Minister wrongly applied regulations relating to free movement of persons in EU

A High Court judge, in a significant ruling, has found the Minister for Justice wrongly applied regulations relating to the free movement of persons in the EU when refusing a man’s application for a residence card.

Mr Justice Max Barrett, as a result of the finding, quashed the Minister's refusal, directing him to reconsider the application.

The proceedings were brought by two brothers, Jaglu Hoque Shishu and Jabed Miah, who are natives of Bangladesh. Mr Shishu is a naturalised UK citizen exercising his free movement rights, as an EU national, to live and work here. Mr Miah is a citizen of Bangladesh who claimed to have lived as a dependant of his brother in England.

The brothers challenged a decision by the Minister of October 2018 that Mr Miah is not a dependant of Mr Shishu within the meaning of regulation 5.1 of the EC (Free Movement of Persons) Regulations 2015.

In his judgment on Wednesday, Mr Justice Barrett said the Minister erred in law in identifying a deficiency of documentation [concerning the claimed dependency on an EU citizen] in respect of matters that did not properly arise for consideration.

The Minister erred in how he applied various subsections of section 5 when reaching his decision, the judge said. The Minister, he held, acted unreasonably and/or in breach of EU law and/or the 2015 Regulations in determining Mr Miah had failed to provide sufficient evidence he was a member of his brother’s “household”.

The Minister's decision noted "numerous" documents had been submitted in respect of Mr Miah's residence in the UK and Ireland but said it was not evident from those that Mr Miah lived at his brother's UK address before he left for Ireland. The Minister said there was "insufficient" evidence about how many people lived at the UK address, their relationship to Mr Miah or the length of time both brothers were at the UK address.

Mr Justice Barrett noted the duties of EU member states under the Citizens Rights Directive (CRD), including to facilitate entry and residence for members of the household of an EU citizen.

In this case, the evidence provided as to household membership was “strikingly comprehensive”, including a letter from the NHS and bank statements addressed to Mr Miah at his brother’s address, he said.

Noting “household” is not defined in the CRD or the 2015 Regulations, the judge said that means it requires to be given its ordinary meaning and a uniform application throughout the EU.

Arising from an observation of the Court of Justice of the EU, he considered the proper meaning of “household” within Article 3.2 of the CRD appears to be wider than the ordinary English meaning of the word.

The Minister’s statement that Mr Miah had not provided sufficient evidence of those living at the UK address, their relationship to him or how long the brothers were at the address, appeared to go beyond what was required by Article 3.2, he said.

The Minister, he said, appeared to have had no regard to the concept of household as a single dwelling containing multiple households who don’t share meals or living spaces and rather seemed to understand household as a single person or group who regularly reside together in the same accommodation with shared catering arrangements.

The judge also found the Minister acted unreasonably and/or in breach of fair procedures in not generally outlining to Mr Miah what evidence he was required to provide to show he was a dependant of his brother or a member of his household.

The unreasonableness or unfairness flows from the “closeted” manner in which the Minister elected to discharge his obligations to the detriment of applicants who, as a result, are unfailingly operating to some extent “in the blind”.