High Court of Ireland Decisions

[2025] IEHC 165

THE HIGH COURT

JUDICIAL REVIEW

[2023/551 JR]

BETWEEN:

S.K

APPLICANT

AND

THE MINISTER FOR JUSTICE

RESPONDENT

 

JUDGMENT of Mr. Justice Barry O'Donnell delivered on the 21^st day of March, 2025

 

INTRODUCTION

 

1.                  This judgment concerns judicial review proceedings brought by S.K ("the applicant") in which he seeks orders quashing decisions of the Minister for Justice ("the Minister") to refuse appeals or reviews. The appeals in question had been submitted in respect of decisions made by an officer of the Minister to refuse applications for visas that had been made on behalf of the applicant's children.

 

2.                  The judgment engages the processes that are applied by the Minister where third country nationals claim entitlements as "qualifying family members", as that term is used in the European Communities (Free Movement of Persons) Regulations 2015 (S.I. 548/2015) ("the 2015 Regulations"), which transposed Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, O.J. L/158, 30.4.2004 ("the Citizens Directive").

 

3.                  Among other matters, the 2015 Regulations address the manner in which third country nationals who claim entitlements derived from the rights of EU citizens may be permitted to enter and reside in this State. The 2015 Regulations have been the subject of extensive consideration by the Court of Appeal in recent years, and although those cases address different provisions or situations, certain general principles have been identified, and I have sought to set those out later in this judgment.

 

4.                  The applicant is a naturalised citizen of the United Kingdom, who is residing in this jurisdiction. He sought to have his children, who are nationals of a third country, join him in Ireland by way of an EU Treaty Rights Visa (an EUTR visa). The applicant submitted applications for EUTR visas on behalf of his four named children pursuant to the Directive and the 2015 Regulations, based upon their relationship with the applicant. The applications were rejected both at first instance by the EUTR Visa Processing department, and subsequently on appeal by the Visa Appeals Officer, for reasons which will be set out later in this judgment.

 

5.                  According to his amended Statement of Grounds, the applicant was born in Pakistan. The applicant first married in 1998 and divorced in 2010, and he has four children from that marriage, who remain in Pakistan and who are the subject of the visa applications addressed in the impugned decisions. He married for a second time in 2010. His second wife was a British citizen, and the applicant joined her in the UK in May 2011 on a spousal visa and became a naturalised UK citizen in October 2018. They divorced in 2017. The applicant relocated to Ireland in September 2020. He married his third wife, a Pakistani national, in October 2020.

 

6.                  The decisions that are the subject of these proceedings were made in connection with the fourth set of such applications made on behalf of his children by the applicant.

 

7.                  The applicant states that in 2018, when he was contemplating moving to Ireland, he made the first visa applications for his four children, who were living in Pakistan. Those applications were refused in January 2019 on the basis of a determination that the applicant was not genuinely intending to exercise his right of free movement to Ireland.

 

8.                  In November 2020, following his move to Ireland, new applications were submitted for visas in respect of his children and wife. In January 2021, the applications on behalf of his children were refused on the basis of difficulties in the identification documents that had been submitted, and on the basis of a rejection of the evidence that was submitted to support the applicant's contention that he was lawfully resident in the State as a worker. The applicant's wife's application for a visa was later approved on appeal in September 2021. Appeals were submitted in respect of the refusal of visas for the applicant's children. Those appeals were refused in October 2021.

 

9.                  The visa applications directly relevant to these proceedings were made on behalf of his children in April 2022. The applications were refused in August 2022. Appeals were lodged against those refusals in October 2022, and these appeals were refused by letters dated the 28 February 2023.

 

LEGISLATIVE STRUCTURE

 

10.              Following the withdrawal of the United Kingdom from the EU, provision was made for the application of the 2015 Regulations to UK citizens who had exercised their then Treaty rights to reside in the State before the end of the transition period (as defined) and who continued to reside in the State thereafter; see European Union (Withdrawal Agreement) (Citizens' Rights) Regulations 2020 (S.I. 728/2020). For the purposes of the facts in this case, there was no dispute that the applicant's situation was to be approached on the basis that he was a Union citizen at the material times.

 

11.              The CJEU has made clear that having regard to the important Treaty rights underpinning the Citizens Directive, "the provisions of that directive cannot be interpreted restrictively, and must not in any event be deprived of their effectiveness", see Metock & Others Case C-127/08 [2008] ECRI 6241. This case is concerned with right of third country nationals; their rights under the Citizens Directive derive from the exercise of freedom of movement rights of a Union citizen, see Singh C-218/14, EU:C:2015:476. The CJEU has made clear that the concept of a worker for the for the purposes of Article 45 TFEU does not preclude persons who earn low levels of remuneration, or who only work a small number of hours per week; see for instance Levin, Case 53/81 [1982] ECR 1035, Ruzius-Wilbrink C-102/88, EU:C:1989:630 and Geven, C-213/05,EU:C:2007:438.

 

12.              Regulation 2(1) in combination with reg. 3(5) of the 2015 Regulations contains a definition of "qualifying family member" which reflects the definition of "family member" in article 2(2) of the Citizens Directive. A qualifying family member of a Union citizen includes a direct descendant of the citizen who is under the age of 21 or who is over the age of 21 years but is a dependant of the citizen. By reg. 4(5), where a qualifying family member who does not have a valid passport or the necessary Irish visa seeks to enter the State the respondent is required to give them "every reasonable opportunity" to obtain the relevant documents. The respondent's officer may also require a person seeking to enter the State as a qualifying family member to produce documentary evidence of the relationship and dependency.  

 

13.              In terms of residency rights, a qualifying family member has a right to reside for more than three months in the State with the Union citizen in question. However, that entitlement is conditional on the Union citizen (from whom the family member derives their entitlement) being entitled to reside in the State for a period longer than 3 months. Under the regulations, a Union citizen who enters the State may reside in the State for longer than 3 months if, inter alia, they are in employment or self-employed in the State or they have sufficient resources for himself and his family not to become an unreasonable burden on the social assistance system of the State. Where a citizen ceases to be in employment or self-employment their entitlement to remain in the State will continue where certain criteria are met, including that they have become involuntarily unemployed and has registered as a job-seeker with the Department of Social Protection.

 

14.              In this case, while certain arguments were made on behalf of the applicant at the hearing that the Minister ought to have considered whether the applicant's situation should have been approached or considered from the perspective that he was a person who became involuntarily unemployed and has registered as a job seeker, this was not a basis that the respondent was asked to consider at any point in the course of the applications or the appeals that are the subject of these proceedings. Moreover, the application of those criteria, which are found in art. 7(3) of the Citizens Directive contradict the express basis of the applicant's applications to the respondent, which were predicated on the applicant continuing to be employed in the State.

 

15.              The regulations provide for an entitlement to have review of decisions made under the Regulations, and it is this part of the process that has been challenged by the applicant.  Regulation 25(5) provides that:

"(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 ..."

 

THE APPLICATIONS AND THE DECISIONS MADE

 

16.              At all material times the applicant was benefitting from legal representation in connection with the visa applications that were made on behalf of his children, and which are the subject of these proceedings. It can be noted, therefore, that the overall process that led to the impugned decision involved the applicant and his legal representatives being informed of the Minister's concerns in such a way that they ought to have been aware of the issues that required clarification or elaboration and thus the extent of the evidence required to address those matters.

 

17.              On the 7 April 2022, the solicitors acting for the applicant submitted a letter to the Visa Division on the Immigration Service Delivery department of the respondent. The letter asserted that the applicant was a British national who had been resident and exercising his rights in the State since September 2020. The letter noted that the four children were the biological children of the applicant, the eldest child was then aged 22 and was in education and dependent on her father, and the family intended to live together as a family if the visas were granted. The letter enclosed a schedule of documents that were said to support the propositions that the applicant was exercising his rights in the State since September 2020 and that he was the biological father of the children. The letter noted the previous visa refusals which it was said was due to the quality of certain evidence that had been submitted, and noted that DNA evidence was now being submitted together with birth certificates.

 

18.              The refusal decisions were recorded in four letters from a visa officer in the Irish Naturalisation & Immigration Service (INIS) section of the respondent's department. The challenge in this case is to the refusal of the subsequent appeals. Nevertheless, the contents of the initial refusals are important in approaching the appeal decisions. While the letters differed in some respects because two of the children were claiming to be dependents, in summary the cumulative reasons given were:

a.             The birth certificates were countersigned in a way that suggested the relevant ministry of foreign affairs did not take responsibility for the contents and that called into question whether the document was reliable.

b.             Dependency for the purposes of the regulations and Directive required the dependent person to show that they needed the support from their father to meet their essential needs. In that regard the evidence submitted of transfers from the applicant to his eldest child was not sufficient, and there was no documentary evidence as to the financial needs or means of the dependent person.

c.             For an entry visa to be granted the person must show that they are a family member of a Union citizen who was exercising their free movement rights in a genuine and effective manner. The refusal letters noted in that regard:

"Since you have applied under the withdrawal agreement, it is expected that you provide sufficient evidence that your UK sponsor was genuinely and effectively exercising their EU rights in the state before the Brexit deadline and has been continuously exercising their EU rights in the state since the deadline passed. You have provided multiple documents in an attempt to establish this, however based on the provided documentation it has not been sufficiently (sic) that your sponsor was gainfully employed before the Brexit deadline and has been exercising his rights since."

d.             In that regard, the letter referred to the documentation that had been submitted and highlighted three matters regarding the asserted exercise of rights prior to the Brexit deadline. First, that no tenancy agreement had been submitted to prove the applicant's tenancy at an address in Dublin, and no bills addressed to the applicant had been submitted of a type that would be expected for someone residing in the State. Second, a letter from a company stating that the applicant was employed from September 2020 included no contact details; there was no employment contract submitted; there were no details of the employment or the place of work. Third, payslips were provided for September to October 2020, but there were no payslips for November or December of that year. Hence, the decision maker was not satisfied that the applicant was exercising his EU rights in the State prior to the Brexit deadline.

e.             The decisionmaker also considered the evidence regarding the assertion that the applicant was exercising his rights continuously after the Brexit deadline. In that regard, it appeared that the applicant had moved to a second residence, but again there was no tenancy agreement, and a handwritten letter was deemed insufficient as there was no RTB evidence that the tenancy was registered. In addition, there were no bills for the residence showing active residence in the State. There was a letter from a second company stating that the applicant had been employed since early January 2021. This did not contain any contact details or details of the nature of the employment, and there was no contract of employment. The letter noted that if the applicant left the State after the Brexit deadline this amounted to a surrender of his rights under the Withdrawal Agreement. In that regard there were no payslips or bank statements relating to the period between March and June 2021.

 

19.              The operative part of the decision letter concludes:

"To conclude, having assessed all the documentation in you application, you have not provided documentation to show that your sponsor was exercising his EU rights prior to the brexit deadline and that he has been continuously exercising those rights since with no break periods where he surrendered his rights under the withdrawal agreement by leaving the state. As such I cannot consider you as a beneficiary under the withdrawal agreement or the EU Directive 2004/38/EC.

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." As such, it is the view of this office that it is incumbent on applicants to put their best foot forward and to present such relevant facts and evidence as might be necessary to support their application."

 

20.              The letter noted that a fresh visa application could be made or that the decision could be appealed.

 

21.              On 2 October 2022, the applicant's solicitors submitted a single composite appeal letter with attached documentation by way of appeals from all the refusal decisions. The submissions made on behalf of the applicant addressed the following matters that were said to arise from the decisions explained in the 9 August 2022 letters.

a.             First, there was a complaint that the deciding officer failed to take account of or consider the DNA evidence that had been submitted to prove the familial link between the applicant and his children.

b.             Second, in relation to the findings about the pre and post Brexit exercise of the applicant's Treaty rights, the submissions asserted that the applicant's wife's application to join him in the State was approved on appeal in September 2021. In that regard, the point was made that the respondent at that point must have been satisfied that the applicant was exercising his rights prior to 31 December 2020.

c.             Third, in relation to the employment issues the applicant submitted a further payslip dated the 27 December 2020 and also referred to an asserted failure by the deciding officer to consider a document that had been submitted, "Employment Detail Summary". The applicant submitted that this document was verifiable and demonstrated his employment in the State.

d.             Fourth, in relation to his accommodation, the submission started from the premise that in light of the housing difficulties in the State it should not be seen as unusual that people could not secure registered tenancies. The letter stated that the applicant was residing in an owner-occupied residence, which did not need to be registered, and attached a letter from the owner.

e.             Fifth, the applicant enclosed bank statements from March 2021 to June 2021.

f.              Sixth, in relation to the question of dependency the letter asserted that an overly strict view had been taken by the deciding officer and that the children were entirely dependent on their father.

 

22.              The appeal decisions were communicated and explained in separate letters addressed to each of the four children concerned. The letters each were dated the 28 February 2023. There is a high degree of overlap between the letters. The letter to the eldest child addresses the additional factors relating to dependency that arose in her case. With that exception, the letters address the other issues in identical terms. Each letter recites the first instance findings of the deciding officer and the submissions that were made in the 2 October 2022 letter from the applicant's solicitors. The appeals officer made the following findings:

 

23.              First, in relation to the eldest child's dependency claim, the appeals officer held that the fact that the person was then aged 23 and in full time education did not automatically lead to a finding of dependency on the applicant. It was stated that the material from the institution provided on behalf of the person did not go further than suggesting that she had been enrolled for one semester in Autumn 2021. There was no evidence that remittances from the applicant to one of the children were intended for or used for the benefit of the children. The fact that the children may reside in the same house was not deemed sufficient evidence that remittances sent to one person were intended for the use of all within the household. The officer stated that the three remittances for which evidence was provided did not establish dependency. This was particularly so where there was no evidence of household expenses or outgoings or the means of the children.

 

24.              In relation to the question of whether the applicant was exercising Treaty rights, which was a common feature of all of the children's appeals, first, the appeals officer noted that applications were processed individually on their own merits and by reference to the supporting documentation that had been submitted. Hence, it was contended, there was no basis for the children relying on the fact that the applicant's wife had made a successful application.

 

25.              Second, the appeals officer considered the documentary evidence that had been considered by the deciding officer together with the additional documents submitted as part of the appeals process. The officer found that there were difficulties with the evidence submitted to show current and continuous employment. In relation to the employment materials, a letter dated the 27 September 2022 had been submitted from a company that said the applicant was employed by it since the 4 January 2021. However, (a) the payslips that had been submitted showed that the applicant had worked zero hours between the 29 May 2022 and the 18 September 2022; (b) inquiries with the Department of Employment Affairs and Social Protection ("the DEASP") showed that the applicant had ceased working for the company on the 18 September 2022 (before the letter was sent by the company) and that there had been no earnings since May of 2022.

 

26.              For those reasons the officer concluded that little evidentiary weight could be attached to the company's letter and that it diminished the credibility of the overall claim. In addition, although documents were submitted showing employment with two food delivery companies, the most recent showed earnings from March 2022. Checks with the DEASP showed that there was no current employer on the applicant's file. As such, there was no evidence showing employment since May of 2022.

 

27.              Third, difficulties were noted with the evidence that the applicant was residing in the State for the relevant periods. Differing amounts had been provided for the applicant's rent. There was no evidence of rental receipts and no bank account evidence to show how any rent was paid. The other documents - some bills and a letter from the Intreo office - dated from March / April 2022, the period before the applicant appeared to have ceased employment.

 

28.              In the premises, the officer was not satisfied that there was sufficient evidence that the applicant had continued to exercise his free movement rights in the State. The appeals were therefore refused.

 

PROCEDURAL HISTORY

 

29.              The proceedings were commenced on the 23 May 2023 by ex parte application. On the 13 November 2023, the applicant was granted leave to apply by way of application for judicial review. As set out in the statement of grounds, the applicant seeks orders of certiorari quashing decisions of the respondent dated the 16 December 2022. In those decisions, the respondent refused the visa appeals of the applicant's four named children.

 

30.              The grounds on which leave was granted to apply for judicial review can be summarised as follows:

a.             There was no attempt to verify the applicant's residence in the State by contacting his landlord or his employer. This was said to be irrational and a breach of the safeguards provided for in Articles 30 and 31 of the Directive.

b.             The conclusion that the applicant had failed to provide sufficient evidence that he continued to exercise his Treaty rights was irrational and a breach of Articles 30 and 31 of the Directive where the respondent had granted a visa to the applicant's spouse.

c.              Relatedly, where a visa had been granted to his spouse it was claimed that the finding that the applicant had not provided sufficient evidence that he had continued to exercise his rights was a breach of fair procedures.

d.             The respondent should have issued the applicant with a "fair procedures" letter calling on him to explain the discrepancies around the employment issues and the residential issues.

 

31.              The applicant's solicitor swore an affidavit shortly before the application for leave was granted exhibiting updated payslips that seemed to show that the original payslips were erroneous. This material was not before the respondent when the impugned decisions were made. It seems that the purpose of that exercise was to demonstrate that if further inquiries had been made by the respondent the issues were capable of being resolved.

 

32.              I do not consider that this evidence is relevant. The impugned decision ought to be considered on the basis of the material submitted by the applicant at the time. To do otherwise would involve this court effectively being invited to find that it would have come to a different conclusion to the Minister on the basis of new evidence. As explained below, the process envisaged by the 2015 Regulations involves a fact-finding exercise by the Minister on the basis of the materials presented and the enquiries carried out by the Minister. It is for the applicant to respond to and satisfy the concerns of the decision maker; it is not a "joint venture". It can also be noted that an unsuccessful application for residency does not necessarily preclude future applications. If the applicant considered that he could have better addressed and responded to the Minister's concerns - of which, in this case, he was aware - this is not a matter that affects the legitimacy of the decision.

 

33.              The respondent filed a statement of opposition on the 24 April 2024, in which the legal grounds relied upon by the applicant were disputed. From that document, the respondent's position can be summarised as follows:

a.             The respondent was entitled to make a decision on the basis of the information presented: there was no obligation to conduct external inquiries or to seek additional evidence.

b.             Each application is considered on its own merits: the respondent is not bound by previous decisions. Moreover, in the initial decision the position was made clear, and the applicant was informed that inter alia, for data protection reasons the respondent cannot review previous applications relating to different applicants.

c.             There is no obligation on the respondent to discuss or debate potential findings in advance with an applicant. The respondent had regard to the matters that were drawn to her attention by the applicant.

 

34.              Ultimately the respondent contended that she had reached a reasoned decision in accordance with law on the basis of the information and documentation that had been provided.

 

APPLICABLE PRINCIPLES

 

35.              In addition to the overarching principles identified in the CJEU case law referred to above, the Irish case law identifies certain general principles that I consider are applicable to the issues that arise in these proceedings.

 

36.              There was consensus at the hearing that the burden of proof rests on the applicant to satisfy the Minister that his family members met the criteria for entry into the State. In that regard, reference was made to the observations made recently in the Court of Appeal in B.B., N.R. and A.B. (A Minor) v. Minister for Justice [2024] IECA 36, where the Court stated at para. 73:

"It was and is clear on the part of everyone involved (the parties, the Minister and the High Court) that the burden of proof in the first instance falls on an applicant to satisfy the Minister of various matters; which includes the factual matters underpinning an application for a visa. The burden is to produce sufficient evidence in support of those facts and to prove those on the balance of probabilities. If the Minister says that the applicant has produced "insufficient evidence" in support of the facts, that is in substance a finding that the fact has not been proved on the balance of probabilities."

 

37.              As with all judicial review applications, it is important that the court is mindful of the fact that it is concerned with process and not the substance of the decision. In Z.K. v. The Minister for Justice, Ireland and the Attorney General [2023] IECA 254, the Court of Appeal decided an appeal regarding a review of a decision by the Minister under the 2015 Regulations concerning an alleged marriage of convenience. Power J. emphasised at para. 113 that

"...it is important to recall that the issue before the Court is not whether the Minister was correct in concluding that ZK's marriage was one of convenience, but, rather, whether the process that led to the Minister's decision was vitiated by an error of such significance that the decision ought to be set aside. That is the important principle that governs the appeal."

 

38.              The Court of Appeal also has distinguished between statements or assertions made by or on behalf of an applicant and the vouching or supporting document provided to support those assertions. In Abbas v.  Minister for Justice and Equality [2021] IECA 16, the Court of Appeal - dealing with a "permitted family member" dependency claim -   made it clear at para. 82 that the Minister requires to be provided with supporting or vouching documentation in relation to the matters asserted therein. As noted by Binchy J.:

"While the statements are necessary in order to provide the [Minister] with essential background information relating to the Application, and to give a context to assist in explaining supporting or vouching documentation provided by an applicant, it is really only the latter documentation that constitutes evidence i.e. it is evidence provided in support of the factual background relied upon by an applicant in his supporting statement(s).Without such supporting or vouching documentation, the [Minister] would have great difficulty adjudicating favourably upon an application for residency."

 

39.              The above observations were made in the context of an application for residency by an applicant who claimed to be a "permitted family member" who was dependent on the EU citizen concerned. However, I can see no good reason why the general thrust of the observations is not applicable to the analogous situation of an inquiry as to whether a person is a "qualifying family member" and where issues arise as to whether the EU citizen was exercising their Treaty rights at the relevant time.

 

40.              In Shishu v. The Minster for Justice and Equality [2021] IECA 1, the Court of Appeal made a number of observations on the underlying process that are apposite and helpful in framing the approach to be adopted to a number of the issues in this case.

 

41.              Shishu concerned the application of the Citizens Directive and the 2015 Regulations where a residency card had been refused to a Bangladeshi citizen who was the younger brother of a naturalised UK citizen. The claim was that the younger brother was a dependent of his older brother and that he was entitled to residency by reference to reg. 5(1)(a)(i) of the 2015 Regulations; i.e. that he was a "permitted family member". Certiorari had been granted by the High Court and that decision was appealed by the Minister. There are points of distinction between the issues and facts in Shishu and the current application, but the Court of Appeal made some observations that are important to a general understanding of how this case should be addressed.

 

42.              In Shishu, the Minister had affirmed an initial decision which found that there was insufficient evidence to ground the application for residency. In very brief summary, the findings were based on conclusions that the evidence submitted to show dependency based on financial transfers were inadequate to support the claim of dependency; there was insufficient evidence to show that the younger brother resided within the household of his brother in the UK or in Ireland; and there was no evidence to show that the younger brother was reliant on the care his older brother for health reasons. The decision was challenged on a number of grounds, including that it was unreasonable for several reasons. 

 

43.              In relation to the finding that there was insufficient evidence, Haughton J. in the Court of Appeal considered Banger v. Secretary of State for the Home Department (Case C-89/17) EU:C:2018:570, and its treatment by Baker J. in Safdar v. Minister for Justice [2019] IECA 329, [2023] 2 I.R. 217. In Safdar, Baker J. had observed, at p. 230, that:

"The review is envisaged as an examination of the personal circumstances of the permitted family member and a justification to him or her of the reasons for the refusal of entry or residence."

 

44.              Having considered the above dicta of Baker J., Haughton J. said the following at para. 94 of Shishu:

"I respectfully agree with that comment. Moreover in my view such an approach chimes with the standard by which reasonableness is to be judged that applies more generally to judicial review of asylum and immigration decisions following cases such as Meadows v. Minister for Justice [2010] IESC 3, [2010] 2 IR 701 and Mallak v. Minister for Justice [2012] IESC 59, [2012] 3 IR 297. I am satisfied therefore that the trial judge was required to satisfy himself that the Impugned Decision was made on a sufficiently solid factual basis, and that the reasons given were justified on a rational basis that took into account the personal circumstances of the applicants." [emphasis added]

 

45.              Haughton J. went on to note at para. 100 that nothing in the 2015 Regulations requires an applicant to prove beyond reasonable doubt their entitlement to be treated as a "permitted family member". In that regard, in addition to finding that the Minister in that case had failed to address the application in the round and the overall quality of the evidence submitted, the Court of Appeal stated:

"...The standard to which the application must be proved is not spelled out, but reg. 5(3) provides that the Minister must only be "satisfied" that the applicant is a person to whom reg. 5(1) applies. That indicates that the onus is on the applicant to prove their entitlement on the balance of probabilities, the usual civil standard of proof. The Minister may entertain doubts about elements of the evidence provided, but that does not warrant a refusal unless the Minister, on assessment of the totality of relevant evidence and information provided or otherwise available to him, on the balance of probabilities is not satisfied that the applicant is a person to whom reg. 5(1) applies." [emphasis added]

 

46.              The Court of Appeal also considered the question - which clearly arises in this case - of whether there was an obligation on the Minister to inform the applicant of matters (over and above the information referred to in the Directive and Regulations) that may be required to satisfy concerns about the information submitted by an applicant who is legally represented. In that appeal, the applicant had submitted that the Minister should have consulted to some extent with the applicant so that he could understand what further information was required by the Minister. On the other hand, the Minister submitted that the parties were not engaged in a joint enterprise: the onus of proof and the risk that he had submitted insufficient evidence lay with the applicant.

 

47.              Drawing again on the analysis carried out by Baker J. in the Safdar case, which concerned an earlier iteration of the Regulations, Haughton J. rejected the approach contended for by the applicant in Shishu:

"[119] Of course the court in Safdar v. Minister for Justice [2019] IECA 329, [2023] 2 I.R. 217 was addressing the 2006 Regulations (as amended), but in relation to this issue the 2015 Regulations are not materially different. There is admittedly reg. 5(4) which now expressly empowers the Minister to require an applicant "to produce such additional evidence as the Minister may reasonably require", and reg. 25(5) which allows the Minister to pursue "enquiries" at the review stage. However in my view this does not assist the applicants. Under the 2006 Regulations the practice of the Minister was to correspond with applicants or their advisers raising concerns and inviting a response and/or additional evidence. It seems to me that reg. 5(4) is an enabling provision that now puts this power on a statutory footing and an applicant who fails to respond, or fails to respond adequately, runs that risk that the Minister will take an adverse decision which may be based in whole or in part on such failure and the concerns expressed in the Minister's correspondence. The same applies to Reg. 25(5). It does not in my view diminish the relevance of the judgment of this court in Safdar to cases which are now decided under the 2015 Regulations — in my view it remains the position that there is no legal obligation on the Minister to formulate or publish "generic guidance as to what it is the Minister looks for in an application", to use the words of the trial judge at para. 10, in an application of this nature, and it is notable that the Oireachtas in promulgating the 2015 Regulations did not see fit to mandate publication of departmental guidelines of the sort, for example, that are published in environmental matters and to which regard must be had in planning decisions." [emphasis added]

 

48.              The Court stated that the Minister is not obliged to raise concerns or identify the additional evidence that he might consider he requires. Likewise, at review stage the Minister is not required to carry out further enquiries — there is a discretion whether to do so. The Court at para. 122, agreeing with the Minister, found that "the process is not a joint venture, in which there is some ill-defined obligation on the Minister to assist applicants".  The Court went on to observe at para. 124:

"If the trial judge was correct in his conclusion that the Minister had an obligation to adopt a procedure that would enable the applicant to know what evidence he was required to adduce, it would in my view create very real and practical difficulty for the Minister in assessing and deciding applications. In the course of examining every application and reviewing every adverse decision several different INIS officers will be involved at different times, and each of them may entertain different views on the application and the evidence presented, and more may arise as the process unfolds — as was the case here. Would each officer taking up each file have to decide what additional information or evidence they thought should be provided and then raise a reg. 5(4) request (or reg. 25(5) enquiry as the case may be), as the applicants would seem to suggest? While it may be that raising a reg. 5(4) request or enquiry should generally and routinely be considered — and perhaps it is — I cannot accept that this is mandated by "fair procedures" in the absence of any greater obligation than that imposed by the wording of the Citizens' Rights Directive or the 2015 Regulations."

 

49.              The position was summarised at para.126:

What I take from this is that the Citizens' Rights Directive and the 2015 Regulations create the obligation to extensively examine the personal circumstances, but do not go so far as to impose an investigative obligation, or an obligation to raise queries or concerns or seek additional evidence. While I have considerable sympathy for applicants who may feel, as was the case here, that they were not given the opportunity to respond to concerns about proofs that were not raised with them, and were indeed "operating to some extent 'in the blind'", in my view the trial judge erred in answering this question in the affirmative."

 

50.              Nevertheless, it can be observed that, in Shishu, the Court of Appeal did hold that there will be circumstances where matters need to be raised with the applicant before a decision is made. Haughton J. explained:

"[127] Having said this there will be circumstances in which fair procedures dictate that the Minister raise matters with an applicant and consider a response before coming to a decision. This will arise where, for example, the Minister obtains relevant information from a source other than the applicant and is contemplating using that information to refuse a residence card. This in fact occurred in the present case where information "available to the Minister" indicated that Mr. Mohammed Jewel Miah, whose name appeared as landlord on the Castleblaney tenancy agreement provided with the application, was not in fact the landlord. In accordance with the requirement of fair procedures this was put to Mr. Miah in the letter of 17 August 2018 to "provide you with an opportunity to address these concerns prior to making a determination" — and it was duly answered. However I am satisfied that the matters which informed the Impugned Decision to refuse, while they can be criticised on other grounds, did not relate to new information or documentation sourced by the Minister which he was obliged (and failed) to put to the applicants to elicit their response.

 

[128] I would also observe that the corollary to the Minister in general not having the obligation to advise an applicant of his thinking as to what further information or documentation might be required to satisfy him on the application is that the Minister must justify a refusal, and must do so on a rational basis and the decision must have a solid factual basis. As I have found earlier in this judgment the Minister failed to do so in the Impugned Decision."

 

THE ARGUMENTS AND DISCUSSION

 

51.               The applicant made detailed arguments, which essentially were directed to the contention that when the applicant addressed the initial concerns about his status in the State, the Minister reached a decision in the review on a different basis. I do not agree that this is a correct construction of events. It is clear from the initial decision that the deciding officer was not satisfied with a number of matters: the applicant was aware that there was a real concern about his employment status. In response the applicant provided additional payslips. However, the payslips submitted by the applicant showed that he had worked zero hours and received zero pay during the period from the 29 May 2022 to the 18 September 2022. The additional inquiries carried out by the Minister with the DEASP corroborated the vouching documentation that had been submitted by the applicant, who was acting with the benefit of legal advice.

 

52.              I accept that there are circumstances where an EU citizen may be treated as a worker even if their employment involves quite limited levels of work. Similarly, there are situations where a citizen may experience temporary unemployment and can register as a job-seeker. The difficulty in this case is that the applicant did not seek to persuade the Minister that he was temporarily unemployed or that he was only able to obtain some limited levels of work. I agree that the Minister's submission was correct when it was stated, by reference inter alia to case law on the interaction between article 7 of the Citizens Directive and the CJEU's broader jurisprudence on the status of worker:

"It is therefore clear that, in order for a Union citizen to rely on the status of worker in circumstances where he is no longer employed, it is incumbent on him to provide evidence that the circumstances of his unemployment are beyond his control, and that he is actively seeking to return to the labour market, and to that end has registered as a jobseeker with the Department of Social Protection. No such evidence was provided to the Appeals Officer in this case."

 

53.              As noted by the Court of Appeal on a number of occasions, and as is evident from the quotations above from Shishu, the process of review before the Minister is not collaborative. The Minister certainly is required to engage with the assertions and vouching documents that are provided in response to the initial decision. However, I consider that it takes matters too far to suggest that there is a legal obligation on the Minister to conduct some form of broad inquiry to consider whether the applicant fulfils the criteria for a status that was not asserted in the first place.

 

54.              Likewise, as was highlighted by the Appeals Officer, the letter submitted by the applicant's employer postdated the date when he was recorded by the DEASP as having ceased employment. This was a further discrepancy that could give rise to a reasonable concern about the sufficiency of the evidence provided by the applicant. If these matters were capable of reasonable explanation, then this was a matter that ought to have been addressed when the applicant provided these materials. After all, the applicant must be expected to have a detailed knowledge of his own circumstances, and the Minister in this case largely relied on the materials that the applicant submitted. The only additional inquiries, with the DEASP, served to corroborate what the applicant himself had submitted to the Minister. In that regard, it is important to note that the initial decision had referred to inquiries carried out with the DEASP, and, in their letter of the 12 March 2021, the applicant's solicitors specifically requested that the Minister check the DEASP files.  

 

55.              Hence, I am not satisfied that the applicant has demonstrated that the decision regarding his employment situation was the result of an unfair process.

 

56.              It can also be noted that the Deciding Officer and Appeals Officer had additional concerns about residence in the State. Here the issue was that the applicant failed to provide sufficient evidence that he continued to exercise his free movement rights within the State. The applicant provided a number of documents which were addressed to him at the address in question, namely from an Intreo Centre, a Sky bill, and an Eir bill. The applicant also provided a handwritten note with his application, in which the landlord confirmed the applicant was resident at the address provided.

 

57.              In reaching a decision on this issue, the Appeals Officer noted that two different values for the amount of rent paid by the applicant were provided by the landlord. An amount of €750 rent per month was submitted by the applicant in his initial application in January 2022, whilst an amount of €700 rent per month was submitted in his appeal dated February 2022. Furthermore, the Minister concluded that no evidence concerning the payment of rent was provided.

 

58.              The Minister further noted that documents intending to prove habitual residence at the address provided were all dated in March/April 2022, weeks before, according to the evidence, the applicant ceased employment. The Minster considered that only one bill, namely a Sky bill, was linked to the residence itself for the payment of a utility. Ultimately the Minister concluded that the evidence was not sufficient to satisfy that the applicant was habitually resident at the address provided.

 

59.              The applicant argued that contact information was available for his landlord, and that the Minister ought to have contacted this person in order to clarify the position. While this was an option that was open to the Minister (and also was an option in relation to contacting the person identified as the applicant's employer), the case law does not make the exercise of that discretion a mandatory obligation. As noted by Haughton J. in Shishu, the process is not a joint venture:

"an applicant who fails to respond, or fails to respond adequately [to concerns raised by the Minister], runs that risk that the Minister will take an adverse decision which may be based in whole or in part on such failure and the concerns expressed in the Minister's correspondence".

 

60.              Here, as described above, the initial decision made clear that there were serious issues around residency and that the materials submitted in that regard were not sufficient. As part of the review process the applicant was afforded the opportunity to address those concerns. However, as noted by the Appeals Officer, there was no evidence of rental receipts, and no bank account evidence to show how rent was paid. Different figures were provided for the rent, and the other documents predated the period when it appeared that the applicant had ceased employment in the State.

 

61.              I am satisfied that there was no unfairness in the manner in which the Appeals Officer approached that evidence. It is clear that the applicant was aware that the Minister was concerned that the evidence supporting his residency claim was not sufficient, and that the applicant had the opportunity to address those concerns. As part of the review, the subsequent statements made on behalf of the applicant were considered and considered in the light of the documentary vouching materials that were submitted. There is no doubt that the submissions were considered by reference to the individual circumstances asserted by the applicant and furthermore that there was a sufficiently solid factual basis for the Minister to make the decision that was made.

 

62.              The applicant also claimed that the decision of the Appeals Officer was irrational or arrived at in breach of fair procedures because the Minister had granted a visa to the applicant's wife. It can be recalled that the visa application on behalf of the applicant's wife was refused on the 15 January 2019, and then approved on appeal on the 27 September 2021. The decisions impugned in these proceedings were reached at a later stage, and in particular at a time where the documentation submitted suggested that the applicant had ceased employment in May 2022, approximately 8 months after the visa was granted to the applicant's wife. It is not therefore immediately apparent how the earlier grant of a visa to his wife could be material to the concern on the part of the Minister regarding the sufficiency of evidence regarding that later period.

 

63.              The Minister made two primary submissions by way of response to this ground. First it was submitted that while there is some desirability to have consistency in decision making in this area, there is no sense that decision makers are bound by previous decisions. Second, in any event, each decision must be determined individually by reference to the materials and arguments made at that time. Without prejudice to those principled arguments, the Minister observed that the decision maker in this case in fact informed the applicant that information and documents submitted in connection with separate applications could not be considered in a different application for GDPR reasons.

 

64.              I consider that the Minister is correct that there is no legal obligation, in a stare decisis sense, for the administrative decision makers to consider themselves bound by previous decisions. I am also satisfied that the decision-making process required by the Citizens Directive must involve a close individual engagement with the particular arguments, information and supporting documentation associated with a particular application.   However, by analogy with the observations of Birmingham J. in J.N. v Minister for Justice [2008] IEHC 214, I am satisfied that where an applicant specifically draws the attention of the decision maker to an earlier application for entitlements derived from the same EU citizen, then there is a need to explain how or why the decision maker reaches a different decision.

 

65.              The JN case involved a different issue concerning the asylum process. Even though a different statutory process was engaged, I find the observations of Birmingham J compelling and applicable:

"Consistency is as desirable in the asylum system as it is in other areas of the legal world. While there may well be reasons why apparently like cases may be decided differently, where this happens fairness requires the decision-maker to identify where his or her point of departure was. No lengthy discursive judgment is required but an applicant should not be left perplexed as to why he or she failed, and someone else succeeded on the same facts."

 

66.              The applicant seeks to impugn the decision on the basis that it was unfair and / or irrational where his wife's visa appeal was successful, and not on the basis of a failure to explain any asserted inconsistency. Nevertheless, the point remains that it is not at all clear that this was a case where different decisions arose from the same facts and issues. The facts that were relied upon in this case were set out very clearly throughout the process by the decision makers. If the process requires a considered engagement with the information and documents submitted on behalf of an applicant in a particular application - which is what I have found occurred in this case - then the fact that the applicant's wife had obtained a visa was just one fact in the overall matrix that could have been considered.

 

67.              As it happened, a critical distinction between the two applications was that they were decided at different times, and, as noted above, this meant that the applicant's employment and residency status was considered by reference to a different period of time. That seems both logical and necessary. The process set out in the 2015 Regulations would be somewhat hollowed out if the decision maker, regardless of the assessment of the other material considerations, was compelled to a particular outcome simply by reference to an earlier associated application.

 

CONCLUSIONS

 

68.              In conclusion therefore I am not satisfied that the applicant has demonstrated that there was a failure to adhere to what is required by the Citizens Directive or the 2015 Regulations. I consider that the allegations that the procedures adopted by the Minister were unfair have not been made out. The applicant was aware of the issues that gave rise to the Minister's concerns, the applicant held the necessary information concerning his employment and residency circumstances and he had ample opportunity to answer the concerns that were raised. I am satisfied that there is no basis to find that the decisions made were irrational. The decisions were firmly rooted in an individual consideration of the information, and they were made on a sufficiently solid factual basis.

 

69.              In the premises, the application for judicial review will be refused. As this judgment is being delivered electronically, my provisional view is that the Minister should be entitled to an order for costs having regard to the relevant provisions of the Legal Services Regulation Act 2015. However, I will list the matter before me at 10.30am on the 2 April 2025 for any argument that may be required concerning final orders.