“In order to determine whether the relatives in the ascending line of the spouse of a Community national are dependent on the latter, the host Member State must assess whether, having regard to their financial and social conditions, they are not in a position to support themselves. The need for material support must exist in the State of origin of those relatives or the State whence they came at the time when they applied to join the Community national.” (emphasis added)
Later in the same decision the court provided the following guidance as to the meaning of dependency in the context of Directive 73/148 stating:
“… that ‘dependent on them’ means that members of the family of a Community national established in another Member State within the meaning of Art 43 EC need the material support of that Community national or his or her spouse in order to meet their essential needs in the State of origin of those family members or the State from which they have come at the time when they applied to join that Community national.” (emphasis added)
Some years later in Case C-423/12 Reyes [2014] ECRI - 000, wherein the Applicant was an adult child, the CJEU stated the following:
“21. That dependent status is the result of a factual situation characterised by the fact that material support for that family member is provided by the Union citizen who has exercised his right of free movement or by his spouse (see to that effect, Gia para. 35).
22.In order to determine the existence of such dependence, the host Member State must assess whether, having regard to his financial and social conditions, the direct descendant, who is 21 years old or older of a Union citizen, is not in a position to support himself. The need for material support must exist in the State of origin of that descendant or the State whence he came at the time when he applies to join the citizen (see, to that effect, Jia (para. 37)).
In the present proceedings, the Second and Third Applicants claimed to be both socially and financially dependent on the First. They submitted evidence relating to both financial assistance and medical conditions. A principal submission to this court was that the Applicants failed to establish dependency in circumstances where they failed to demonstrate either that they were not in a position to support themselves financially, or that the First Applicant provided support to meet essential financial need.
The submission was made that the Respondent’s (i) engagement with the medical evidence, including (ii) the independent investigations carried out, (iii) the findings of those investigations, including (iv) the further issues of concern, and (v) the views formed on foot of those investigations which were adverse to the Applicants, mattered not at all. That submission is undermined by the facts which emerge from an analysis of the evidence before this Court.
It is a fact that the Minister considered not merely the Second and Third Named Applicants’ financial, but also their social conditions, specifically, evidence furnished in respect of their medical conditions. The Applicants acknowledge that it is a matter for the Minister to assess the weight to be attached to the evidence proffered by the Applicants. However, the particular facts in this case include the following:
(1) The First-instanced refusal was squarely based on the failure of the Applicants to prove their relationship with the First Named Applicant. No other issue, concern, deficiency or flaw in the Applicant’s evidence was identified.
(2) Having regard to the fact that there is an uncontroverted averment before this court to the effect that both the medical as well as financial information was submitted in support of the visa applications, I am satisfied that all this evidence was, in fact, before the Respondent.
(3) It is a fact that the first-instance refusals of the visa applications concerning the Second and Third Applicants did not rely on the ground that either Applicant had failed to adduce adequate evidence of social and financial dependency.
(4) In appealing the first-instance refusals, the Applicant’s solicitor addressed the reason for those refusals by providing the original birth certificates and marriage certificates etc., as referred to in the letter from Trayers & Company dated 13 November 2018. This was followed by a letter dated 12 December 2018 in which Trayers & Company Solicitors addressed the only other reason cited for refusing the Fourth Applicant’s visa (namely that he did not have consent to travel) by providing the Lahore Court Order (dated 22 November 2018).
(5) The Applicants had no opportunity, when lodging their appeals, to address any issue or concern or flaw or deficiency with regard to the evidence proffered in support of dependency.
This is because none were cited as a ground for refusal of the visas at First instance. Let me say at this juncture that none of the foregoing facts, of themselves, entitle the Applicants to relief. Rather, it is what occurred thereafter which renders the decisions unsound.
The Applicants’ draw this court’s attention to the decision of Meenan J. in Singh v The Minister for Business Enterprise and Innovation [2018] IEHC 810 , wherein, at para. 16, the learned judge stated:
“In the instant case, the First named Respondent confirmed the decision but gave entirely different reasons from those which were given when the decision was First made. To my mind, there is an obvious problem with this in that the Applicant was given an opportunity to make representations in respect of the First decision but there was no such opportunity afforded to him in respect of the reasons given for the reviewed decision. Fair procedures would dictate that if different reasons were going to be given to confirm the First decision on review then the Applicant must be afforded an opportunity to be heard. This is what is provided for in s.13(4) and, in my view, is not limited only to the First decision. If the First named Respondent is intending to confirm the First decision but for different reasons then the Applicant should be afforded an opportunity to make representations on these different reasons before the review decision is taken.”
The context in which the foregoing case was decided involved a national of India who arrived in Ireland in January 2008 on foot of a student visa, who married an EU citizen in 2011 and was granted a “Stamp 4” permission to reside and work in this State for a five-year period. The couple divorced in 2014, but the Applicant wished to remain in Ireland and he applied to the Respondent for the retention of his residence card due to his status as the former spouse of an EU citizen. That application was unsuccessful and the specific reason given in July 2017 was that, based on the Applicant’s current immigration permission, he was precluded from working in the State and, consistent with s. 12(1)(i)(c) of the Employment Permits Act, 2006 (as amended), an employment permit would not be issued. On appeal, the attention of the Respondent was drawn to the fact that the Applicant had Stamp 4 status with an entitlement to work at the time of the initial application and the First-instance refusal. The review decision of August 2017 indicated that holders of a Stamp 4 permission come within the provisions of s. 2(1)(d) of the Employment Permits Act, 2003 (as amended) and, as such, have no requirement for an employment permit. The appeal decision made no reference to s. 12(1)(i)(c) of the 2006 Act. It was accepted by both sides that the first-instance decision was in error because the Applicant enjoyed Stamp 4 status at the time. It is also of relevance that s. 13 of the 2006 Act provides a procedure for the review of a decision to refuse a work permit. Section 13(4) entitles the party seeking the review to make representations in writing. The reviewer may either confirm the decision and give reasons, or cancel the decision and grant the employment permit.
Although the facts and statutory context in which the Singh case was decided differ markedly from those in the present proceedings, there seems to me to be a fundamental principle which is equally applicable, namely audi alteram partem. In light of the particular facts in this case, I am satisfied that this fundamentally important principle was breached in the present case.
Earlier in this judgment when discussing the Lahore Court order of 22 November 2018, I noted that it contained an (admittedly very small) typographical error, in that a word is missing. This was not merely the observation of a pedant. Nor was it to suggest that there is any equivalence whatsoever between a missing word in a Lahore court order and the various significant spelling mistakes in documents submitted in respect of the First and Second Named Applicants’ medical conditions. It is simply to observe that many of the documents exhibited in the present proceedings contain typographical errors, including, for that matter, the Respondent’s own decisions. It is no function of this Court to make any findings as to the veracity of documents and nothing in this judgment should be interpreted as such. Having said that, it seems to me appropriate to make certain observations, at a level of principle, on the topic of typographical errors, with a view to illustrating how fundamentally important the audi alteram partem principle is, in practice.
It seems to me that, at least in principle, there are a range of potential explanations as to why documents would contain typographical errors, from the minor to the most significant. A non - exhaustive list of reasons might include (a) the document has been falsified; (b) it was typed by an assistant or secretary and the typographical error was missed by the professional in question when they signed the document; (c) it was produced by a person for whom English is not their First language; (d) the error was contained in a draft and, in error, a draft was provided as opposed to the final approved version.
I want to emphasise in the clearest of terms that to say the foregoing is not, for a moment, to suggest that, when considering documentation put before her, the Respondent is not entitled to decide what weight to attach to it. Plainly she is and (subject only to concepts such as rationality in the judicial review sense) she is perfectly entitled to draw adverse inferences from documents, including in respect of the form as well as the content of the documentation. Nor am I suggesting which, if any, of the foregoing theoretical explanations, (a) to (d), apply in the present case. These are simply examples of conceivable possibilities, but they seem to me to be worth identifying because the very fact that such possibilities can be conceived of, underlines how essential it is that any decision-maker who has concerns which prompted them to carry out independent investigations, the result of which gave rise to further concerns, should alert the relevant Applicant to the outcome of those investigations before reaching conclusions. Not only does fundamental fairness require it, the benefits of so doing are obvious.
Firstly, it ensures that no finding is made without the affected party having had an opportunity to address the results of the investigations and the totality of the decision-maker’s concerns as they then stand. Secondly, it ensures that the decision - maker is armed with all information necessary to make a valid decision. In the present case, by (no doubt unwittingly) breaching the audi alteram partem principle, the Respondent was deprived of relevant information (namely, the response of the relevant Applicants to the results of the Respondent’s investigations, including the further concerns they gave rise to).
It seems entirely fair to say that, at all stages, the Respondent’s concerns were bona fide held and there is no evidence which would entitle the court to hold that there was any intention on the part of the Respondent to prejudice the position of any Applicant. However, on the particular facts and circumstances of this case, that was what occurred.
In submissions on behalf of the Applicants, the court’s attention was drawn to the two medical reports, both dated 23 September 2019, which comprised Exhibit “MT 1” to the affidavit sworn by Ms. Trayers, solicitor, on 13 December 2019. It will be recalled that, earlier in this judgment, reference was made to the concerns on the part of the Applicants’ Counsel that the First and Second Applicants lacked the capacity to swear affidavits. Those medical reports, as well as two further reports dated 25 March 2020, were exhibited in that context. Without for a moment expressing any view as to the veracity of any document (including those of 23 September 2019) or whether the following constitutes any explanation for the typographical errors in the documents from “BRIDGE Rehab & Psychiatric Services” which the Respondent referred to in her decisions concerning the Second and Third Applicants, the following note appears at the foot of the 23 September 2019 medical report from the “BRIDGE Rehab & Psychiatric Services”, immediately under what appears to be the name and signature of “Dr. Nisar Hussain Khan, Consultant Neuro Psychiatrist”:
“Note:
Certified that col. Dr. M. Javed Hameed was our visiting consultant and the medical certificate written by Dr. M. Javed Hameed regarding SS. Please ignore that was a rough draft”.
A similar note appears at the foot of the 23 September 2019 medical report in respect of the Third Named Applicant, MNS. Whilst, as I say, making no comment whatsoever as to the acceptability, or otherwise, of the foregoing by way of an explanation for what were very significant typographical errors in prior documents (or, for that matter, making any finding in respect of the veracity of the 23 September 2019 report itself) it is entirely uncontroversial to say that this is information which, by not alerting the Applicants to the results of her investigations (prompted by her genuinely held concerns, which investigations confirmed those concerns and raised further issues), the Respondent decision-maker deprived herself of receiving and considering prior to making her decision.
Counsel for the Applicants also drew this court’s attention to the observations made by Barratt J. in Chittajallu v The Minister for Justice [2019] IEHC 521 wherein, at para. 9, the learned judge stated:
“However, although (a) the Minister is not required to advise Applicants throughout the application process as to the evidence they need to provide (they apply, lawyers advise, and the Minister decides), (b) as a matter of basic fairness of procedures, the Minister, with respect, does need to be specific in an initial decision as to his specific expectations, if he expects that particular documentation will be produced.”
The relevance of the foregoing in the present case is not to say that, as regards the First - instance decisions, the Applicants were entitled to more than they received at that point. Rather, it is to emphasise the basic fair procedures requirement of being put on notice of the results of independent investigations and on notice of the further issues of concern which were revealed by those investigations (in the case of the Second and Third Applicants) as well as the right to be put on notice of, for example, the Respondent’s view that a grandson could not be a qualifying family member of an EU citizen, as he could not “intend” to join his grandfather (in the case of the Fourth Named Applicant).
Among the submissions made on behalf of the Respondent is that “as is clear from the medical documents submitted, there is little if any evidence that showed how the Second and Third Applicants’ are dependent on their First Applicant father as a result of their medical conditions and disabilities. The First Applicant has not lived with those Applicants since 2010 and no evidence was provided that the First Applicant has been paying for their accommodation, medical treatment or medication.” The foregoing comments speak to a qualitative assessment of medical evidence provided. It is not at all in dispute that the Minister is entitled to subject evidence to a qualitative assessment (see for example, Keane J. in Straczek v Minister for Justice and Equality [2019] IEHC 155 at paras. 45 and 46). The foregoing principle and the Respondent’s submission with regard to it, does not appear to me to address, however, the separate and distinct issue which speaks to fairness of procedure.
Shishu v Minister for Justice and Equality [2021] IECA 1
As to the latter issue, I find to be highly relevant the views expressed by the Court of Appeal in Shishu v Minister for Justice and Equality [2021] IECA 1 . That case concerned brothers, the younger of whom claimed to be dependent on the older. At issue, was the question of whether he was a permitted family member, the obligation on the State being to facilitate applications. At para. 122, Mr. Justice Haughton emphasised that:
“… the onus is on an Applicant to prove that they are a person to whom Reg.5(1) applies, and their case to be treated as a ‘permitted family member’. The process is not a joint venture, in which there is some ill-defined obligation on the Minister to assist Applicants.
Having said this, the process is not adversarial - it is intended to be facilitative in the narrower sense of that word - it is to enable an application to be made, and not to put undue obstacles in the way of an Applicant establishing their case. Further it is by its very nature interactive: even if the Minister does not correspond on ‘concerns’ or require the production of additional evidence under Reg.5(4), the obligation to justify and give reasons for a First instance refusal has the effect that at the review stage an Applicant can make submissions and furnish further supporting documentation with their Form EU4 Review Request, and the Minister has the power to pursue further enquiries under Reg.25(5).”
I would pause here to make the point that, in the present case, the reasons for a first-instance refusal did not, in fact, have the effect that, when seeking an appeal, the Applicants were able to know and, therefore, address the concerns which comprised a material part of what became the appeal refusals. It also seems to me that the description by Haughton J., at para. 123, highlights the fact that, even though Meenan J. in the Singh case was dealing with a situation where an appellant had a statutory entitlement to make representations in writing, the process under the 2015 Regulations is one which facilitates the making of submissions by an Applicant at the review stage. Thus, the underlying principle articulated by Meenan J. which speaks to basic fairness of procedure seems to me to be equally relevant regardless of the different legislative frameworks.
It is entirely true to say that, at para. 124 of the Court of Appeal’s decision in Shishu, Mr. Justice Haughton made clear that the Respondent Minister is not under an obligation to adopt a procedure “… that would enable the Applicant to know what evidence he was required to adduce” as this would “create very real and practical difficulty for the Minister in assessing and deciding applications”. Notwithstanding the foregoing, the court went on to state the following from, para. 126, onwards, having referred to the wording in Regulation 5(3), Art. 3(2) and Recital 6 of the Directive:
“126. What I take from this is that the Citizens Directive and the 2015 Regulations create the obligation to extensively examine the personal circumstances, but do not go so far as to impose an investigative obligation, or an obligation to raise queries or concerns or seek additional evidence. While I have considerable sympathy for Applicants who may feel, as was the case here, that they were not given the opportunity to respond to concerns about proofs that were not raised with them, and were indeed “operating to some extent ‘in the blind’”, in my view the trial judge erred in answering this question in the affirmative.
Having said this there will be circumstances in which fair procedures dictate that the Minister raise matters with an Applicant and consider a response before coming to a decision. This will arise where, for example, the Minister obtains relevant information from a source other than the Applicant and is contemplating using that information to refuse a residence card. This in fact occurred in the present case where information ‘available to the Minister’ indicated that Mr. Mohammed Jewel Miah, whose name appeared as landlord on the Castleblaney tenancy agreement provided with the application, was not in fact the landlord. In accordance with the requirement of fair procedures this was put to Mr. Miah in the letter of 17 August 2018 to “provide you with an opportunity to address these concerns prior to making a determination.” - and it was duly answered. However, I am satisfied that the matters which informed the Impugned Decision to refuse, while they can be criticized on other grounds, did not relate to new information or documentation sourced by the Minister which he was obliged (and failed) to put to the Applicants to elicit their response.
I would also observe that the corollary to the Minister in general not having the obligation to advise an Applicant of his thinking as to what further information or documentation might be required to satisfy him on the application is that the Minister must justify a refusal, and must do so on a rational basis and the decision must have a solid factual basis. As I have found earlier in this judgment the Minister failed to do so in the Impugned Decision.” (emphasis added).
In the manner examined earlier, it is certainly a matter of fact that the Respondent Minister obtained what she regarded to be relevant information from a source other than the relevant Applicants, in particular, by doing what the Respondent described in the relevant decisions, as follows:-
(a) “consulting the ‘Bridge Rehab and Psychiatric Services’ website”;
(b) as well as what is described as “further investigation conducted by this office”; and
(c) “information made available to this office”.
Although no specific details are provided as to the source(s) consulted in respect of (b) and (c), it seems clear from the Respondent’s decisions that information from the foregoing three sources played a material part in the decisions reached by the Respondent to refuse the visa appeals concerning the Second and Third Applicants. The Respondent did not raise such matters with either of the Applicants at any stage prior to reaching the decisions which are challenged in the present proceedings. These matters are not referred to in any of the first-instance decisions. Furthermore, no such matters were put to any of the Applicants, even though their solicitor took the trouble to make the explicit request in her 13 November 2018 letter that “if there are any other issues or concerns which need to be addressed we would be obliged if they could be put to us in advance of a decision being reached”.
As I have observed more than once, that was not a request that the Minister advise the Applicants on their proofs. It was, however, a request that if “other” matters (i.e. not referred to in the first-instance refusal) were to play a part in the appeal decision, the Applicants’ solicitor wanted to be on notice of same. The “other issues or concerns” to which the Applicants’ solicitor referred plainly included (i) information independently sourced by the Respondent which (ii) she regarded as supporting a view that medical evidence lacked veracity, and (iii) raising further issues of concern and (iv) was to feature in the Respondent’s decision making. In the present case I am satisfied that, as a matter of fact, the decisions relating to the Second and Third Named Applicants were based to a material extent on new information sourced by the Minister which, having regard to fundamental principles of fair procedures, she was required to put to the Applicants, so that they could be afforded an opportunity to respond, prior to any final decision being taken. Doubtless, the failure to do so was entirely innocent but it was a failure nonetheless and a fundamental one insofar as the audi alterem partem principle was breached.
A theme in the Respondent’s submissions is that no reasonable individual could have regarded the medical documents in question as reliable and the Respondent also submits that her “investigation elicited even more discrepancies”. The clear implication of these submissions is that, firstly, the investigation and what it revealed made no difference to the decision and, secondly, the documents in question so plainly lacked veracity that no opportunity afforded to the Applicants to address the matter could or would have been meaningful. Indeed, the Respondent’s written submissions contain a further critique of the medical evidence provided in support of the visa applications, with reference to the medical certificates dated 23 September 2019 which, as explained earlier, were obtained in the context of a concern on the part of the Applicants’ Counsel that the Second and Third Applicants might lack the capacity to swear affidavits. It is clear from the following submission that the Respondent asserts that it is simply impossible for the relevant Applicants to explain the discrepancies with respect to the medical documentation, the implication being that it did not matter that the Respondent did not share the results of her investigations or the concerns they gave rise to and confirmed:
“It is important to note that the medical certificates exhibited in the Second affidavit of Mary Trayers from Bridge Rehab & Psychiatric Services are dated 23rd September 2019 and signed by a Dr. Nisar Hussain Khan, were not before the decision maker either at First instance or at appeal so the Applicants cannot rely on them now (as they seek to at paragraph 71 of their Legal Submissions). At the end of these ‘certificates’, there is a ‘Note’ stating the following: “Certified that Col. Dr. M. Javid Hameed was our visiting consultant and the medical certificate written by doctor M. Javid Hameed regarding MNS/SS. Please ignore that was a rough draft.” It appears that these certificates are attempting to explain some of the discrepancies identified in the appeal decision, yet even these certificates contain a different logo and heading to the certificates that were put forward with the applications.” (emphasis added)
It is plain from the foregoing submission that, whilst at no stage accepting that any fair procedures breach occurred, it is contended that it would and could have made no difference. That is not a proposition I can accept. In saying this, I want to stress that the present proceedings do not involve a complaint as to the way evidence before the Minister was assessed. Rather, the complaint is made with regard to the process by which the Respondent arrived at her decisions. For the reasons identified in this decision it appears to me that the process was flawed arising from, inter alia, a breach of fair procedures and for the reasons explained in this judgment, I cannot take the view that, where a fundamental breach of fair procedures has been established, this court should ignore it on the basis of an assertion that it made no difference.
The rights pursuant to the Directive and reflected in the 2015 Regulations are significant and the consequences for the Applicants of a decision, either way, is a serious matter. Regulation 25(5) which requires the Respondent to have regard to the information contained in the application undoubtedly entitles her to “make or cause to be made such enquires as … she considers appropriate”. The Minister’s options are either to set aside the decision or to “confirm the decision the subject of the review on the same or other grounds having regard to the information contained in the application for the review”. The ability to confirm the decision on the same “or other grounds” does not seem to me to be an answer, from a fair procedures perspective, to the fact that the Respondent obtained relevant information from a source other than the Applicant and, without raising the relevant issues of concern at any stage, reached a decision which relied, to a material extent, on information never put to the Applicants. This is, of course, against the backdrop of the first-instance decision not having raised the issues either.
Regulation 25 (5)
A literal reading of Regulation 25(5)(a) fortifies me in the foregoing view. In other words, the situation in the present case is that the Respondent did not simply confirm the first-instance decision on “other grounds having regard to the information contained in the application for the review”. Rather, she confirmed the earlier decision on other grounds having had regard, inter alia, to other information as a result of her own investigations which was not contained in the application for review and was not put to the Applicants.
No general obligation to alert an Applicant to deficiencies
I am not for a moment deciding the matter on the basis of any general principle that the Respondent, in a review pursuant to Regulation 25, is obliged to give advance notice of perceived deficiencies in the Applicants’ own proofs. The Minister owes an Applicant no such duty. On this point, it is appropriate to quote as follows from the decision of Faherty J. in Khan v Minister for Justice, Equality and Law Reform [2017] IEHC 800 :
“83. Much of the criticism levelled at the Respondent in the course of this application centred around the failure of the Respondent to give advance warning to the Applicants of perceived deficiencies or contradictions in the documents submitted with visa applications prior to the Respondent reaching a decision on the respective appeals. Counsel for the Applicant maintained that had the Applicants been forewarned they would have been able to address the perceived deficiencies or contradictions.
Counsel for the Respondent submits that it was incumbent on the Applicants to put their best foot forward and to present such relevant facts and evidence as might be necessary to support their applications, including facts and evidence which would tend to prove dependency. Accordingly, the Respondent cannot be criticised, in these proceedings, for the condition of the Applicants’ own proofs, because the Respondent was not willing accede to their application while in receipt of insufficient proof of dependency.
I agree with the Respondent's submissions in this regard. As stated in A.M.Y. v. Minister for Justice [2008] IEHC 306, ‘there is no onus on the Minister to make inquiries seeking to bolster an Applicant’s claim; it is for the Applicant to present the relevant facts’.”
Consideration of further material of which the Applicants were not on notice
Similarly, in Qureshi v Minister for Justice [2019] IEHC 446 , Keane J. stated as follows in a case where the review decision was made on a different basis to that at First instance:
“61. … it is important to bear in mind that both the First instance and review decisions were based solely on the material provided by the Applicants. This was not a case involving the consideration by the decision-maker of further or other material of which the Applicants were not on notice . Thus, there is no question in this case of the Applicants being deprived of a reasonable opportunity to know the matters that may be likely to affect the judgment of that body against their interest. Once that opportunity has been provided, then, as McMahon J observed in P.S. (a minor) v Refugee Applications Commissioner & Ors [2008] IEHC 235 , (Unreported, 11th July, 2008), it is clear that not every matter that may inform a decision must be put to the Applicants or their advisers.
Further, as Herbert J observed in D.H. v. Refugee Applications Commissioner & Ors [2004] IEHC 95 , (Unreported, High Court, 27th May 2004) in the more searching context of an application for refugee status:
‘The principle of audi alteram partem does not require the determinative body to debate its conclusions in advance with the parties.’” (emphasis added)
The facts in the present case are wholly different. Here, the decision maker did, in fact, consider further or other material of which the relevant Applicants were not on notice. Thus, they were deprived of a reasonable opportunity to know of matters likely to affect the Respondent’s decision. This is perfectly clear from a combination of the fact that (i) the first-instance decision did not raise the issues in question; and (ii) the explicit request made by the Applicants’ solicitor to be put on notice of any other issues or concerns was not responded to.
If the factual position in the present case was that the relevant decisions of the Respondent were exclusively based on a consideration of the material provided by the Applicants, the outcome of the present proceedings might well be different. But on the facts of the present case, and in a very real sense, the Applicants were deprived of an opportunity to know of matters likely to affect the outcome of the decisions. Thus, the present case seems to me to represent an example of what Mr. Justice Haughton referred to at para. 27 of the Court of Appeal’s decision in Shishu.
With regard to the decision of Meenan J. in Singh to which I referred earlier, it is, of course, very important to note that there is a material difference between the scope of s. 13(4) of the Employment Permits Act 2006, on the one hand, and Regulation 25(5) of the 2015 Regulations, on the other. Pursuant to the former, the decision maker, on review, may confirm or cancel the decision, whereas, pursuant to the latter, a decision maker is entitled to decide the review on the same “or other grounds”. The observations made by Meenan J. seem to me to be no less relevant, however, in the present circumstances. The relevant Applicants in this case were deprived of an opportunity to make representations in respect of the reasons which underpinned the refusal of the appeal. This was a breach of fair procedures in circumstances where, notwithstanding the statutory power to decide the review on other grounds, the reasons relied on by the Respondent included information sourced by her which was never put to the Applicants.
In other words, it is the very particular facts in this case which determine its outcome. For the sake of clarity, this Court is not holding that there is any general obligation on the Minister to facilitate representations where a decision to refuse a visa appeal is for different reasons than those upon which the first-instance decision was based. Where, however, the different reasons at the appeal stage involved a reliance, inter alia , on the results of independent investigations which gave rise to further issues of concern, which results and concerns were not put to the Applicants at any stage, the approach taken by Meenan J. in Singh seems to me to be necessary, regardless of the differing statutory provisions. This approach in no way robs the Respondent of their statutory powers. It merely ensures that statutory power is exercised in accordance with fundamental principles of constitutional justice, insofar as fair procedures are concerned.
Theoretical explanations
As to the suggestion made by Counsel for the Respondent that, such are the deficiencies in the documentation, they were, and remain, impossible to explain, it seems to me useful to refer, once more, to a purely theoretical scenario. Among the results of the Respondent’s independent investigation was to find that the ‘font’ and ‘header’ of the “BRIDGE Rehab and Psychiatric Services” website differed significantly from that used on their letterhead. On foot of the foregoing results, the Respondent formed the view that it would be expected, for business purposes, that a website and letterhead would be similar in layout, as to font colour etc. It is clear that the Respondent formed views adverse to the relevant Applicants based on the foregoing investigations and results. Is it truly the case that it is impossible for there to be any ‘innocent’ explanation? That is certainly the thrust of the Respondent’s submissions. Speaking purely in the theoretical, however, it seems to me that such a difference could conceivably be explained by (a) the letter has been falsified; or (b) the business created (or refreshed) its website branding prior to all existing stocks of its ‘old’ letterhead- paper being used up and, rather than destroy it, same was used for correspondence until that stock was exhausted; or (c) the business in question ordered paper with a newly-designed letterhead prior to conducting a re-branding of its website, or (d) the business is happy, for whatever reason, to use a letterhead which differs in style (font, colour etc.) from that employed on its website. It is no function of this court to suggest which if any of the foregoing theoretical possibilities might apply. I merely point out that different scenarios are conceivable, at least in theory, and that very fact underlines the fundamental importance of the principle of audi alteram partem . In other words, to the extent that it is suggested that a breach of fair procedures should be overlooked by this Court in the present case, I feel obliged to reject that proposition.
In short, although the Respondent owes no general duty to an Applicant to raise issues or concerns or to seek additional evidence, a fair procedures obligation arose in light of the specific facts in the present case, given that the Minister obtained other information as a result of her independent investigation which she relied on in reaching the decisions to refuse the Second and Third Applicant’s appeals. These were circumstances in which fair procedures dictated that the Minister raise matters with the relevant Applicants and consider such responses as they might make, prior to coming to a final decision. This did not take place. There was a breach of the audi alteram partem principle.
I am satisfied that the Applicants are entitled to an order of certiorari quashing the decisions of the Respondent, dated 23 July 2019, to refuse the Second, Third and Fourth Named Applicant’s review of the first-instance decisions to refuse visa appeals under the Directive and 2015 Regulations.
On 24 March 2020 the following statement issued in respect of the delivery of judgments electronically: “The parties will be invited to communicate electronically with the Court on issues arising (if any) out of the judgment such as the precise form of order which requires to be made or questions concerning costs. If there are such issues and the parties do not agree in this regard concise written submissions should be filed electronically with the Office of the Court within 14 days of delivery subject to any other direction given in the judgment. Unless the interests of justice require an oral hearing to resolve such matters then any issues thereby arising will be dealt with remotely and any ruling which the Court is required to make will also be published on the website and will include a synopsis of the relevant submissions made, where appropriate.”
Having regard to the foregoing, the parties should correspond with each other, forthwith, regarding the appropriate form of order including as to costs which should be made. My preliminary view is that there are no circumstances which would justify a departure from the normal or general rule that costs should “follow the event”. In default of agreement between the parties on any issue, short written submissions should be filed in the Central Office within 21 days (taking account of the Easter vacation). Finally, efforts have been made to redact names to prevent the identification of the Applicants or their family members. In the event that further or other redactions are felt necessary, the parties are invited to furnish agreed proposals within the aforesaid 14 day period.