The Court of Appeal has set aside the High Court order refusing judicial review relief to four family members whose Irish residence card applications were rejected. It found that the Minister applied the wrong legal test for dependence and that the reasons given for the refusals were inadequate.
The applicants were the father-in-law and mother-in-law of a British EU citizen, two of her brothers-in-law and an uncle-in-law. They applied for residence cards after arriving in Ireland in December 2014. The Minister refused the applications, and review decisions issued in March 2017 affirmed those refusals. The applicants then sought judicial review. The High Court refused relief in July 2019, and they appealed.
The Court of Appeal’s judgment, delivered by Ms Justice Faherty on 10 November 2021, addressed the appeals of the first, second, third and fifth applicants. The fourth applicant had since received a residence card on the basis of his marriage to a UK citizen; he continued to appeal on costs.
The court held that the dependence test under EU law asks whether applicants needed material support to meet their essential needs in the country they came from. It does not require proof that they would be unable to live at subsistence level without support. The review officer’s decisions for the first and second applicants used that more demanding subsistence test. For the third, fourth and fifth applicants, the review decisions referred to “sole” dependence. The court found that the Minister had not applied the correct legal test to those applicants either.
The Court of Appeal also found that the High Court judge went beyond judicial review when he treated the third to fifth applicants’ claims as turning on whether their dependence was genuine or contrived. The Minister’s decisions and supporting records did not show that she had assessed the applications on that basis. The judge’s role was to assess the legality of the Minister’s decisions, not to supply alternative reasons for them.
The applicants also challenged the Minister’s assessment of whether the third to fifth applicants belonged to the EU citizen’s household before coming to Ireland. The Court of Appeal rejected that appeal ground because the issue had not been actively pursued before the High Court.
The court set aside the High Court order refusing the first, second, third and fifth applicants certiorari, and remitted their applications to the Minister for reconsideration. It also vacated the order refusing costs. The court proposed that the applicants receive their appeal costs, subject to either party seeking a different order within 21 days of electronic delivery of the judgment.