Court of Appeal: Certiorari order upheld in residence card case

Andrew McKeown BL

About this case:

• Citation:
  [2021] IECA 1
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Robert Haughton

The appeal was from the judgment of Mr Justice Max Barrett who granted an order of certiorari in favour of Md. Jabed Miah referring his application for an EU residence card back to the Minister for Justice for further consideration. Md. Jaglul Hoque Shishu, Mr Miah’s older brother, is a UK citizen, and as such was the EU citizen upon whom the application for the residence card depended.

Background

Mr Shishu was born in Bangladesh in 1978, where he lived until 2001 when he moved to the UK where he was naturalised in 2009 as a UK citizen, granting him free movement in Europe. Mr Miah was born in Bangladesh in 1992, and he claimed to be in receipt of monies remitted by Mr Shishu to Bangladesh before going to the UK in 2013 on a visitor’s visa. When he moved to the UK he claimed to be continuously financially dependent on his brother, as he was not entitled to work. Mr Miah moved to Ireland in 2016, and was joined soon after by his brother. They live together.

In June 2016, Mr Miah’s solicitors submitted an application for an EU residence card, attaching supporting documents. In April 2017, he received an INIS officer’s “Recommendation Submission”, recommending that the Minister refuse the application. A “Decision Submission” by another INIS officer followed in May 2017, stating she was not satisfied that satisfactory evidence had been submitted in relation to the dependency of Mr Miah on his brother. She refused his application. Mr Miah’s solicitors sought a review of the decision.

Following correspondence and changes in his solicitors, he received a ‘Review Officer Decision’ in October 2018 which recommended a confirmation of “the original decision to refuse”. Mr Miah sought judicial review.

Mr Justice Barrett granted certiorari. In his interpretation of the term “household” in the regulations, the judge had regard to German and Greek translations, citing the European Court of Justice decision in CILFIT v Ministry of Health (Case 283/81) that “[I]t 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”.

He found the Minister had acted unreasonably and in breach of fair procedures in concluding that Mr Miah had failed to submit satisfactory evidence that he was a dependent. The judge distinguished Subhan v MJE [2018] IEHC 458 and Safdar v MJE [2018] IEHC 698, relied on by the Minister.

Court of Appeal

The Minister appealed, arguing that the trial judge erred in law in departing from Subhan and Safdar. There was a cross appeal claiming the judge erred in finding that the Minister did not act unreasonably and/or irrationally in finding that he was not satisfied that Mr Miah was financially dependent on his brother in the UK. Relying on Subhan and Ali v Minister for Justice [2019] IECA 330, Counsel argued that the judge erred in finding that the Minister acted unreasonably and in breach of EU law in finding an insufficiency of evidence to show dependency. Counsel argued that the judge should not have given the notion of ‘household’ a wider meaning by reference to the German, Greek or Spanish translations.

Counsel for Mr Miah argued that the test of dependence applied in the initial decision, and affirmed on review, was incorrect, and that such a test was found to be erroneous by Ms Justice Mary Faherty in Khan v Minister for Justice, Equality and Law Reform [2017] IEHC 800 in favour of a test that focuses on “material support to meet essential needs”. That judgment was affirmed in V.K. and Khan v Minister for Justice and Equality [2019] IECA 232.

Counsel argued that the Minister had refused the application at the first stage of the decision-making process in accordance with Reg.5(2), but that he erred in so doing by relying on criteria set out in Reg.5(5). Counsel submitted that the Minister could not now take up a position diametrically opposed to the position adopted in the High Court, as per Mr Justice Donal O’Donnell in Lough Swilly Shellfish Growers Co-operative Society & Atlanfish Ltd v Bradley & Ivers [2013] IESC 16.

The court had regard to Ms Justice Marie Baker’s consideration of the question of two-stage decision-making in Pervaiz v Minister for Justice [2020] IESC 27 and found that the Minister was not precluded from considering all the documentation and submissions produced in support of the application.

The Supreme Court, having considered whether the meaning of who is a member of the household of an EU citizen is not acte Claire, recently determined that a reference was necessary (Subhan [2020] IESC 78). The Court of Appeal found that it was not necessary to defer their decision pending the outcome of that reference, because the cross appeal must succeed. The reference may take a long time, as other Member States are likely to make submissions, and the matter must be remitted to the Minister regardless.

The court below erred by not first considering the English/Irish text in context, and applying a teleological interpretation having considered the Recitals. Little weight attaches to other versions in the absence of any reference to caselaw from other Member States, or expert legal evidence as to how Art.3(2) has been interpreted in those countries (Subhan). EU legislation is not ordinarily to be read other than in the official languages of the State (Advocate General Jacobs’ opinion, Wiener v Hauptzollamt Emmerich (1997) C-338/95).

The judges cited Safdar with approval, finding that the review is envisaged as an examination of the personal circumstances of the permitted family member and a justification to them of the reasons for the refusal of entry or residence. This approach “chimes with the standard by which reasonableness is to be judged that applies more generally to judicial review of asylum and immigration decisions” (Meadows v Minister for Justice [2010] IESC 3, and Mallak v Minister for Justice [2012] IESC 59).

The judges held that the cross-appeal must succeed. Nowhere in the decisions of the INIS officers was the Jia/Khan test set out. The first decision failed entirely to identify the test that she applied. In so far as the test applied by the INIS officer could be gleaned from the Impugned Decision, he did not appear to have applied the correct test.

Conclusion

The court affirmed the decision of the High Court to grant certiorari and to remit the matter to the Minister for fresh consideration. It appeared that Mr Miah and Mr Shishu, having succeeded on appeal and in the court below, were entitled to their costs, notwithstanding that the Minister might argue that she won on some issues, as they had succeeded in both courts on the two central issues.