The Court of Appeal has dismissed an appeal by Sheharyar Rahim Subhan and Asif Ali over the refusal of a residence card for Mr Ali, who sought to join his first cousin in Ireland under EU free movement rules.
The appeal concerned whether Mr Ali qualified as a “permitted family member” because he had been dependent on Mr Subhan or part of his household in the United Kingdom, where they had lived together. The court said the relevant assessment concerned the period before Mr Subhan exercised EU treaty rights in Ireland.
The Minister refused Mr Ali’s application in December 2015 and rejected a review in August 2016. The review decision accepted that the cousins had lived at the same UK address but said the evidence did not establish that Mr Ali was dependent on Mr Subhan or that Mr Subhan was the head of the household. The High Court refused judicial review in 2018, and the cousins appealed.
In a judgment delivered on 19 December 2019, Ms Justice Baker said the legal test did not require identifying a formal “head” of the household. The question was whether the household was factually that of the Union citizen and whether the applicant was a member of it. Living under the same roof, by itself, was not enough. The court said the living arrangement should be more than convenient cohabitation and should show a durable, coherent unit connected to the Union citizen’s family life. It also had to be relevant to whether the absence of the family member could materially impede the citizen’s free movement.
The judgment noted that Mr Subhan said he supported his cousin’s living expenses and education while they were in the UK, and that family in Pakistan expected him to look after Mr Ali. But the court said that asserted responsibility to help his cousin study and establish independent living did not demonstrate that Mr Ali’s continued presence was integral to Mr Subhan’s family unit or affected his exercise of free movement rights.
On dependency, the Court of Appeal found the Minister had engaged with the documents provided. The evidence included money transfers and bank statements, but did not explain Mr Ali’s financial means and needs over the relevant period or show that he could not meet his essential needs without his cousin’s support. The court upheld the High Court’s conclusion that the Minister had not failed to consider the evidence or give adequate reasons.
The court dismissed all grounds of appeal. The decision left in place the refusal of judicial review; it did not grant Mr Ali a residence card.