A High Court judge has overturned the Minister for Justice's refusal of an Irish residency card for a Pakistani widow living here with her son.
Her son is a UK national, who came here more than 16 years ago and operates a business here.
The case centred on whether or not the Minister applied the correct test for dependency as identified in decisions of the High Court, Court of Appeal and the Court of Justice of the European Union.
Mr Justice Max Barrett found the Minister had not applied the correct test in failing to have any, or any proper regard, to the emotional and social dependence between Shakeel Ahmed Dar and his mother Mrs Kauser, a non-EU citizen aged in her 70s who has lived here since 2016 with her son, who came here in 2004.
The judge noted the Court of Appeal, in the case of K v the Minister for Justice, had stated the test for dependence is one of EU law and applicants for residency on the basis of dependence must show, in the light of their financial and social conditions, “a real, and not temporary” dependence on an EU citizen.
The Court of Appeal said the concept of dependence must be “interpreted broadly and in the light of the perceived benefit of family unity and the principles of freedom of movement”.
The Court of Appeal, in a recent judgment in the case of Shishu and Miah v the Minister for Justice, had said the K decision “puts beyond doubt” the correct interpretation of dependency. The judge said he himself had observed in a number of cases that, in order to decide whether relatives are dependent, a host member state must assess whether, having regard to their financial and social conditions, they are not in a position to support themselves.
Earlier, he noted the disputed refusal decision of August 2018, which upheld an earlier 2017 refusal of a residence card, had stated Mrs Kauser had provided little documentation to support her claim her son provides for all her needs – food, accommodation, clothing utilities, medical supplies and everyday necessities. While the Minister was entitled to reach a conclusion about a want of financial documentation/information in that regard, the court did not accept the Minister was unaware of the accommodation arrangements involving Mr Dar and his mother, the judge said.
The Minister had referred in the impugned decision to the provision of accommodation by Mr Dar, he said. The court did not accept, because a mother is living with her son, it follows she is dependent upon him, he added.
Among the questions to be asked in determining if a person is a dependent within the meaning of the Citizens’ Rights Directive and free movement regulations, is whether the needs being met are essential to life and the financial support is not merely “welcome”.
The test as to whether an alleged dependant has a real need for financial assistance was not whether they could survive without it, he said. In this case, the Minister erred not so much in what she did but what she did not do, he said.
She had erred in that she failed to have any, or any proper regard, to, and failed to reach a reasoned decision in respect of, the “emotional and social dependence” between mother and son.
There was no, or no proper consideration, of the social conditions presenting, he held. On foot of those and other findings, the judge said he would quash the Minister’s decision.
