEHC 306 ” there is no onus on the Minister to make inquiries seeking to bolster an applicant’s claim; it is for the applicant to present the relevant facts.” ‘

79. I respectfully agree with that analysis and I reject Mr Rehman’s submission that there was an obligation on the Minister to put the views that the Minister had formed on the material that Mr Rehman had submitted to Mr Rehman for further comment or submission before making a decision on Mr Rehman’s application.
Conclusion
80. Mr Rehman’s application for judicial review is refused.