The High Court has quashed the decision on Ahamed Badshah’s visa appeal and sent it back to the Minister for Justice and Equality for fresh consideration. It refused his mother Haseena Badshah’s application for judicial review.
Mr Justice Max Barrett delivered the judgment on 21 December 2018. The applications followed refusals of visa applications made on 25 July 2016 under the European Communities (Free Movement of Persons) Regulations 2015, and unsuccessful appeals.
The appeal decisions said both applicants had failed to prove they qualified as beneficiaries under the EU free movement directive. In Ahamed’s case, the court said that conclusion was wrong: as a direct descendant under 21, he was a qualifying family member under regulation 3(5), and therefore had an advantaged status under the regulations. The court noted that no dependency test applied to him for that status, although the appeal decision appeared to have applied one. It ordered his appeal to be reconsidered on the correct basis.
Haseena, an Indian national over 21, had to establish dependency on her father, Akbar Badshah, to qualify as a family member. The Minister concluded she had not done so. She argued that the decision was irrational given the volume of material submitted, lacked adequate reasons, and should not have been made without the Minister seeking further input during the decision process.
The court rejected those arguments. It said the quantity of material did not determine dependency and that the Minister could conclude the evidence did not establish it. Although the reasons were brief, they clearly identified the lack of sufficient documentation and indicated that stronger documentation would be needed in a further application. The court also said applicants must put forward their evidence; the Minister was not required to invite submissions about perceived deficiencies while deciding the application.
The judgment said there was nothing to suggest the Minister had failed to apply the added obligation of care appropriate to decisions that could have serious consequences for individuals’ rights. The order was limited to certiorari of Ahamed’s appeal decision and remittal for fresh consideration. Haseena’s application was refused.