The High Court quashed two visa refusal decisions after finding that the Minister for Justice applied the wrong test when assessing whether two Pakistani relatives were dependent on EU citizens living in Ireland.
In a judgment delivered on 27 October 2017, Ms Justice Faherty said the Minister’s test required the applicants to show that independent living at subsistence level would be impossible without support. That was too demanding under the EU law test, which asks whether relatives need material support to meet their essential needs in their country of origin.
The case concerned Mohammad Khan and his wife, Mahnaz Khan, both UK nationals and EU citizens, and Mohammad Khan’s parents, Mohammad Shumar Khan and Malka Khatoon, who are Pakistani nationals. The parents sought short-stay visas. The Minister refused their appeals on 6 October 2015, finding that the evidence did not establish dependency.
The applicants argued that the decisions gave insufficient weight to money transfers, including more than €19,000 sent by bank transfer, and wrongly treated a monthly pension received by Mohammad Shumar Khan as inconsistent with dependency. The Minister maintained that the transfers did not establish dependency without sufficient evidence of the parents’ own income, expenditure and living circumstances.
The judge held that receipt of a pension does not, by itself, prevent a family member from qualifying as dependent. She also found that the decisions’ language reflected the stricter test in a policy document on non-EEA family reunification, rather than the test established in EU case law.
The court did not accept every challenge. It agreed that applicants must present relevant evidence to support their claims and that the Minister was not required to make inquiries to strengthen their applications. It also rejected the argument that the amount transferred should, despite gaps in other evidence, have tipped the decision in the applicants’ favour. The Minister was entitled to seek proof that support was needed to meet essential needs.
The court concluded that the wrong test had affected the substantive finding that the parents did not qualify as beneficiaries under the EU directive. It granted leave to seek judicial review and, because the hearing was “telescoped”, granted certiorari quashing both decisions dated 6 October 2015. The judgment did not itself grant visas or determine that dependency had been proven.