High Court quashes Minister's visa refusal for Bangladeshi siblings due to erroneous requirement of emotional ties beyond financial dependency.

THE HIGH COURT

[2025] IEHC 613

Record No. H/JR/2024/1019

BETWEEN

MOHAMMED ALAUDDIN, NAIM UDDIN AND NURJAHAN BEGUM

APPLICANTS

AND

THE MINISTER FOR JUSTICE

RESPONDENT

JUDGMENT of Mr Justice Barr delivered electronically on the 14th day of November 2025.

Introduction

1. The first applicant is a dual British/Bangladeshi citizen. He has exercised his right to free movement within the EU by coming to Ireland in 2020. He secured work as a kitchen manager. He now operates his own delivery business. He is 45 years of age.

2. The second and third applicants are the first applicant's brother (26 years) and sister (21 years). They are citizens of Bangladesh and reside there.

3. The second and third applicants challenge the decisions of the respondent made on 15 May 2024 to refuse their applications for visas to enter the State on the basis that after the death of their mother in 2008 and the death of their father in 2015, when they were aged 16 and 11 years respectively, they have been financially dependent on the first applicant, who has paid their school and college fees and has sent them regular cash payments to enable them to buy necessaries such as food, clothing, school books, and computer equipment.

4. The applicants challenge the respondent's decision on the following grounds: that there was a lack of clarity as to whether educational financial support was deemed essential or non-essential by the Minister, and whether treating it as non-essential was an error of law or fact; that the decision-maker imposed an unreasonable evidentiary burden, including a requirement for a "chain of evidence" linking remittances from the first applicant to specific expenditures made by the second and third applicants; that the

decision-maker erred in law in requiring proof of a relationship with "more than normal emotional ties" between the first applicant and the second and third applicants; and that the decision was vitiated due to manifest errors contained in the decision.

5. The respondent submits that when read as a whole, it is clear from the decision that the respondent was not satisfied from the evidence before him, including the documentary evidence submitted in support of the applications, that the second and third applicants had discharged the burden of proving that they were financially dependent on the first applicant such as to entitle them to receive visas under the provisions of the Citizens Directive, or the 2015 Regulations.

Background.

6. As this case has had a long history it is necessary to set out the background in some detail. It is not known when the first applicant went to the UK, but he was certainly there for a considerable period, as he referred to his parents and siblings visiting him there in 2006. They also intended to visit him there in 2007, but did not do so due to family circumstances.

7. The first applicant resided in the UK until July 2020. While the first applicant had been residing in the UK, an application had been made to the UK government to give the second and third applicants visas to enter that country on the grounds that they were financially dependent on the first applicant. Those applications were refused in 2016.

8. The first applicant came to Ireland in July 2020. On 23 November 2020, the second and third applicants applied for visas. Those applications were refused at first instance on 31 January 2022, on the grounds that the respondent was not satisfied that the second and third applicants were financially or socially dependent on the first applicant, and the respondent did not accept that the first applicant was habitually resident in the State.

9. An appeal from that decision was lodged on 26 March 2022. Further supporting documentation was lodged on behalf of the applicants. That appeal was refused on the same grounds as at first instance.

10. The applicants challenged that refusal by way of judicial review proceedings. In a reserved judgment delivered on 15 November 2023 (2023 IEHC 621), Jackson J. granted certiorari of the appeal decision. The matter was remitted back to the Minister for reconsideration.

11. On 29 January 2024, the applicant submitted further documentation in support of their applications. In separate decisions issued on 15 May 2024, the respondent again refused the visa appeals submitted by the second and third applicants; save that the respondent accepted that the first respondent was an EU citizen (or in a similar position to one following Brexit) and was exercising his right to free movement within the EU. The respondent held that the second and third applicants had not demonstrated that they were financially dependent on the first applicant at the time of the reconsideration of their appeals by the Minister.

12. On 11 November 2024, the applicants obtained leave to challenge these decisions by way of judicial review. The substantive hearing of the matter was held in July 2025.

Relevant Legislative Provisions.

13. The first relevant legislative provision is Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (hereinafter "the Citizens’ Directive"). The relevant article is Art. 3(2), which provides as follows:

“2. 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 dependants 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.

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people”

14. The provisions of the Citizens’ Directive were implemented into Irish law by means of regulations; the most recent of these being the European Communities (Free Movement of Persons) Regulations 2015 (S.I. 548/2015). Regulation 5 deals with permission for permitted family members to enter the State. It provides that the Regulation shall apply to a person who (a) irrespective of his or her nationality is a member of the family (other than a qualifying family member) of a Union citizen to whom paragraph (2) applies and who in the country from which the person has come is a dependent of the Union citizen.

15. Regulation 5(2) provides that where a Union citizen has entered or is residing in the State in accordance with the Regulations, a person to whom paragraph (1) applies may apply to the Minister for a decision that he or she be treated as a permitted family member for the purposes of the regulations and shall, for the purposes of such an application, produce to the Minister documentary evidence from the relevant authority in the country of origin or country from which he or she has come, that he or she is a dependent of the Union citizen.

16. Regulation 5(5) provides that the Minister in deciding whether an applicant should be treated as a permitted family member for the purposes of the regulations, shall have regard to a number of matters including: where the applicant is a dependent of the Union citizen concerned, the extent and nature of the dependency and, in the case of financial dependency, the extent and duration of the financial support provided by the Union citizen to the applicant prior to the applicant coming to the State, having regard, amongst other relevant matters, to living costs in the country from which the applicant has come; whether the financial dependency can be satisfied by remittances to the applicant in the country from which the applicant has come; and other financial resources available to him or her.

17. The Regulation goes on to provide that in considering the application the Minister can have regard to whether the relationship described as existing between the sponsor and the applicant was brought about with the objective of obtaining permission to remain in the State or a Member State and can have regard to the capacity of the Union citizen concerned to continue to support the applicant in the State in the event that the applicant is to be treated as a permitted family member under the Regulations.

The Evidence that was before the Minister.

18. As already noted, the applicants submitted documentation in support of their applications at various stages in the process outlined above. By the time the matter came before the respondent for reconsideration in 2024, the following materials were before him: affidavits or statutory declarations sworn by each of the applicants; affidavits sworn by the applicants' four siblings and by their stepmother; extensive bank records relating to the first applicant and to the accounts held by the second and third applicants in banks in Bangladesh; evidence of cash transfers via an agency called Small World from the first applicant to the second and third applicants; evidence from the school and college authorities attended by the second and third applicants stating that these applicants were in the educational institutions and that the fees had been paid by the first applicant; receipts in respect of various items of food, clothing, school equipment and computer equipment that had been purchased by the second and third applicants and paid for in cash; evidence of missed WhatsApp calls between the first applicant and the second and third applicants; photographs showing the first applicant with the second and third applicants and with other members of the family.

The Impugned Decisions.

19. While the decisions deal separately with the transfers of money by the first applicant to the bank accounts held by the second and third applicants, the decisions are in all other respects identical. Accordingly, I will refer to "the decision", but this will encompass both decisions that issued on 15 May 2024.

20. The decision in each case is reasonably comprehensive, running to some thirteen pages. In each case, the decision-maker has identified all the relevant payments in terms of amount and date which were made by the first applicant to the second and third applicants. The decision also noted that there were other payments stated to have been made prior to 2018, in respect of which documentary evidence had not been submitted. The bank accounts that had been submitted, showed money leaving the first applicant's account and going either directly into the second and third applicants’ bank accounts, or doing so via a money transfer agency called Small World.

21. The decision also refers to the evidence confirming that school and college fees had been discharged by the first applicant for the second and third applicants.

22. The decision also had regard to the documentary evidence that was submitted in the form of receipts showing purchases of various items by the second and third applicants from shops, which were allegedly paid for in cash. These receipts were for items of clothing, food and for other items such as school materials and computer equipment.

23. In essence, the decision in each case found that financial dependency had not been established by the second and third applicants because they had not provided evidence of their everyday living expenses and how they were met; nor had they given any narrative account of their sources of income.

24. The decision noted that they were required to provide evidence of the day-today expenditure faced by them and to that end the decision maker would examine evidence related to their household finances and expenditure, such as utility bills and day-to-day expenses, as well as any evidence regarding their financial resources. This would include whether the second and third applicants owned property, or had other sources of income (such as social welfare benefits), their savings, any salary or pension, or whether they received financial and social support from other family members. The

conclusion reached by the decision-maker in this regard was in the following terms:

“The submitted money transfer receipts, on their own, do not indicate whether you needed these funds to meet your essential needs. You have not provided evidence of your household finances or expenditures, such as utility bills or receipts for day-to-day expenses.

Additionally, no documentary evidence was submitted regarding your own financial resources, such as property ownership, income sources (e.g. social welfare), savings or financial support from other family members including your spouse. Based on the documentary evidence submitted, it has not been demonstrated that you received financial support from your sponsor that could be considered necessary for meeting your essential living costs. While financial dependence is not the sole factor for determining dependency, it is an important criterion.”

25. The decision also held that insofar as receipts had been provided for the purchase of various items, there was nothing to link those purchases with the receipt of funds shown to have been provided by the first applicant. In this regard, the key

conclusion of the decision was as follows:

“Furthermore, I examined a number of local domestic receipts from various outlets such as garments, foodstuff, and accessories, which have been submitted. There is no documentary evidence that these domestic expenditures have been paid or supported by your sponsor. Alongside the educational financial support, these outgoings are not deemed unequivocally essential to meet your financial and social needs in a manner that would demonstrate dependency on your sponsor for day-to-day life.”

26. Later in the decision, it was stated as follows:

“There is no question regarding the submission of evidentiary documentation in this application; rather, the test of dependency is applied therein. For example, the receipts of expenditures made in your name do not provide evidence that these expenditures were actually made or supported by your sponsor. The same applies to documentary evidence of monetary transfers from your sponsor to you; it does not prove that these financial supports are unconditional for your essential needs on a daily basis, as elucidated elsewhere in this correspondence.”

27. The decision went on to state that while the decision-maker had considered copies of the photographs and telecommunication exchanges between the applicants, he held that the applicants had not provided sufficient information or documentary evidence of their social/emotional relationship with the EU citizen sponsor, which could be considered more than "normal emotional ties" expected between siblings. Consequently, in accordance with Article 3(1) [sic] of Directive 2004/38/EC, the decision-maker found that the applicants had not proved that they were financially or socially dependent on their EU citizen sponsor as claimed.

The Law.

28. The test for establishing dependency under the regulations was set out by the Court of Appeal in VK v Minister for Justice and Equality [2021] 1 IR 724. Having carried out an extensive review of the relevant domestic and EU case law on the topic, Baker J delivering the judgment of the court, set out a summary of the test at paras. 82– 86, as follows:

“[82] The test for dependence is one of EU law and an applicant must show, in the light of his financial and social conditions, a real and not temporary dependence on a Union citizen. The financial needs must be for basic or essential needs of a material nature without which a person could not support himself or herself. A person does not have to be wholly dependent on the Union citizen to meet essential needs, but the needs actually met must be essential to life and the financial support must be more than merely “welcome” to use the language of Edwards J. in T. M. v. Minister for Justice, Equality and Law Reform[2009] IEHC 500, at para. 84.

[83] The concept of dependence is to be interpreted broadly and in the light of the perceived benefit of family unity and the principles of freedom of movement.

[84] For the purposes of making the assessment, the proofs required, although remaining in the discretion of member states, must not impose an excessively burdensome obligation on an applicant or impose too heavy a burden of proof or an excessive demand for the production of documentary evidence. The requested member state must justify the refusal and therefore must give reasons which explain and justify the refusal.

[85] When the case law identifies the requirement that the dependence be “real”, this means that the dependence must be something of substance, support that is more than just fleeting or trifling, and support that must be proven, concrete, and factually established. However, an applicant does not have to establish that without that real or material assistance he or she would be living in conditions equivalent to destitution. Dependence may be for something more than help to sustain life at a subsistence level and no more.

[86] What is to be assessed is whether a family member has a real need for financial assistance and not whether that person could survive without it. Thus stated, it is a test of the facts and not an interrogation of the reasons for the support.”

29. At para. 111, Baker J stated that the application of the test had to be done in a rational manner. The decision-maker must give reasons that are transparent and involve an objectively reasonable engagement with the facts.

30. In the subsequent case of Dar v Minister for Justice & Equality [2023] 3 IR 224, the Court of Appeal endorsed the test that had been laid down by Baker J in the VK case. It went on to consider whether there was any obligation on the Minister to consider, in addition, whether there was a social dependency between the applicant and the sponsor. In answering that question, the court concluded that there was no support for a concept of dependency that incorporated a freestanding test of social dependency. The single concept of dependency was to be assessed by reference to the financial and social conditions of the applicant for residency which must demonstrate that the applicant is not in a position to support themselves. The court stated that the law was clear that the reference to support meant material support. The issue was not one of social dependency. The court noted that it was difficult to understand precisely what a social dependency might involve if it were to mean something other than emotional dependency. On the other hand, it was easier to understand the reference to ‘financial and social needs’ in para 94 of the VK judgment, as incorporating the personal circumstances of an applicant. Those personal circumstances must lead to a position which demonstrated that an applicant was unable to support herself and was dependent on the EU national for that material support. The court reiterated the test for dependency in the following way at para. 41:

“The test for dependency i.e. the finding of a 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…” (Reyes v. Migrationsverket at para. 21). That requires an assessment of whether, having regard to financial and social conditions, the family member is not in a position to support herself (Reyes v. Migrationsverket para. 22). Therefore, financial conditions must be a part of the assessment of whether there has been a need for material support.

The Minister was obliged to assess whether, having regard to her financial and social conditions, Mr. Dar’s mother was not in a position to support herself materially. That necessarily involved a consideration of her financial circumstances. Mr. Dar’s mother, for whatever reason, did not provide any information in that regard. No finding of dependency could be made in those circumstances. An applicant cannot divide up the assessment and demand that her social conditions only be taken into account; the status of dependency requires a consideration of the factual situation which is characterised by material support being provided. That requires an assessment of both financial and social conditions.”

31. In her judgment in the present case, Jackson J. noted that there was no dispute between the parties that the burden of proof of dependency lay on the applicants and that the standard of proof was on the balance of probabilities: see para.18. It had been accepted by the parties that the test for dependency was that laid down by the Court of Appeal in the VK case. The judgment also refers to a consensus that was reached between the parties at that hearing in relation to the status of financial dependency arising from the payment of educational fees. Jackson J. noted as follows at para. 28:

“It was accepted by counsel for the applicants and the respondent herein that, subject always to the necessity of proving same, the discharge of fees for attendance on a full-time basis at an educational establishment could give rise to circumstances of dependency.”

Discussion and Conclusions.

32. In considering the applicants’ challenge to the decision of the respondent on the issue of fact that the second and third applicants had not established that they were financially dependent upon the first applicant, the court is mindful of the dicta of Binchy J in Abbas v Minister for Justice [2021] IECA 16, where he stated as follows at para. 101:

“The outcome of these proceedings depends, not upon the opinion of this Court as to whether or not the second named respondent was dependent upon the first named respondent while the former was in Pakistan during the period from November 2011 to January 2014, but rather upon whether or not the decision of the appellant on the question of the claimed dependency in Pakistan during this period was so unreasonable as to offend the principles established in O’Keeffe v. an Bord Pleanála [1993] 1 IR 39 and Keegan v. Stardust Compensation Tribunal [1986] IR 642. It is well established that the courts should be very slow to interfere with the decisions of specialist tribunals. That places a high bar in the way of a person seeking to set aside decisions of the appellant in applications made pursuant to reg. 5 of the Regulations."

33. The first ground of challenge to the decision was that the decision-maker had applied the wrong test insofar as it had not been stated clearly that the provision of educational expenses of itself could amount to essential support sufficient to establish dependency.

34. I hold that this objection is misconceived. I accept the submission which was made by Ms Hillery BL on behalf of the respondent, that when examining the legality of a decision in judicial review proceedings, one must look at the decision as a whole to determine whether the decision-maker has addressed all relevant points and whether he/she has made any error of law in so doing. It is not appropriate to parse a decision minutely to see if any shortcomings in language can be found.

35. In this case, it is clear that the decision-maker had had regard to the fact that educational expenses were discharged by the first applicant. He also looked at that expenditure in the context of the cash payments that were made by the first applicant over the years to the second and third applicants.

36. While it had been conceded in the earlier proceedings that payment of educational expenses could in certain circumstances constitute sufficient essential support to establish the fact of dependency, it is clear from a reading of the impugned

decision that the respondent did not consider such payments as being sufficient on their own to constitute essential payments sufficient to establish the fact of dependency in this case. That is obvious from the fact that the decision-maker went on to consider such payments in the overall context of the support provided by the first applicant to the second and third applicants over the years.

37. In holding that the combined payments were not sufficient to establish that the second and third applicants were financially dependent on the first applicant for the essentials of life, it is clear that one component thereof, being the payment of education expenses, was not sufficient on its own to establish dependency. Accordingly, there is no substance in this ground of challenge to the decision.

38. The second ground of challenge is that the decision-maker found that there was no narrative or documentary evidence in relation to the second and third applicants’ general living conditions and other possible sources of income. The applicants submitted that the respondent had acted unreasonably in this regard because he had disregarded the content of the affidavits sworn by the second and third applicants and by their siblings and by their stepmother.

39. In response, counsel for the respondent relied on the dicta of Binchy J in the Abbas case at para. 82, where he had stated that the legal character of statements made by a party was not of any particular significance. If statements had been sworn, then they would constitute evidence in a legal sense, but he stated that the content of the statements, regardless as to their legal character (i.e. statement or affidavit), could never amount to anything more than mere assertion. Accordingly, it was submitted that the

decision-maker had been entitled to disregard statements that were made in the affidavits and statutory declaration sworn by the applicants and others on their behalf, which were not supported by documentary evidence.

40. One must be careful of taking isolated dicta from a lengthy judgment as support for a general proposition. Binchy J was not saying that affidavit evidence is not to be considered or relied upon. What he said was that affidavits from applicants which were unsupported by documentary evidence, were only mere assertions, therefore they may have little probative value. At para. 83 of his judgment, the judge had made it clear that the decision-maker could not be expected to accept either the contents of an unsworn statement made, or an affidavit sworn by an applicant for residency, at face value, in the absence of supporting documentation. He stated that the quality of that documentation was obviously central to the consideration of the applications. On the other hand, it was not open to the decision-maker to ignore such statements either. He stated that the credibility of their statements should be assessed in the light of the supporting documentation provided.

41. In SK and JK v Minister for Justice [2022] IEHC 591, Ferriter J referred to the dicta of Binchy J in the Abbas case and stated as follows:

“41. It is clear from the authorities (e.g. Abbas v Minister for Justice and Equality [2021] IECA 16, Binchy J at para. 83) that the Minister is entitled to disregard mere assertion when dealing with claims made either in unsworn statements or affidavits where assertions are made in the absence of supporting documentation.”

42. In the present case, affidavits or statutory declarations had been sworn by all three applicants and by their four siblings and by their stepmother. The second and third applicants stated on oath that they were in full-time education and did not have any source of income. Their siblings swore affidavits stating that the first applicant was financially supporting the second and third applicants and that the deponents could not support them. The applicants’ stepmother stated that the first applicant had assumed responsibility for the second and third applicants and that she could not afford to support them.

43. It is very difficult to prove a negative. Ordinarily there will not be documentary evidence to establish that you do not have an alternative source of income. The most that one can do is to swear an affidavit that they do not have any other source of income and exhibit documentation that is consistent with that assertion.

44. In this case, the second and third applicants swore affidavits stating that they did not have any other source of income, other than what they received from the first applicant. This was supported by the bank records they provided. It was also supported by the four affidavits from their siblings and from their stepmother. It was also consistent with the fact that when their father died, they were minors of 16 and 11 years of age respectively.

45. If the decision-maker was going to come to a conclusion which effectively rejected the entirety of this body of evidence, it was incumbent on him to do so in clear terms and to say why this evidence was being rejected. That was not done in the

decision. It will have to be struck down on this ground.

46. The third ground of challenge to the decision was that the respondent required an unreasonable chain of evidence between receipt of funds from the first applicant and expenditure of those funds on the items in respect of which receipts had been produced.

47. I consider this ground of challenge is well-founded. When one looks at the totality of the documentation submitted, it is clear that substantial payments were made by the first applicant to the second and third applicants in the years after their father's death. When a person gets money into their bank account, they will usually use that money to make purchases as required. They may pay for the purchases in cash, or by credit or debit card. In the present case, the receipts furnished seem to be in relation to cash purchases.

48. I hold that it is asking too much to expect an applicant to produce a clear link between receipt of funds and the use of the funds where they are being used to buy the ordinary necessaries of life on a day-to-day basis, where payment is by cash.

49. Insofar as the respondent found that there was no evidential nexus between receipt of the funds by the second and third applicants and the purchase by them of the items in respect of which receipts were produced; I hold that the respondent applied an unreasonable burden on the applicants. The court is conscious of the dicta of Baker J. at para 84 in the VK case, where the learned judge cautioned against applying an excessively onerous burden on applicants in this regard.

50. Accordingly, I hold that the respondent erred in law in applying an unreasonable burden on the applicants in having to establish that these day-to-day purchases were purchased with funds provided by the first applicant.

51. The applicants also challenge the decision on the ground that the respondent had conflated the requirements of the test under Article 8 ECHR with the test required under Article 3(2) of the Directive and under the 2015 Regulations. In particular, insofar as it was implied in the decision that there had to be some evidence of emotional ties as well as financial dependency.

52. I am satisfied that there is some substance in this argument. Having made the key findings on dependency as outlined above, the decision-maker continued by finding that the applicants had not provided sufficient information or documentary evidence of their social/emotional relationship with their EU citizen sponsor, which could be considered more than the "normal emotional ties" expected between siblings. Consequently, the decision-maker found that the second and third applicants had not proven that they were financially or socially dependent on their EU citizen sponsor as claimed.

53. I accept the submission that insofar as this portion of the decision may be taken as implying that there was an additional hurdle which had to be crossed by the applicants over and above showing financial dependency, the decision-maker had erred in law. That may have been due to the fact that the applicants had submitted documentation in the form of WhatsApp records and photographs to show an emotional attachment between the first applicant and the second and third applicants. That was not relevant to the issue of financial dependency. However, once raised by the applicants, it is understandable how the respondent came to deal with it in his decision.

54. I am satisfied that the main grounds for the refusal of the visa applications made by the second and third applicants were those outlined above in relation to the lack of proof of financial dependency. I would be prepared to sever this part of the decision if the remainder of it had been lawful and sufficient to support the finding of lack of dependency.

55. Finally, the applicants submitted that there were several legal and factual errors in the decision which rendered it invalid. In particular, they pointed to the fact that the

decision referred to the applicants having brought their application pursuant to Art. 3(1) of the Directive, rather than Art. 3(2), as was in fact the case. Furthermore, there had been a number of references to "son", "spouse" and "brothers" in the decision which were clearly incorrect.

56. I am not satisfied that these somewhat minor typographical errors are sufficient to warrant striking down the decision. As stated above, when read as a whole, it is clear that the reason for the refusal of the applications was because it was held that the second and third applicants had not proven financial dependency on the first applicant. The errors in the decision were minor. I would have been prepared to sever them from the

decision if it had been a valid decision overall.

Proposed Final Order.

57. For the reasons set out herein, I will grant the applicants certiorari of the two decisions both dated 15 May 2024 in respect of the applications made by the second and third applicants. Therefore, I would propose to make final orders in the terms of paragraphs 1 and 2 of the applicants’ notice of motion dated 20 November 2024.

58. As this judgment has been delivered electronically, the parties shall have two weeks within which to furnish brief written submissions on the terms of the final order and on costs and on any other matters that may arise.

59. The matter will be listed for mention at 10.30 hours on 3 December 2025 for the purpose of making final orders.