The High Court has quashed a decision refusing a Nigerian teenager’s application for residence in Ireland, finding that the Minister applied too high a test to his mother’s self-employment evidence.
In a judgment delivered on 6 March 2014, Mr Justice Barr said the question was whether the mother’s work was “effective and genuine”, rather than whether her business was a viable trading concern providing sufficient income to support her and her dependants.
The applicant, Prince Edos, sought judicial review of the Minister’s decision of 30 January 2013. His mother, an Austrian and Nigerian citizen, had applied for a residence card on his behalf. She initially worked for Cyber Academy and later set up a retail business, Vivi. G & Sons Enterprises, on Parnell Street in Dublin.
The Minister refused the application after concluding that the material supplied did not show that the business was viable or generating sufficient income. The refusal letter said its bank statements did not show transactions or funds indicative of a viable business, and that requested up-to-date evidence had not been provided.
The applicant argued that the Minister had used the wrong legal test. Citing European Court of Justice decisions, his counsel submitted that self-employment could qualify if the activity was genuine and effective, even where earnings were below minimum levels or supplemented by other support. The judgment reviewed those authorities, which distinguish genuine economic activity from work that is purely marginal and ancillary.
Justice Barr concluded that the Minister had set the bar too high by requiring proof of a viable business and sufficient income. He said the Minister should consider the business registration, registration with the Revenue authorities, start-up bank accounts and purchase and sales records when reviewing whether the mother’s activity was effective and genuine.
The court quashed the 30 January 2013 decision and directed that the application be referred back to the Minister for reconsideration. It did not itself decide whether the mother’s business met the applicable test or grant the applicant residence.