Minister found by court to have applied correct test in refusing residency card

The Court of Appeal has overturned the High Court’s decision to quash the Minister for Justice’s refusal of an Irish residency card for a Pakistani widow living in this State with her son since 2016.

The woman’s son is a UK national who arrived in Ireland in 2004 and runs a business here.

The High Court’s Mr Justice Max Barrett had quashed the Minister’s residency refusal for non-EU/EEA resident Mrs Kauser, the mother of Shakeel Ahmed Dar. He found the Minister had not applied the correct legal test for dependency in failing to have any, or any proper, regard to the emotional and social dependence between the mother and son.

However, the three-judge Court of Appeal concluded that the Minister, who appealed the High Court’s finding against her, had in fact applied the correct test for dependency as interpreted by case law.

In a judgment supported by her appeal court colleagues, Ms Justice Aileen Donnelly said the Minister did not err in refusing the residency card.

The Court found the Minister was not required to consider the emotional and social dependence of Mr Dar’s mother on him in determining whether the test of dependency had been reached.

Ms Justice Donnelly noted that the right of certain family members of an EU citizen to enter and reside in a member state turns on whether he or she is dependent on the EU citizen.

She said the meaning of dependency is “surprisingly” not defined under the relevant EU legislation, but the Court of Justice of the European Union has addressed the meaning of the word in a number of important decisions. These decisions have, in turn, been authoritatively considered and applied in this jurisdiction, she said.

Case law on dependency “expressly and repeatedly” refers to material support, said Ms Justice Donnelly. The financial and social needs form part of the assessment as to whether an applicant is not in a position to support themselves in a material way, she said. Emotional ties and bonds are “insufficient to establish dependency”, she said.

There can be no free-standing test of emotional and social dependency as posited by the High Court judge, and the previous judgment holding otherwise cannot stand, said Ms Justice Donnelly.

She said the impugned decision identified that Mrs Kauser had failed throughout the residency card application process to provide any documentation as to her financial circumstances. Thus, Ms Justice Donnelly said there was a failure to engage with the test.

The judge also said it appears the Minister is entitled to her legal costs.

Mr Justice Séamus Noonan and Mr Justice Brian Murray indicated their agreement with Ms Justice Donnelly’s judgment and proposed orders.