Irish Court of Appeal

Mr Shishu was born in Bangladesh on 6 July 1978 and lived there until 2001 until he moved to the UK where he was naturalised in 2009 as a UK Citizen giving him the right to free movement in Europe. In 2004 or 2005, he purchased a home at 94 Birley Street, Newton Le Willows, Merseyside where he resided with his wife.

“

·                    A Sonali Bank Limited bank statement in respect of account number 002057093 issued to me showing incoming payments of 1,405,289 taka (approximately €14,770.92 at the current exchange rate) between the 27^th January 2011 and the 30^th April 2013;

·                    8 Lloyds bank statements issued to my brother showing outgoing payments totalling £2,260 to me between the 1^st June 2015 and the 10^th February 2016;

·                    8 Lloyds banks statements issued to me showing income payments totalling £2,380 from my brother between the 3^rd June 2015 and the 24^th February 2016.”

In para.4 of his grounding affidavit Mr. Miah states –

“Throughout my time in the United Kingdom I was lived [sic] with my brother and was financially dependent on my brother, who covered my accommodation, food, transport, and all other needs.  I was on a visitor’s visa and could not and did not work.”

Corresponding to this, in para. 4 of the affidavit sworn by Mr. Shishu he confirms that Mr. Miah –

“…lived with me in my home at 94 Birley Street, Newton Le Willows, Merseyside.   My brother was not working during that time and was financially dependent upon me as a result.  I covered the cost of his accommodation, food, transportation and so on.”

-          On 18 October 2016, the solicitors enclosed a copy of Mr. Miah’s passport which confirmed the validity of the passport had been extended until 25 December 2016, and this was acknowledged by the Minister on 20 October 2016.

-          On 25 November 2016, the solicitors enclosed a letter of authority signed by Mr Miah,  nine Sonali Bank (UK) Ltd money transfer receipts vouching  remittances by Mr. Shishu to Mr. Miah in Bangladesh over the period January 2011 to May 2013 in amounts varying from GBP£396 to £1,000, photographs of Mr. Miah and Mr. Shishu together, a copy of the Family Certificate vouching the common identity of their parents and siblings and that they are brothers and their respective dates of birth, and Mr. Shishu’s contract of employment with Castle Indian Spice Ltd in Castleblayney, Co.Monaghan, receipt of which was acknowledged by the Minister on 2 December 2016.

-          On 10 January 2017 and 27 April 2017, the solicitors wrote to the Minister enclosing further documentation (over 100 pages) to support the application including Bank of Ireland bank statements for Mr. Miah’s current account showing that from 2 November 2016 when the account was opened there were weekly payments in from Mr. Shishu ranging from €30-€50, which became weekly payments of €40 by standing order 6 December, 2017, pay slips and a P60  and Tax Credit Certificate for Mr. Shishu in respect of his work for Castle Indian Spice Ltd in 2016, and a colour copy of Mr. Miah’s passport - and this was acknowledged by the Minister on 12 January 2017 and 28 April 2017.

“The applicant has not submitted satisfactory documentary evidence to show that he is a dependent of the Union citizen or that he was a dependent of the EU citizen prior to arrival to this State. While Md Jabed Miah has provided money transfers from the EU citizen, there is no corresponding documentation to show that the applicant received the money transfers. The applicant has also submitted Lloyds bank statements showing money transfers from the EU citizen.

It is not accepted that the applicant submitted sufficient documentary evidence to show that he is a dependent of the Union citizen or that he was a dependent of the EU citizen in the country from which he has come as required by Regulation 5(1)(a)(i). As such, the evidence submitted does not establish dependence on the EU citizen such as to render independent living at subsistence level by the applicant impossible if the EU citizen did not maintain that financial support.

Accordingly, based on the documents supplied, I am satisfied that the applicant has not established that he is a permitted family member of the UK citizen and as such, I have decided to refuse this application.”

Initial Decision

“…Please be advised that Regulation 5(1)(a)(i) applies to individuals who are member of the family of an EU citizen to whom Regulation 5(2) applies and requires that an application demonstrates that the applicant, in the country from which they have come, is dependent on the EU citizen.”

The grounds for refusal reflect those set out in the “Decision Submission”, and in particular repeated the sentence  -

“As such, the evidence submitted does not establish dependence on the EU citizen such as to render independent living at subsistence level by the applicant impossible if the EU citizen did not maintain that financial support.”

 The letter noted that Mr Miah was entitled to seek a review of the decision in accordance with Regulation 25 of the 2015 Regulations within 15 days.

“The review application enclosed a number of bank statements showing that my brother had transferred money to me. The relevant transfers were highlighted for ease of reference. The application also included Sonali Bank (UK) Ltd, remittance forms issued to my brother which confirmed he had transferred 1,405,289 taka to me in Bangladesh between the 25^th January 2011 and the 29^th April 2013. A copy of my brother’s mortgage statement confirming his ownership of 94 Birley Street, Newton Le Willows, Merseyside, W A12 9UN  was also submitted, together with further evidence confirming our joint residence there. The form EU4 application enclosed with the review documentation stated that documents showed that I was living in my brother’s house in the United Kingdom and asserted that I did not pay any rent or bills there, as they were covered by my brother. A copy of our lease in respect of our new home at 46 Woodland, Kilrush, Ennis, Co. Clare and a letter from my brother’s new employers, Bonfire Restaurant, were also enclosed. On the 22^nd May 2017, the Respondent acknowledged receipt of the said review application. The letter stated that it was open to me to submit any additional supporting documentation I might wish to be considered by no later than the 22^nd June 2017.”

“The Landlord shall register this Tenancy Agreement with the Private Residential Tenancies Board (PRTB) as required under the Residential Tenancies Act 2004.”

“We refer to our above named client’s application and advise the UK citizen, Mr Shishu has started a new job in Bonfire Restaurant and we enclose herewith copy payslips, his up to date bank statements, meteor bill, a copy of the applicant’s current passport and copy tax credit certificate 2017 for Mr Shishu.

We also refer to your letter dated 22^nd May last and respectfully submit our client has previously furnished documentation to show that they are brothers.  They lived together as part of the same household before they came to Ireland and they have also provided substantial evidence to show the applicant was dependent on his EU citizen brother throughout this period.

We now call upon you to tell us your exact definition of ‘permitted family member’ and ‘household’ in the context of the regulations.  Until we receive this information we are unable to fully respond to your above mentioned letter.

We thank you and await hearing from you further.”

 It will be noted that this submission repeated the claim to a residence based on membership of Mr. Shishu’s household in the UK.

“We are instructed that the only other resident of the house was the EU national’s then-wife, Mst Doli Begum, whom he has since divorced.  A copy of the divorce decree is also enclosed.  We are instructed that Mr Shishu has since remarried and applied for a visa for his new wife;  this visa application was refused, but he intends to appeal.

You have already been furnished with numerous documents evidencing our client’s residence with the EU national in the UK. We submit that the evidence you now have establishes beyond all doubt that he was a household member of the EU national.  Accordingly, his residence card should now issue without further delay.”

By letter dated 3 May 2018, INIS acknowledged receipt of this correspondence.  

(i) that Mr. Miah arrived in the State four days before Mr. Shishu, and that the application for a residency card was made on 21 June 2016 yet included were documents submitted in Mr. Shishu’s name to a UK address in May 2016;

(ii) that Mr. Shishu was absent from the State from January to May 2017;

(iii) birth certificates submitted showed Mr. Shishu and Mr. Miah to be brothers, but the Family Certificate submitted did not list the family siblings in order of birth, and appeared to be a combination of two documents;

(iv) while the 16 York Street, Castleblayney tenancy commenced 28 April, 2016, an invoice from McElvaney’s Waste & Recycling submitted was dated 31 March 2016, one month prior to the commencement of the tenancy;

(v) the tenancy agreement for 16 York Street shows Mohammad Jewel Miah as landlord, but “information available to the Minister shows that Mr. Miah is not the landlord of this property.”

(i) Mr. Shishu continued to own his property in the UK and in May 2016, two months after the move to Ireland, “he may not have updated all documentation to reflect his move.  We submit that this says nothing about his “centre of interest”.  KOD Lyons then enclosed copies of emails from a rental agency in the UK dated 1^st May 2018 confirming Mr. Shishu’s continued ownership and his attempts to rent the property;

(ii) As to Mr. Shishu’s absence in January 2017 this was to marry his second wife – in respect of whom a visa application had been submitted to the Minister and was then under appeal.  “During this absence our client continued to reside in the Sponsor’s house in Ireland.  Not being entitled to work in the State, he was clearly dependent on his brother for accommodation during this time. We would in any event remind you that the relevant issue in a permitted family member application is dependency in the country from which he has come – not ongoing dependency after his arrival.”

(iii)  The Family Certificate did combine two different pieces of paper – because the Family Certificate was larger than A4 size.  “An unadulterated Family Certificate is now enclosed.  Our client cannot account for the order in which he and his siblings are listed;  however, we would respectfully submit that it is insufficient to assert that children are ‘usually’ listed in a particular order” – and reliance was placed on the birth certificates with which no issue was taken.  It was also noted that “Bangladeshi birth certificates are verifiable online”, and print-outs were furnished.

(iv) As to McElvaney’s Waste and Recycling Invoice, “the company bills on the basis of a service period which runs between two set dates.  The invoice, when issued, covers the entire period and reflects a date toward the start of that period.  Thus, although our client and his Sponsor did not take up their lease until 28 April 2016, they were issued with a bill for the whole service period of 4^th March – 30^th June 2016 and dated 31^st March 2016.”

(v) As to the Tenancy Agreement “our client instructs that Mohammed Jewel Miah is the man to whom he and his brother are paying rent at 16 York Street.  It may be that Mr. Miah is himself leasing the premises from another person or company and that theirs is merely a sublease;  however, our client is not aware of this being the case.”

“does not show the household was that of the EU citizen or that the applicant was a member of that household whilst they were both residing there.  In fact, the documentation appears to show that the applicant and the EU citizen were both residing in a co-sharing arrangement with joint responsibility for the property including rent and payment of bills”;

On dependency, while the documents showed money transfers to Bangladesh in 2011-2013, in the UK in 2015-2016 and the State in 2016-2017, the absence of Mr. Shishu from the State from January to May 2017 was said to be “inconsistent” with dependency. Of importance was the next statement, reflecting the reason for refusal in the Initial Decision -

“Money transfers alone do not show a degree of dependency, such as to render independent living at subsistent [sic] level impossible, were that financial support not maintained.”

In respect of the Family Certificate the author found the explanation given by Mr. Miah’s solicitors to be “insufficient”, observing that -

“ [it] is the same length as the poorly altered one that had been provided with his initial application. The line between individual 6 and 7 is no longer visible.  The applicant’s assertion that he had to use more than one piece of paper due to the length of the his birth certificate are not credible, given that his now provided ‘unadulterated Family Certificate’ is the exact same length.  The applicant’s representatives have maintained that the birth certificates provided in respect of his application are genuine and that they can be verified online.  This does not detract from the submission of an altered fraudulent document.  The ‘unadulterated’ version provided at review is simply a computer print-out.  It bears none of the security features one would expect from such a document and is not apostilled.”

Ms. NíFhrighíl concluded:-

 “Having considered the review request of Md Jabed Miah and the evidence available to me, I recommend that the decision dated 09/05/2017 to refuse the application of Md Jabed Miah to be treated as a permitted family member of a Union citizen be confirmed.

I recommend the inclusion of an additional finding under Regulation 27(1) of the Regulations on the basis that the applicant has submitted fraudulent documentation in support of his application”

“I am to inform you that the review of your application has not been successful, as you do not fulfil the relevant conditions set out in the Regulations and the Directive.  The decision to refuse your application dated 17/06/2016 is affirmed for the following reasons:

You have submitted numerous documents in respect of your financial position both in the State and prior to your arrival. In this regard, you have submitted receipts for several money transfers made to Bangladesh from the UK. These receipts, the authenticity of which can not be verified, appear to show that your brother sent money to you in Bangladesh from time to time between 2011 and 2013. It is not apparent, however, that you were dependent on these money transfers. No evidence has been provided to suggest that, had you not been in receipt of these transfers, you would not have been able to support yourself in Bangladesh.

In respect of dependence on your brother in the UK, you have submitted several statements for your own and your brother’s UK account which indicate that you did, indeed, receive some small financial transfers from your brother while you were in the UK. It is noted, however, that you spent little of the money that your brother transferred to this bank account – there are some cash point transactions on record but no direct debits or standing orders. Indeed, it is clear that you had another, separate bank account in the UK, the details of which you have not supplied to the Minister. You applied for gym membership at GoAdvice using a second bank account number, and the direct debits for your telephone bill do not come from any of the accounts on file. It is not immediately apparent, therefore, that you were dependent upon money transfers from your brother. No evidence has been provided to suggest that, had you not been in receipt of cash transfers from your brother, you would not have been able to support yourself in the UK.

Your Irish bank statements show that you have been in receipt of regular, small transfers from your brother while in this State. Again, however, no evidence has been provided to suggest that you would not be able to support yourself in Ireland if you were not in receipt of these transfers. In light of the above, the Minister is not satisfied that you have provided satisfactory evidence to establish that you have been dependent upon your brother, including prior to his arrival in the State.

Numerous documents have been submitted in respect of your residence in the UK and Ireland. You have submitted a range of documents addressed to you and to your brother at 94 Binley Street, Newton Le Willows, Merseyside, UK. It is not evident from the documentation submitted, however, that you resided within the household of the EU citizen prior to your departure for Ireland. You have not provided sufficient evidence to show how many people were living at the UK address mentioned, their relationship to you, or the length of time that you and the EU citizen were residing at the address in question.

You have asserted that you and your brother have been residing together in the State since March 2016. In support of this assertion, you have provided documents pertaining to 16 York Street, Castleblaney, Co. Monaghan and 46 Woodlands, Kilrush Road, Ennis, Co. Clare. It is noted that the tenancy agreement for 16 York Street lists another UK citizen as the landlord. However, this same UK citizen is listed as a tenant of 16 York Street on a different application before the Minister, and he has provided PRTB correspondence to establish his tenancy at that address. It is not considered to be credible that an individual could be both a tenant and a landlord of one property.

Although you contend that you currently live with your brother in Ennis Co. Clare, there is insufficient evidence on file to establish that you are a member of your brother’s household in Ireland. Indeed, it is noted that you are named as a co-tenant on the lease for your house in Co. Clare, which suggests that share an address and responsibility for a lease with your brother rather than being a member of his household. The Minister finds that although you may have shared an address with your brother from time-to-time over the years, he is not satisfied that you have been a member of your brother’s household, including prior to your arrival in the State.

There is no information or documentation on file to suggest that you are suffering from any serious form of medical complaint. As such, there is no reason to believe that you are reliant upon the personal care of your EU citizen brother for health reasons.

Having considered all of the information, documentation, and submissions on all of the applicant’s files, the Minister is not persuaded that the decision of 09/05/2017 should be overturned.  You have failed to establish that the Deciding Officer erred in fact or law when refusing your application for a residence card.  He finds that the appropriate procedures were used and that the correct interpretation of the Regulation and the Directive was applied. In reaching her determination, the Deciding Officer in this case considered all the information and documentation available to her.

The Minister is not satisfied that you have demonstrated that you were dependent on the EU citizen, including prior to your arrival in the State; or that you were a member of the EU citizen’s household, including prior to your arrival in the State; or that you required the personal care of the EU citizen for health reasons in accordance with the Regulations.  As such, the Minister has decided to confirm the decision of 09/05/2017 to refuse your application for a residence card as a family member of an EU citizen.”

“…particularly aggrieved that it had been refused on the basis that I had allegedly failed to submit sufficient documentation in support of my application, having regard to the efforts I had made to supply the Minister with all of the information necessary in support of same. If the Minister required additional documentation then I do not understand why he did not contact me to request same, particularly as I had expressly asked him to contact me if anything further was required.  Had I been given details of the documentation required then I would have done everything in my power to furnish the Minister with same. However, it has never been clear exactly what documentation was considered necessary in order to establish that I was dependent on my brother and a member of his household before coming to the State. I do not know what additional documentation I could submit...”

  in order to prove his residency in UK or in Co. Monaghan, or the manner in which he spent the money transferred to him by his brother.

Judicial Review sought

 “

(a)    An order of certiorari quashing the Respondent’s decision of the 12^th October 2018 to refuse the second Applicant’s application for a review of the decision refusing his application for an EU residence card;

(b)   An order directing the Respondent to reconsider the second Applicant’s application for a review of the decision refusing his application for an EU residence card as a matter of urgency;

(c)    Such declarations(s) of the legal rights and/or legal position of the Applicants and/or persons similarly situated as the court considers appropriate;

(d)   Such further and other order as this Honourable Court shall deem meet;

(e)    An order providing for the award of the costs of these proceedings to the Applicants.”

It is not necessary to set out the grounds, or Statement of Opposition, as the relevant grounds and arguments emerge from the decision of the trial judge and submissions before this court to which I refer later in this judgment.

The relevant EU and Domestic legislative provisions

“(5). The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. For the purposes of this Directive, the definition of ‘family member’ should also include the registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage.

(6). 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 this 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.”

Article 2 defines “Family member” to include spouse, partner, “direct descendants who are under the age of 21 or are dependants” and “dependent direct relatives in ascending line”, and therefore does not extend to siblings of a Union citizen.

Article 3 , headed “Beneficiaries”, provides:

“(3)(1). This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them

(2) 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.”

The terms “dependent” and “members of the household” are not defined in the Directive.

“Permission for permitted family member to enter State

5. (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

(ii) is a member of the household of the Union citizen, or

(iii) on the basis of serious health grounds strictly requires the personal care of the Union citizen,

or

 (b) is the partner with whom a Union citizen has a durable relationship, duly attested.

(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 family 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 which he or she has come, that he or she is a dependant, or a member of the household, of the Union citizen

(ii) proof of the existence of serious health grounds which strictly require the personal care of the applicant by the Union citizen;

(iii) documentary evidence of the existence of a durable relationship with 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;

(c) where, on the basis of serious health grounds, the applicant strictly requires the personal care of him or her by the Union citizen concerned, the nature of the serious health grounds and the duration of the period in which they have existed;

(d) where the applicant is in a durable relationship with the Union citizen concerned, the nature and duration of the relationship;

(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.”

Regulation 25 provides for a review of a first instance refusal:

“Review of decisions

25(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).”

High Court Judgment

(1)               Did the Minister err in his application of the relevant provisions of the EC (Free Movement of Persons) Regulations 2015? The trial judge answered this as follows:

“4. Yes. By letter of 20.06.2016, Mr Miah's solicitors made application for a residence card for Mr Miah. For that application to succeed, Mr Miah first had to get through the hoop of establishing himself to come within reg.5(1). In his initial decision of 09.05.2017, the Minister refers to Mr Miah's ‘ application to be treated as a permitted family member of a Union citizen under Regulation 5(2)’.However, the only decision that falls to be made under reg.5(2) is whether one is a person to whom reg.5(1) applies; the decision as to whether or not an applicant should be treated as a permitted family member falls, per reg.5(4), to be made under reg.5(3). The Minister later states that ‘ It is not accepted that you submitted sufficient documentary evidence to show you are a dependent of the Union citizen’. If that is the case, then reg.5(3) could not come into play. Regulation 5(3) empowers the Minister to ‘ 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’. But the Minister can only so cause if, per reg.5(3), he is ‘satisfied that the applicant is a person to whom paragraph (1) applies’. However, the Minister expressly concludes in the initial decision that ‘ It is not accepted that you submitted sufficient documentary evidence to show you are a dependent of the Union citizen’, i.e. that reg.5(1) does not apply. In the Impugned Decision, the Minister again confirms that he does not accept that the requisite dependence under reg.5(1) presents. That being so no decision arises to be made under reg.5(3). Regulation 5(5)(a) which is clearly relied upon in the Impugned Decision, e.g., in its reference to the extent and nature of dependency, only comes into play ‘ where the applicant is a dependent of the Union citizen concerned’ and in the context of reg.5(3); but here the Minister has reached a decision under reg.5(2) that Mr Miah is not a dependent to whom reg.5(1) applies and is not making a decision under reg.5(3). By bringing reg.5(5)(a) criteria to bear in a reg.5(2) assessment of status under reg.5(1) and by concluding, as he did, that there was a want of evidence that is required under reg.5(5)(a), the Minister erred in law in identifying a deficiency of documentation provided in respect of matters that did not properly arise for consideration.”

(2) Did the Minister act unreasonably and/or in breach of EU Law and/or the 2015 Regulations in determining that the second applicant had failed to provide sufficient evidence that he was a member of the first applicant’s household ? The Trial Judge answered this ‘yes’. He referred to the treatment in the Impugned decision of the “numerous documents” submitted where it was stated –

“…It is not evident from the documentation submitted, however, that you resided within the household of the EU citizen prior to your departure for Ireland.  You have not provided sufficient evidence to show how many people were living at the UK address mentioned, their relationship to you, or the length of time that you and the EU citizen were residing at the address in question.”

The trial judge then gave six “points of relevance” in support of his decision at para. 7:

(i) he emphasised the obligation imposed on Member States by Article 3(2) “to facilitate entry and residence” for “members of the household of the Union citizen”;

(ii) he stated “the court has never previously seen an application of the type now in issue in which such an abundance of evidence was provided as to a particular point”, and then listed (a) – (k) all the documentation linking Mr. Miah to Mr. Shishu’s UK address and household;

(iii) the trial judge then observed –

“a question-mark arises, given the volume and pertinence of the information referred to in (ii) whether the Minister paid due regard in the Impugned Decision to the obligation referenced at (i)”;

(iv)  observing the absence of a definition of “household” in the Directive, he considered the word should be given its ordinary meaning, and that this should involve a “uniform application throughout the European Union.  The trial judge then cited the Court of Justice in CILFIT v Ministry of Health (Case 283/81), para.18 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 informative the German version (“…or who lives with him in the same house in their country of origin”), the Greek (“…or lives under his roof in the country of origin”), and Spanish (“…or lives with the Union citizen beneficiary with the principal right of residence”), and considered this suggested “a looser relationship to be contemplated by Art.3(2)(a) than is contemplated by the English language version”;

(v) the trial judge then stated –

“ it follows from (iv) that (a) the proper meaning to be given to the notion of “household” within Art.3(2)(a) appears to be wider than recourse solely to the ordinary English meaning of same is appropriate; and (b) the statement in the Impugned Decision that “You have not provided sufficient evidence to show how many people were living at the UK address mentioned, their relationship to you, or the length of time that you and the EU citizen were residing at the address in question” would appear to go too far in terms of what is required under Art.3(2)(a) when one has regard to the various language versions of that provision.”

             (vi) The Trial Judge states –

“even if one has regard solely to the English language meaning of ‘household’ that term is typically understood to embrace (a) a single person or group of people who regularly reside together  in the same accommodation and who share the same catering arrangements; However, (b) it is of course possible for a single dwelling to contain multiple households if meals or living spaces are not shared. It seems to the court, with respect, that the Minister in his reasoning has had regard solely to conception (a) of what comprises a household and no regard to conception (b)”

(3) Did the Minister act unreasonably and/or in breach of fair procedures in concluding that the second applicant had failed to submit satisfactory evidence that he was a dependent of the first applicant and/or a member of his household, without adopting procedures which would have enabled the second applicant to know what evidence he was required to adduce in order to establish same?   The trial judge answered this –

“Yes. The court does not consider that a approach by a decision-maker which amounts, in effect, to ‘Put in an application, I will not tell you even at the most general level, not even by way of non-binding guidance, what type of material I am looking for, but I will let you know if I do not see it' is reasonable or entails fairness of procedure. It is unreasonable and unfair that the Minister should know what, at a general level, he is looking for when it comes to assessing applications generally, but will give no sense to applicants as to what it is that he is looking for, i.e. the unreasonableness/unfairness flows not from the Directive or the Regulations per se but from the closeted manner in which the Minister has elected to discharge his obligations to the detriment of applicants who, as a consequence of his approach, are unfailingly operating to some extent ‘in the blind' when making an application such as that at issue here.”

The Grounds of Appeal can be summarised as follows:

1)      The trial judge erred in law in finding that the Minister erred in his interpretation and/or application of the relevant provisions of the European Communities (Free Movement of Persons) Regulations 2015 in his consideration of Mr Miah’s application for a residence card.

2)      The trial judge erred in law in finding that the Minister acted unreasonably and/or in breach of EU law and/or in breach of the 2015 Regulations in determining that Mr Miah had failed to provide sufficient evidence that he was a member of his brother’s household and in questioning whether the Minister had paid due regard to Article 3(2).

3)      The trial judge erred in law in his findings regarding the proper meaning of the term ‘household’ as established by the Directive and implemented by the State under the 2015 Regulations. The court did not have to interpret the said term as it was not an issue between the parties.  The divergence in linguistic texts was not a matter addressed by the parties.  The trial judge also erred in the consequences for the Impugned Decision of the meaning he attributed to ‘household’.

4)      The trial judge erred in law in finding that the Minister acted unreasonably or in breach of fair procedures in concluding that Mr Miah had failed to produce satisfactory evidence that he was a dependent of Mr. Shishu or a member of his household, without adopting procedures which would have enabled Mr Miah to know what evidence he was required to adduce in order to establish same.  No such obligation arises under EU or Irish law.

“The trial judge erred in finding that the Respondent did not act unreasonably and/or irrationally in finding that he (the Respondent)  was not satisfied that the second named applicant was financially dependent on the first applicant in the United Kingdom.

Legal Principles

(i) Whether the High Court was correct in finding the Minister erred in his application of the relevant provisions of the 2015 Regulations.

(ii) (a) Whether the High Court erred in its findings regarding the proper meaning of the term ‘member of the household’ as established by the Directive and implemented in the State under the 2015 Regulations, and

(b) Whether the trial judge was correct in finding that the Minister acted unreasonably and/or in breach of EU law and/or in breach of the 2015 Regulations in determining that Mr. Miah had failed to provide sufficient evidence that he was a member of Mr. Shishu’s household.

(iii) Whether the High Court was correct in finding the Minister acted unreasonably and/or in breach of procedures which would enable an applicant to know what evidence they are required to adduce in order to satisfy the Minster of the bases for their application.

(iv) (a) Whether the Minister adopted the correct legal test for determining whether Mr. Miah was ‘dependent’ on Mr. Shishu, and

b) Whether the High Court was correct in finding that the Minister did not act unreasonably and/or irrationally in finding that he was not satisfied that Mr. Miah was dependent on Mr. Shishu in the United Kingdom.

 (i) Whether the High Court was correct in finding the Minister erred in his application of the relevant provisions of the 2015 Regulations.

“(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 a complete examination of the personal circumstances of the applicant…” [Emphasis added].

“Further to your correspondence the Regulations and the Directive allow for an extensive examination of the personal circumstances of the applicant”.

This reliance however would seem to be misplaced, because it adopts the wording of the second limb in Reg.5(3) which, on the Minister’s case, only comes into play once the Minister is satisfied the applicant is a person to whom Reg.5(1) applies.

Reliance was also placed on further references to Reg.5(1) and (2) in the ‘Recommendation Submission’ of 27 September 2018 and the use of similar terminology in the ‘Review Officer Decision’ and letter of notification, both dated 12 October, 2018, reflecting failure by the applicant to satisfy the Minister on dependency or membership of the Union citizen household as required by Reg.5(1).

“By bringing reg.5(5)(a) criteria to bear in a reg.5(2) assessment of status under reg.5(1) and by concluding, as he did, that there was a want of evidence that is required under reg.5(5)(a), the Minister erred in law in identifying a deficiency of documentation provided in respect of matters that did not properly arise for consideration.”

It was submitted that the ‘Review Officer Decision’ and the Impugned Decision clearly involved assessment of dependency and household membership based on the evidence submitted, and did not make any reference to Reg.5(5)(a) criteria, which it will be recalled relate inter alia to –

 “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”.

Respondent’s Submission

          “2. The Second Applicant’s application for an EU residence card was refused by the           Respondent at first instance in accordance with Regulation 5(3) of the 2015      Regulations. In the Respondent’s decision of the 12^th October 2018, the decision of the      9^th May 2017 was upheld.

            3. The extent of dependency and duration of cohabitation are matters which arise for             consideration under Regulation 5(5) of the 2015 Regulations which in turn only arises       for consideration in the context of an extensive examination carried out pursuant to     Regulation 5(3). It is therefore submitted that the Respondent did not err in law in           refusing    the second Applicant’s application. It was refused lawfully in accordance with Regulation 5(3) of the 2015 Regulations.

            4. Indeed, in correspondence to the Applicant dated the 6^th June 2017 the Respondent      refers to the Regulations and the Directive allowing “an extensive examination” of        the personal circumstances of the Applicant and therefore it is clear that the decision   was made under Regulation 5(3).”

(ii) (a) Whether the High Court erred in its findings regarding the proper meaning of the term ‘member of the household’ as established by the Citizens Directive and implemented in the State under the 2015 Regulations, and

(b) Whether the trial judge was correct in finding that the Minister acted unreasonably and/or in breach of EU law and/or in breach of the 2015 Regulations in determining that Mr. Miah had failed to provide sufficient evidence that he was a member of Mr. Shishu’s household.

Minister’s Submissions

Respondent’s Submissions

Discussion

“54. …what has to be identified is the household of the Union citizen, and thereafter whether the applicant for permission to enter and remain is a member of that household.  The centrality of the Union citizen is what is in issue, not whether the Union citizen heads up the group or governs the living arrangements within the dwelling.  Insofar as the phrase ‘head of the household’ is used in the authorities from England and Wales, it seems to me that it was used more as a matter of convenience or as a colloquial expression. What is required is that the core members of the household are to be identified for the purpose of identifying the factual link between the family unit thus defined or identified and the non-Union citizen who seeks to derive a right therefrom.”

Baker J found helpful the Opinion of Advocate General Bot in Secretary of State for the Home Department v. Rahman (Case C-83/11), in several respects –

(1) that the provisions of the Citizens Directive must be given a teleological interpretation having regard to their objective to promote the primary and individual right of the Union citizen to move and freely reside with the territory of the Member State;

(2)  that “the interpretation of national rules must respect the autonomous meaning of the Citizens Directive as a matter of EU law and uniform interpretation throughout the Member States is to be achieved” (Baker J. at para. 58);

(3) with reference to Art.3(2), that the Citizens Directive imposes upon Member States an actual obligation to adopt the measures necessary to facilitate entry and residence for persons coming within its scope, and which entail procedural obligations which require that the Minister carry out “an extensive examination” of the personal circumstances of an applicant, and also that the Member State justify the denial of entry or residence, adding “The Advocate General was, however, of the view that what in Ireland are termed ‘permitted family members’ do not benefit from a presumption of admission” (Baker J. para. 59); and

(4) at para. 60 Baker J said:

“60. Paragraph 75 of the opinion presents a helpful explanation of the concept of family life in the context of the interpretation of article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.  He described ‘family life’ in that context as:

‘characterised by the presence of legal or factual elements pointing to the existence of a close personal relationship, which makes it possible, for example, to include, under certain circumstances, ties between grandparents and grandchildren or ties between brothers and sisters.’” [Emphasis added]

(i) the circumstances in which parties may cite and rely on alternative language versions of Directives, Regulations or other EU instruments; and

(ii) the true meaning to be given to the term “member of household” in the Directive, and in the Regulations applying that term.

 “25. The test as to who is a member of the household of an EU citizen could depend on whether that person is the principal person or head of the household. While this is an old-fashioned term, it may none the less be of some use in distinguishing family relationships that are covered by the Directive and those which are not. What are the criteria is the issue. Just because cousins are close, as many cousins are emotionally and in terms of time spent together while growing up, does that necessarily mean that if one is an EU citizen the others are members of that citizen’s household? In Ireland, it is common in the older generation, over 50, to have two or even three dozen first cousins. Where people have multiple marriages, that number may be equally large for cultures which support such customs.

26. It is perhaps to be noted that family members in the Directive centre on the nuclear family, two parents and their children. Children grow up and it is possibly significant that aged 21, unless there is dependency, perhaps due to health issues or because of extended study funded very substantially by the parents, the state of childhood ceases. Children do not then move as of right with their parents. What is the position of cousins in middle age? It may be relevant to question whether these could constitute permitted family members where both are in good health and capable of working? The concepts of family members and permitted family members perhaps should be considered as a package of legislative rules and not in isolation.

27. Reference to other languages may or may not be helpful, a literal translation is possible but the resonance in that language may be lost. This Directive illustrates this. The phrase that someone is a member of the household of an EU citizen: in German is “oder der mit ihm im Herkunftsland in häuslicher Gemeinschaft gelebt hat” which literally says or who lives with him in the same house in their country of origin; in Greek “ή ζει υπό τη στέγη του στη χώρα προέλευσης” which literally says or lives under his roof in the country of origin; in French, perhaps most eloquently “si, dans le pays de provenance, il est à charge ou fait partie du ménage du citoyen de l'Union bénéficiaire du droit de séjour à titre principal” declaring that the right emerges from dependency or being part of the household; in Italian “se è a carico o convive” which might literally only mean people living together; and in Spanish “o viva con el ciudadano de la Unión beneficiario del derecho de residencia con carácter principal”, literally saying lives with the Union citizen beneficiary with the principal right of residence.

28. What is a household may not be capable of a precise definition. But it is an EU-wide concept which requires clarification. Perhaps that may be best done by a set of criteria, the existence of which may enable national courts to achieve a uniform interpretation. One criterion which is important is time. The length of time spent in the household of the EU citizen is important. This may indicate a transitory or a settled embeddedness in the household of the EU citizen. But does there have to be a principal person or head of a household, who is the EU citizen, as opposed to friends or siblings sharing accommodation? Could everyone sharing quarters with everyone else be mutually members of that other’s household where one is an EU citizen? Hence, another important criterion may be purpose. Where a cousin comes to a household for a purpose, as is very common in Ireland, for instance to study at a university, or to assist for a time with child rearing, that relationship is not settled but is dependent on externals; how long a course will last or when a child may be ready to go to school. A further criterion may be intention. Is there a settled purpose in the EU citizen to accept a non-EU citizen into their household as a member of the household or was there some transitory or task-specific reason behind the non-EU citizen being there? What also may be important as a criterion is the relationship as between those sharing accommodation, be they cousins or friends or work colleagues. Who is the dominant party, is it the EU citizen? Or is it the non-EU citizen. By dominant, here might be meant with authority to accept the non-EU citizen into the EU citizen’s household. Could that EU citizen ask the non-EU citizen to leave? On the other hand, is this a house or flat sharing arrangement, many of which endure for years because it suits both parties, but does that make each person sharing accommodation a member of the household of the other, and on what basis? Finally, it is suggested as a possible criterion that since the purpose of the Directive is to facilitate free movement, it has to be asked if Mr Subhan, as an EU citizen, moves from Britain to Ireland, how would it inhibit him if Mr Ali did not come with him? If an inhibition is alleged, is this because of a sexual relationship, which perhaps is based on another legal aspect of being an “enduring relationship properly attested” equivalent to espousal and hence not relevant here, or because of emotional ties (how hard are they to break?) or because an arrangement suited, if so why and for what reason and over what time?”

Reference to different translations

“32. It is only at the stage of considering a reference that it should be necessary to consider any possible lack of clarity in other EU language versions. The version of any Directive or Regulation is operative in English or in Irish. These are the official languages. That version has equivalence and equal validity to any other language version. It is to import complication where it is not necessary to view this matter the other way around as if to say that a national court can do better in interpretation through a mental exercise placing it in another country and using another language which is not the court’s máthairtheanga, mother tongue, and in respect of which a court cannot know the resonances of that language or how a phrase carries a meaning beyond the literal.

Unreasonableness

“43 ….whether Art.3(2) of Directive 2004/38 must be interpreted as meaning that third-country nationals envisaged in that provision must have available to them a redress procedure whereby matters of both fact and law may be reviewed by the court, in order to dispute a decision to refuse a residence authorisation taken against them.”

It was in this broad context, which in my view is applicable to the present judicial review, that the court stated –

In my view the Minister also wrongly failed to assess the application in the round when considering the duration  of Mr. Shishu and Mr. Miah’s cohabitation, the fact that this continued in three different dwellings/locations, and whether it was their intention to continue to live together in a durable family relationship (again, assuming that to be a relevant consideration).  Relevant to this is the absence of any evidence to suggest a temporary stay, such arrival in the UK on a student visa might suggest

(iii) Whether the High Court was correct in finding the Minister acted unreasonably and/or in breach of procedures which would enable an applicant to know what evidence they are required to adduce in order to satisfy the Minster of the bases for their application.

The respondent’s submissions

“14. The supporting documents required by the competent authorities for the issuing of a registration certificate or of a residence card should be comprehensively specified in order to avoid divergent administrative practices or interpretations constituting an undue obstacle to the exercise of the right of residence by Union citizens and their family members.”

“24. In the light both of the absence of more specific rules in Directive 2004/38 and of the use of the words ‘in accordance with its national legislation’ in Article 3(2) of the directive, each Member State has a wide discretion as regards the selection of the factors to be taken into account.  None the less, the host Member State must ensure that its legislation contains criteria which are consistent with the normal meaning of the term ‘facilitate’ and of the words relating to dependence used in Article 3(2), and which do not deprive that provision of its effectiveness.”

“It is ultimately a matter for your client as to what information he wishes to put before the Minister in support of his application”.

The Minister thus declined to clarify the documentation required.

“…It is unreasonable and unfair that the Minister should know what, at a general level, he is looking for when it comes to assessing applications generally, but will give no sense to applicants as to what it is that he is looking for, i.e. the unreasonableness/unfairness flows not from the Directive or the Regulations per se but from the closeted manner in which the Minister has elected to discharge his obligations to the detriment of applicants who, as a consequence of his approach, are unfailingly operating to some extent ‘in the blind’ when making an application such as that at issue here.” (para 9)

“55. There was no obligation on the Minister to provide the applicants, who were legally represented at all material times, with additional legal advice concerning the necessary requirements to obtain a residence card as a permitted family member.  Those requirements are set out in the Citizens’ Rights Directive. [The Minister’s obligations thereunder]…cannot extend to the provision of an advice on proofs.”

Barrett J considered that Keane J. was there stating that there was no obligation on the Minister to provide additional legal advice or  advice on proofs– something that Barrett J agreed with -  but that Keane J was not asked to address the particular issue raised in the present case which he identified as “[D]oes an unreasonableness or unfairness present where there is an absence of even generic guidance as to what it is the Minister looks for in an application?”

“42. The Minister asserts that the requirements which he imposed on the second Applicant could not be described as obscure or unexpected. However, they were obscure and unexpected. They bore no direct relationship with the facts put forward by the second Applicant who had submitted that he and his brother had lived with his brother’s ex-wife and then alone. The refusal of his application on the basis of his failure to provide documentary evidence regarding the other people living in his home and his relationship to them is incomprehensible in that context. To date, the Minister has been unable to offer any suggestion as to how a homeowner could prove that no one other than he and his brother lived in his home. How was the second Applicant to prove a negative? The documentary requirement imposed in that regard was entirely obscure. Similarly, the Minister refused the application on the basis that the second Applicant had not submitted information regarding his relationship with people who the Applicants say do not exist. The second Applicant had stated that no one lived with him and his brother other than his brother’s ex-wife, whose relationship with the second Applicant is self-evident and is also documented by means of the Applicants’ birth certificates and the first Applicant’s divorce decree. It is obviously farcical to suggest that the second Applicant could submit evidence of his relationship with non-existent people.”

The Minister’s submission

Discussion

 “There is now some jurisprudence in the domestic courts, in the Court of Justice, and in the courts of England and Wales regarding the interpretation of those terms, and it could be said that undue specificity can make a general transposing instrument too narrow or too broad to be a correct transposition, and that sometimes general language is resilient.” 

Baker J then stated in Safdar–

“83. Having regard to the fact that the form of transposition and the method by which Member States engage with the individual application is left to the national authorities, I cannot accept the argument made by the appellant that the transposing instrument is required, as a matter of EU law, to contain more concrete and specific details of the type of matters that might be taken into account in assessing whether a person is dependent on or a member of a household of a Union citizen.

84. Indeed, it seems to me that having regard to the requirement that there be a harmonious and consistent interpretation of the Citizens Directive throughout the Member States, a definition containing more detail might cause discordance. That factor is not determinative but is a factor of note.”

“85. …The requirement from that decision is that the criteria be consistent with the approach of the Citizens Directive that free movement rights be facilitated or supported by the approach of the Member States to the entry and residence of family members, and I do not consider that the decision means that the publication of detailed and particularised criteria is necessary for proper transposition.”

“87. Finally, the INIS published guidelines in 2015 which set out details of the kind of proofs that may be required in an application for visas by a permitted family member of Union citizens. Those guidelines emphasise that documentary evidence is required which demonstrates the truth of an assertion of dependence or membership of a household. The types of supporting document is explained. Proof that the Union citizen is exercising free movement rights in Ireland or intends to exercise those rights at the time of the arrival of a permitted family member in Ireland is also required. Dependence is explained by reference to the test in Jia v. Migrationsverket ( Case C-1/05), ECLI:EU:C:2007:1, and it must exist at the time of the application and not be created by the moment of entering the State. Reference is made to the fact that merely living under the same household ‘does not count’ as proof of membership of a household.

88. Further, the application form EU1A is detailed and, on its face, requires evidence regarding the matters that fall for consideration by the deciding body.

89. These guidelines, in my view, offer considerable assistance to application under the scheme of the Citizens Directive.”

“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 this 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.”

(iv) (a) Whether the Minister adopted the correct legal test for determining whether Mr. Miah was ‘dependent’ on Mr. Shishu, and

b) whether the High Court was correct in finding that the Minister did not act unreasonably and/or irrationally in finding that he was not satisfied that Mr. Miah was dependent on Mr. Shishu in the United Kingdom.

Discussion – the test of dependency

“35. According to the case-law of the Court, the status of ‘dependent’ family member is the result of a factual situation characterised by the fact that material support for that family member is provided by the Community national who has exercised his right of free movement…

36. The Court has also held that the status of dependent family member does not presuppose the existence of a right to maintenance, otherwise that status would depend on national legislation, which varies from one State to another (Lebon, paragraph 21). According to the Court, there is no need to determine the reasons for recourse to that support or to raise the question whether the person concerned is able to support himself by taking up paid employment. That interpretation is dictated in particular by the principle according to which the provisions establishing the free movement of workers, which constitute one of the foundations of the Community, must be construed broadly (Lebon, paragraphs 22 and 23).

37. In order to determine whether the relatives in the ascending line of the spouse of a Community national are dependent on the latter, the host Member State must assess whether, having regard to their financial and social conditions, they are not in a position to support themselves. The need for material support must exist in the State of origin of those relatives or the State whence they came at the time when they apply to join the Community national.

…

40.  When exercising their powers in this area Member States must ensure both the basic freedoms guaranteed by the EC Treaty and the effectiveness of directives containing measures to abolish obstacles to the free movement of persons between those States, so that the exercise by citizens of the European Union and members of their family of the right to reside in the territory of any Member State may be facilitated (see, by analogy, Case C‑424/98 Commission v Italy [2000] ECR I‑4001, paragraph 35).

41. With regard to Article 6 of Directive 73/148, the Court has held that, given the lack of precision as to the means of acceptable proof by which the person concerned can establish that he or she comes within one of the classes of persons referred to in Articles 1 and 4 of that directive, it must be concluded that evidence may be adduced by any appropriate means (see, inter alia, Case C‑363/89 Roux [1991] ECR I‑1273, paragraph 16, and Case C‑215/03 Oulane[2005] ECR I‑1215, paragraph 53).

43.  In those circumstances, the answer to Question 2(a) and (b) must be that Article 1(1)(d) of Directive 73/148 is to be interpreted to the effect that ‘dependent on them’ means that members of the family of a Community national established in another Member State within the meaning of Article 43 EC need the material support of that Community national or his or her spouse in order to meet their essential needs in the State of origin of those family members or the State from which they have come at the time when they apply to join the Community national. Article 6(b) of that directive must be interpreted as meaning that proof of the need for material support may be adduced by any appropriate means, while a mere undertaking from the Community national or his or her spouse to support the family members concerned need not be regarded as establishing the existence of the family members’ situation of real dependence.”

Having referred to these passages Faherty J. observed –

“66. In essence, the ECJ held that dependency for the purposes of Directive 73/148/EEC was established if the family member 'needs the material support of [the] Community national or his or her spouse in order to meet their essential needs in the State of origin'.”

She next considered the decision in Reyes (Case C-423/12), which concerned the Citizens Directive and related to an adult child seeking residence in Sweden.  The ECJ observed –

“21. That dependent status is the result of a factual situation characterised by the fact that material support for that family member is provided by the Union citizen who has exercised his right of free movement or by his spouse (see, to that effect, Jia, paragraph 35).

22. In order to determine the existence of such dependence, the host Member State must assess whether, having regard to his financial and social conditions, the direct descendant, who is 21 years old or older, of a Union citizen, is not in a position to support himself. The need for material support must exist in the State of origin of that descendant or the State whence he came at the time when he applies to join that citizen (see, to that effect, Jia, paragraph 37).

23. However, there is no need to determine the reasons for that dependence or therefore for the recourse to that support…

24. The fact that, in circumstances such as those in question in the main proceedings, a Union citizen regularly, for a significant period, pays a sum of money to that descendant, necessary in order for him to support himself in the State of origin, is such as to show that the descendant is in a real situation of dependence vis-à-vis that citizen.

25. In those circumstances, that descendant cannot be required, in addition, to establish that he has tried without success to find work or obtain subsistence support from the authorities of his country of origin and/or otherwise tried to support himself.

26. The requirement for such additional evidence, which is not easy to provide in practice, as the Advocate General noted in point 60 of his Opinion, is likely to make it excessively difficult for that descendant to obtain the right of residence in the host Member State, while the facts described in paragraph 24 of this judgment already show that a real dependence exists. Accordingly, that requirement is likely to deprive Articles 2(2)(c) and 7 of Directive 2004/38 of their proper effect.”

“73. In Jia, there is no reference to it being a requirement of dependency that it was impossible to live at a 'subsistence' level if financial support from the EU citizen or his or her spouse was not maintained. The Jia test does not require that the family members have to be totally dependent on the EU citizen.”

Faherty J. thus rejected as valid in that case wording that is very similar to that adopted in the Initial Decision in the instant case.

“32.…the appeal decision maker was, at a minimum, required to identify the definition, such as it is, of the concept of dependence as identified in the Jia case.  Further the official was required to apply that test to the assertions and facts advanced on behalf of the applicants.  Any lawful analysis of a claim of dependence arising under the Citizens Directive must ask a fundamental question: is financial assistance given by a Union citizen and/or his spouse to a qualifying person to meet their essential needs?  Nothing short of that analysis will suffice.

…

50. The decision makers repeatedly failed to refer to the proper test by which dependence should be evaluated under EU law.  The applicant made the case that the Cairo based family was dependent upon the Irish family for the essentials of life.  Though the officials engaged with this concept, they never set out the Jia test, even in the decisions taken in 2013.”

I respectfully agree with this analysis; the need for the decision to refer to the test or concept applied is necessary to show that the correct test is applied to the facts, and to explain the basis upon which the decision is reached.

“No evidence has been provided to suggest that, had he not been in receipt of these cash transfers, the applicant would not have been able to support himself in Bangladesh”.

In relation to the financial transfers from Mr. Shishu to Mr. Miah in the UK – and it is at least accepted that he did “receive some small financial transfers” – it is stated:

“No evidence has been provided to suggest that, had he not been in receipt of cash transfers from his brother, the applicant would not have been able to support himself in the UK”.

It is also accepted that Mr. Miah received “regular, small transfers from his brother while in this State”, but –

“Again, however, no evidence has been provided to suggest that he would not be able to support himself in Ireland if he were not in receipt of these transfers.”

Conclusion

Costs

Result:     Cross-Appeal Allowed