Court of Appeal upholds Minister’s refusal of residency card

Pakistani man living with UK citizen brother sought card on basis he was ‘permitted family member’

The Court of Appeal has upheld the Minister for Justice’s refusal of a residency card for a Pakistani man living here with his UK citizen brother.

The three-judge court this week allowed an appeal by the Minister against a High Court judgment of September 2019 quashing the refusal.

Fahad Abbas (33) sought a residency card on the basis he was a “permitted family member” of his brother, Farrukh Abbas (39), as defined under Article 2 of the EC free movement of persons regulations of 2015.

Farrukh lived in the UK from 2004 to 2016 when he became a naturalised UK citizen. He said he came to Ireland in late 2016 to set up a waste and cleaning services company but does not actively work for that company because he is busy working with Circle K and Deliveroo.

Fahad said he lived with his brother in London from July 2010 to November 2011 when he returned to Pakistan to pursue a business diploma, the fees for which were paid by Farrukh. He said, while in Pakistan, he was financially dependent on money transfers from his brother who in 2014 agreed to sponsor his move to Ireland to further study and improve his employment prospects.

It was claimed Farrukh paid some €10,400 fees for various courses Fahad pursued here, including a Bachelor’s degree in Business Administration in Dorset College, Dublin; gave him €500 monthly spending money; and paid his rent.

Fahad claimed he worked part-time for a while here but had to give that up to concentrate on his studies and has had no other income, apart from what his brother gave him, since 2017.

The Minister in late 2018 upheld refusal of a residency card on the basis a deciding officer was not satisfied Fahad was a dependant of his brother not capable of sustaining himself independently.

Giving the Court of Appeal judgment allowing the Minister’s appeal over the High Court’s quashing of that refusal, Mr Justice Donald Binchy said a residency applicant relying on the free movement directive must establish dependency on an EU citizen in the country from which the applicant “has come”.

The High Court had incorrectly found the country from which Fahad had come was Ireland, he held. The dependency must, in the first instance at least, exist in a country other than the host state, ie, the applicant’s country of origin, or another country from which the applicant is coming to the host state. Dependency must be established both in the country from which the non-EU national has come and in the country where the applicant is living when they apply, the host State.

It followed the Minister was correct to consider whether or not Fahad was dependent on his brother when in Pakistan, the judge said.

While evidence showed money was transferred from Farrukh to Fahad when the latter returned to Pakistan, mere transfer of funds cannot establish dependency for the purpose of the Directive and Regulations, he said. The funds must be essential to life and more than “merely welcome”.

The deciding officer’s findings the transfers from Farrukh to Fahad in Pakistan between November 2011 and January 2014 were not in themselves sufficient evidence of dependency was neither unreasonable nor irrational and did not justify interference from the court, he held.

This was so because of the amount and intermittent nature of the transfers; they were the only objective evidence of dependency for this period and there was no evidence of Fahad’s living situation generally in this period.

Because dependency in Pakistan had not been established, it was not necessary to consider the question of dependency here because that was secondary to the requirement to establish dependency in the country from which Fahad had come, he held.

Applicants for residency under Article 3 must produce a certificate of dependency from the competent authorities in the country from which the applicant has come, he further held. He rejected arguments by the brothers a decision of the Court of Justice of the EU in the Jia case meant EU member states cannot insist on production of such a document.