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Check out this interesting discussion carefully.

Now, suppose that I am a citizen of Ireland and I reside in a non-EEA country with my spouse, children, dependent parents and an unmarried sibling (who has been a member of the household since some 30 years or so). I wish to move to another EU country (let's say Germany; or, interestingly let's say I moved to Germany for 6 months to practice the Surinder Singh route to come back to Ireland). FACTS: My spouse is genuine, my genuine children are minors, my parents are genuinely dependent on me and I can prove that, and finally my unmarried sibling is a household member since 30 years. Under EU law, it is clear that all of my family is eligible to relocate to an EU country (other than Ireland; or in fact Ireland if I use Surinder Singh). BUT, it seems from that discussion that the rights of Extended family members are not as strong as those for Core family member, which User Relaxed confirms with some examples. Precisely, if they refuse my extended family member's (sibling's) application (even though I provide extensive and sufficient evidence) on say any grounds they like, I would effectively not have anything to claim since my there is no right possessed by my sibling as my other Core family members have in EU legislation. This way, my sibling would be left behind and I could not even argue for him in a court as he doesn't have any right in EU legislation like my other family members (who are "Core") have. I think this is why the lines about Extended family members' rights is a namesake thing. Do you have anything to prove me wrong? Do genuine Extended family member cases always win in the end provided there is sufficient evidence?

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    Could you focus a little more on your actual question and avoid misrepresenting and arguing with my comments? – Relaxed Aug 19 at 17:13
  • +1 I am sorry I did not intend to misrepresent. I included the keywords of what I saw in that discussion. My question was actually based on Montu Soni's and your discussion where you quite rightly argued how there is little legal help for extended members. How should I edit my question if you want me to delete misrepresentations? – Jay Shah Aug 19 at 17:32
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    Edit out everything you wrote before your edit. Forget the earlier discussion, which seems to have created a lot of confusion. It was never intended to claim anything about “many member states” or to imply that no judicial review was ever possible but only to highlight the fact that the rights for extended family members were not very strong. Forget in particular the bad mood and 90% comment, it was not about EU law specifically but was meant to make a different point. Reformat the last part of your question and make it about your current situation. – Relaxed Aug 19 at 17:54
  • @Relaxed I have modified my question significantly although I am worried that it might make Dale M's answer challenging to understand. – Jay Shah Aug 19 at 18:08
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    @JayShah if the question changes so much that existing answers are confusing then it is probably better to revert the question so the answer makes sense again and then ask the new version of the question as a new question. – phoog Aug 19 at 20:11
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There are three factors: the law, the facts and discretion

As a general rule, an administrative decision maker has to exercise their discretion to decide what the facts are and apply the law to those facts to arise at a decision. Usually the law will specify what must be considered, what can be considered and what must not be considered in making the decision.

Details differ by jurisdiction but judicial review can only examine errors of law made by the decision maker, not errors of fact or application of discretion. That is, if the decision make followed the law in deciding the facts and correctly applied the law to those facts then the judicial review will fail.

It is an error of law if the decision maker shows bias, does not give a fair hearing, fails to follow the mandated legal process, considers things that should not be considered (or vice-versa), reaches a conclusion on the facts that the evidence does not reasonably support or incorrectly applies the law (e.g. deciding red means go) among others.

Deciding on “silly grounds” is clearly a reviewable error.

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  • I appreciate your answer, but forgive me, I am new here and it seems a bit unclear to me. I'll be honest, I understand the things in your answer but fail to understand how they connect to each other and how that answers the question I have asked. Can you please align your answer with the particular questions I have asked? – Jay Shah Aug 19 at 15:11
  • I have edited the question. Do take a look at it. – Jay Shah Aug 19 at 16:34
  • Where did you take it from that judicial review cannot examine application of discretion? Circumstances when it can are defined in Kacem v Bashir [2010] NZSC 112 at [32]. Also, abuse of power (which technically is exercise of discretion) is reviewable. – Greendrake Aug 20 at 9:56

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