The Court of Appeal has dismissed Raymond Holland’s challenge to the refusal of a residence card for his stepdaughter, holding that her claimed dependency had to be assessed at the time she joined him, including whether she was dependent in the country she came from.
The judgment, delivered by Mr Justice Binchy on 31 March 2023, concerned a review decision by the Minister for Justice refusing the card. Ms Tháo, who was 29 when she arrived in Ireland from Vietnam in June 2016, applied as a dependent of Mr Holland, a UK national resident in Ireland, and his wife, an Irish citizen. She had entered on a 90-day tourist visa and had undertaken to leave before it expired.
The Minister first refused the application in March 2017, saying there was insufficient documentary evidence of dependency. On review, the Minister upheld that refusal in March 2019. The decision cited the absence of evidence of dependency before Ms Tháo arrived, and said money transfers alone did not establish an ongoing pattern of reliance for the essentials of life. Mr Holland sought judicial review, arguing, among other things, that the rules did not require an adult descendant to prove dependency in her country of origin.
The Court of Appeal considered whether the dependency test for a qualifying family member over 21 required proof of need for material support in the country from which the person came. It noted that the European Court of Justice had made such a statement in the Reyes case, while observing that the point was arguably not necessary to the decision there. The court also acknowledged that the earlier Jia decision relied on provisions from a prior EU directive.
Despite those qualifications, the court concluded that dependency must be assessed when the descendant accompanies or joins the EU citizen. It said that assessment necessarily includes considering whether the person was dependent in the country she came from. The court rejected the appellant’s reliance on the English Court of Appeal decision in Pedro and distinguished the European Court of Justice’s decision in Metock, which concerned when a person became a family member, rather than when dependency had to be established.
The court did not decide whether the Minister was wrong to find that the evidence of support in Ireland was insufficient. Having rejected the challenge to the requirement for proof of dependency in the country of origin, it said that second issue did not need to be considered.
The judgment noted that the Minister had not requested evidence of dependency in Vietnam during the application process, although the decision later relied on its absence. It also said it would be fairer and more efficient to explain from the outset that evidence was required of dependency when the applicant joined the EU citizen, usually including evidence from the country of origin.
The Minister was provisionally considered entitled to costs. Mr Holland had 14 days from judgment to seek a short further hearing on costs. The judgment does not state a final costs order.