We recently wrote about the Sadiq case where the High Court issued a judgement which we believe was highly critical of the manner in which the Department of Justice and Equality dealt with family reunification cases (Sadiq & Ors v the Minister for Justice and Equality [2019] IEHC517).

If you think this was an isolated case, look at the decision judgment of the Court of Appeal in the joined cases of VK & Ors v the Minister for Justice and Law Reform & Anor and, Khan and Ors. v the Minister for Justice and Equality [2019] IECA 232.  The cases involved the Minister’s interpretation of a “permitted family member” who is “a dependant of the Union citizen” under Directive 2004/38 on the Right of Citizens of the Union and their Family Members to Move and Reside Freely within the Territory of the Member States, commonly referred to as the Citizens Directive. Directive 2004/38 was transposed into Irish Law by the European Communities (Free Movement of Persons) (No.2) Regulations 2006 (S.I. No.656/2006), now replaced by European Communities (Free Movement of Persons) Regulations 2015 (S.I. 548/2015) which entered into force in February 2016.

The Citizens Directive does afford the Member State a degree of discretion, however, it is a general principle of EU law that any discretion a Member State may have in implementing or transposing EU law must not deprive a provision of its effectiveness (effect utile).

The Court said the Minister should assess cases of dependency in a positive and non-restrictive light and not in the negative manner in which the current case had been assessed.   The judgment was critical of the Minister’s approach which it said was unduly restrictive and that the test the Minister had applied was not in accordance with European law.

Giving judgment for the Court, Ms. Justice Baker stated the test to be as follows:

  1. The test for dependence is one of EU law and an applicant must show, in light of his financial and social conditions, a real and not temporary dependence on a Union citizen. The financial needs must be for basic or essential needs of a material nature without which a person could not support himself or herself. A person does not have to be wholly dependent on the Union citizen to meet essential needs, but the needs actually met but be essential to life and the financial support must be more than merely ‘welcome’………
  2. The concept of dependence is to be interpreted broadly and in the light of the perceived benefit of family unity and the principles of freedom of movement.
  3. For the purposes of making the assessment, the proofs required, although remaining in the discretion of Member States, must not impose an excessively burdensome obligation on an applicant or impose too heavy a burden of proof or an excessive demand for the production of documentary evidence. The requested Member State must justify the refusal, and therefore must give reasons which explain and justify he refusal.
  4. When the case law identifies the requirement that the dependence be “real”, this means that the dependence must be something of substance, support that is more than just fleeting or trifling, and support that must be proven, concrete, and factually established. However, the applicant does not have to establish that without the real or material assistance he or she would be living in conditions equivalent to destitution. Dependence may be for something more than help to sustain life at a subsistence level and no more.
  5. What is to be assessed is whether a family member has a real need for financial assistance and not whether that person could survive without it. Thus stated, it is a test of the facts and not an interrogation of the reasons for the support.

The Court went on to state that the test to assess dependency must be carried out in a rational manner and the decision maker must give reasons that are transparent and, which show that there has been an objectively reasonable consideration of the facts.  The Court did not accept that an applicant had to show that it was impossible to live without support from an EU citizen family member.  The test should be whether a person needs support to meet their essential needs. The test used by the Minister was stated in the negative and therefore imposed a burden which was more onerous than that justified in the light of the legal authorities.

We have no problem with the Minister and his office having a degree of discretion when it comes to assessing matters such as dependency but, we are constantly taken aback when we see the Minister so regularly acting in a negative and restrictive manner.

If you want a firm who are prepared to fight your corner and contest actions like this, contact Orla Martyn.  You can ring her at 01-8401780 or email her at orla@shannons.ie

Shannon Solicitors – we’re there when you need us.