Between:

“Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons: (a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependents or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen…” [emphasis added].

4. First and Second Applicants (Financial Dependency). The court recalls Case C-423/12 Reyes, para.24, where the Court of Justice observed that the payment of a sum of money “regularly, for a significant period to [a]…descendant, necessary in order for him to support himself in the State of origin, is such as to show that the descendant is in a real situation of dependence vis-à-vis that citizen” [emphasis added]. Here, there were regular transfers of money. The evidence as to such payments being “necessary…to support” rested on terse, self-serving statutory declarations as to this point. That said, a statutory declaration is a form of evidence, and might even be persuasive evidence when viewed in the round with such other evidence as is presented (see, inter alia, R. (on the application of SS) v. SSHD [2017] UKUT 164 (IAC), para.30 and R. (on the application of MK, a child by her litigation friend CAE) v. SSHD [2017] EWHC 1365, para.41). Although the Minister must have read the statutory declarations (the Impugned Decisions state that he considered all the documentation and information provided), it is clear that he did not understand them for what they were; otherwise he could not have stated that “You have not provided any documentary evidence to show that you are unable to meet your day to day expenses, or other evidence by way of proof of dependency and the extent of that dependency”. Documentary evidence in the form of the statutory declarations was provided; the Minister was free to place the weight on those declarations that he considered appropriate; however, he could not properly state, or proceed on the basis, that no documentary evidence was provided.

5. Third and Fourth Applicants (Financial Dependency). The third and fourth applicants clearly put forward that they are financially dependent (see Pleadings, p.144). Unfortunately this aspect of their appeal is not considered in the Impugned Decisions that concern them.

6. All Applicants (Household membership). The court does not accept that household membership was claimed on appeal. The element of the appeal documentation pointed to as raising this point (see Pleadings, pp.35, 90) is concerned with dependency, not with the household membership issue. The Minister is not required to fish through appeal documentation and consider whether some other ground of appeal can be divined from whatever point of appeal is expressly touched upon.

9. [2] Did the Respondent err in law and act irrationally and unreasonably in proceeding on the basis that the fifth applicant would have already to be present and established in the State before the visas could be granted? The court does not see that the Minister so proceeded.

10. [3] Was the respondent entitled to take into account the fifth applicant’s perceived motive for wishing to move to Ireland as a basis for refusing the appeals? The court does not see that the issue of motive features in the Impugned Decisions. Insofar as the Minister had regard to a surge in EU Treaty Rights applications from, inter alia, Pakistan, around the time of the applications at the heart of these proceedings, the court accepts that (a) the Minister is entitled to keep a watch out for possible abuses of rights (of course he is), and (b) the fact of that surge offers a perfectly reasonable basis for the Minister carefully to scrutinise applications within that surge so as to make sure that there is no abuse of rights presenting on the particular facts of any one case. However, such a general surge does not, in and of itself, offer a sound basis on which the Minister can properly reach a conclusion as to an abuse of rights in any one application where, on the facts of such application, there is nothing further (and here there is nothing further) in the factual evidence before the Minister to justify the conclusion that what presents is some form of abuse of rights. Moreover, in bringing legitimate careful scrutiny to bear, the Minister has to be careful not to bring so sceptical an attitude to bear as would place him in breach of the policy objectives of the Citizens’ Rights Directive, including e.g., recital 6, which provides that an objective of that measure is “to maintain the unity of the family in a broader sense”, and recital 8, which points to a desire on the part of member states as regards “facilitating the free movement of family members who are not nationals of a Member State”, or deprive the provisions of that Directive or the transposing regulations of their effectiveness (see in this last regard Case C-127/08 Metock, para.84). Without prejudice to the generality of the foregoing, the court notes that mention is made by the Minister of the fact that Mr Malik’s current residence in the United Kingdom and an accompanying observation that “It is reasonable to infer that the centre of his life is based in the United Kingdom”. The court admits to being slightly mystified as to why it should be notable that someone not yet in Ireland would at this time be living abroad and have the focus of his life abroad. All non-Irish EU nationals who are planning to move to Ireland will be living abroad before they move here, and many if not most of them will have their centre of life abroad before moving here.

11. [4] Did the Minister act in breach of statutory duty and in breach of EU law in failing to assess and determine whether the first to fourth applicants are or were members of the household of their EU citizen family member (the fifth applicant) in Pakistan? No. See para.6 above.

12. [5] Did the Minister act irrationally and unreasonably, having taken more than two years to determine the visa applications at first instance, in refusing the visa appeals partly on the basis that the fifth applicant had not yet made efforts to secure school places in the State for the third and fourth applicants, and had not yet secured permanent accommodation in the State? The Minister acted unreasonably but not in the manner posited. There is no requirement that, before exercising his freedom of movement rights to come to Ireland, an EU national should have made efforts to secure school places or permanent accommodation. If a man is not required by law to do something, he is not required to do it, and it cannot be held against him when he does not do that which he is free at law not to do, yet that in effect is what was done when the Minister viewed in a negative light the fact that the fifth applicant has as yet done nothing to secure school places or permanent accommodation in advance of coming here.

13. [6] Did the Respondent act irrationally and unreasonably in finding that the Applicants had failed to prove that the First Applicant was the cousin of the fifth Applicant and/or did the Respondent unlawfully fail to give reasons for this finding? The Minister acted unreasonably, perhaps even irrationally, in this regard. He was provided with un-impugned birth certificates which identify the relationships. He also received submissions which expressly touched on what it was the birth certificates purported to establish (Pleadings, p.254). Yet, despite being confronted with all of the foregoing, he arrived at the clearly erroneous conclusion that the above-mentioned relationship had not been established.

14. [7] Did the Minister act irrationally and unreasonably in refusing the visa appeals partly on the basis that there was no evidence that the first applicant was the ultimate beneficiary of the monies transferred to him by the fifth applicant? The Minister acted unreasonably because the statutory declarations provided some evidence in this regard; the Minister was free to place the weight on those declarations that he considered appropriate; however, he could not properly proceed on the basis that no documentary evidence was provided.

15. [8] Did the Minister act in breach of statutory duty and in breach of EU law in failing to assess and determine whether the third and fourth applicants are or were dependent on their EU citizen family member (the fifth applicant)? Yes. The third and fourth applicants clearly put forward that they are financially dependent (see Pleadings, p.144). Unfortunately this aspect of their appeal is not considered in the Impugned Decisions that concern them.