The High Court quashed refusals of visa applications by an Afghan woman and her children after finding no factual basis for the Minister for Justice and Equality’s conclusion that their UK-based sponsor was abusing EU free-movement rights.
Mr Justice Max Barrett delivered the judgment on 11 July 2019. The applicants were Najeeba Khan, her three minor children, and her husband, Mohammed Tahir Khan. The children sued through their father and next friend. The judgment described Mr Khan as a UK national living in London who said he intended to work in Ireland. His wife and children, Afghan nationals resident in Afghanistan, had applied for visas there to accompany him.
The Minister refused the applications on the basis that Mr Khan was not genuinely and effectively seeking to exercise free-movement rights, and that his move to Ireland was intended to create conditions for the family to gain derived residence rights in the UK. The court said the material before the Minister did not support either conclusion. Although Mr Khan had not arranged a job, accommodation or schooling in Ireland, the judge said he was not legally required to do so before exercising those rights.
The court also rejected the suggestion that the family’s application process showed an artificial arrangement. It noted that the regulations contemplate qualifying family members entering Ireland with an EU citizen, without requiring the citizen to arrive first. The judgment said a possible long-term objective of moving lawfully to the UK would not itself be improper, and distinguished an earlier case in which the evidence included indications of an intention to live there and what the court described as a false construct.
The judge accepted that the Minister could scrutinise applications for abuse of rights and that a surge in applications from countries including Afghanistan and Pakistan justified careful scrutiny. But the general increase could not, by itself, establish abuse in this family’s case. Scrutiny also had to respect EU rules’ objectives of maintaining family unity and facilitating family members’ free movement.
The court accepted that the application turned on abuse of rights and did not decide the applicants’ further legal arguments. It nevertheless noted that the Minister had identified no legal or public-policy reason why the marriage could not be recognised for visa purposes, given that it could have been entered into in Ireland with court consent. The court granted the orders of certiorari sought, quashing the visa refusals.