The High Court has granted a mother and her young daughter permission to seek judicial review of residence refusals, finding arguable issues about whether they formed a household and how the mother’s financial resources were assessed.
Mr Justice Cooke made the ruling on 23 July 2012, on an application for leave made ex parte. The underlying decisions, in letters dated 18 April 2012, refused residence applications under the European Communities (Free Movement of Persons) Regulations and EU law.
The daughter, Belinda Wang, was born in 2009 and is a Hungarian citizen. Her mother, Lili Wang, is a Chinese national who had previously been permitted to reside in Ireland as the wife of a Hungarian citizen. The judgment records that the husband returned to Hungary in early 2010. The mother said he had no relationship with their daughter and did not contribute to her care.
The mother argued that she was the daughter’s primary carer and that the child’s EU citizenship supported her right to remain. The Minister’s April refusal said the mother was not a permitted family member because she was neither dependent on the child nor a member of the child’s household. It also rejected residence under the Chen judgment, concluding that the mother lacked sufficient resources and private medical insurance, with support coming from her partner. The High Court said the letter did not appear to dispute that the insurance condition was met, and found it arguable that the Minister had applied the resources requirement incorrectly.
The judge also found it arguable that the mother could qualify as a member of the Hungarian child’s household, despite the child being only three. He did not decide that either argument was correct. He granted leave to the mother and daughter to challenge the decision on those grounds and on specified general grounds. The court said any successful challenge to the decision would require the Minister to make a new decision, so separate orders compelling action were unnecessary.
The third applicant, the mother’s partner, was also refused leave. The judge found no arguable case that he qualified as a permitted family member or could rely on the Chen principle, as he was neither the child’s parent nor a member of her household in China. The ruling left open the possibility that his position, and the family unit’s circumstances, could be considered under Article 8 of the European Convention on Human Rights.