Ahmed v The Minister for Justice and Equality

 
FREE EXCERPT

[2018] IEHC 645

THE HIGH COURT

Barrett J.

2018 No. 38 JR

Between:
NUURTO ABDIKADIR AHMED, ABDIRAHMAN MOHAMED OSMAN

and

LEYLO MOHAMED OSMAN (a minor suing through her mother and next friend)
NUURTO ABDIKADIR AHMED
Applicants
– and –
THE MINISTER FOR JUSTICE AND EQUALITY
Respondent

Asylum & Immigration – Judicial review – Refusal of visas – Deficiencies in refusal decisions

Facts: The first applicant was the mother of two minors, who had been refused visas to enter the state. The appeals against the refusals had been dismissed by the Minister. The first applicant now applied for various reliefs.

Held by Barrett J, that the application would be granted. From examination of the proceedings below, it was clear there were several defects in the decisions, which justified remitting the proceedings back to the Minister for reconsideration.

JUDGMENT of Mr Justice Max Barrett delivered on 19th November, 2018.
1

Ms Ahmed is an Irish citizen. She is the mother of the Osmans, Somali nationals resident in Ethiopia. She is also the mother of a young man of 18 years, resident in Ireland, a brother of the Osmans. He suffers from a physical disability and an illness so severe that Ms Ahmed cannot work outside the home and so cannot earn any income additional to her carer allowance, not even to the limited extent to which such work is permitted under the carer allowance scheme.

2

The decisions now before the court arose as follows: on 05/10/2016, application for two "join family" visas were submitted for Mr AM Osman (then eight days shy of his 18th birthday) and Miss LM Osman (then and now a minor). The Osmans reside with their father in Ethopia; he is claimed to be of such an age that he finds caring for his children difficult. By letter of 30/05/2017, the Irish Embassy in Addis Ababa advised the Osmans that their visas had been refused. By letter of 28/07/2017, these decisions were appealed. By letters of 20/10/2017, the Minister refused the appeals. These proceedings followed. There are a number of deficiencies in the appeal decisions.

3

'No Medical Documents'. When it comes to the alleged ailing health of the Osmans" father, the Minister states: 'No medical documents have been provided'. This is wrong. A medical certificate has been provided.

4

No Special/Exceptional Circumstances? The appeal decisions indicate that '[t] he...officer has considered all matters and documents submitted with regard to the application and whether there are any special circumstances... and...concluded that there are none'. This is an intended reference to the Department's Policy Document on Non-EEA Family Reunification (December 2016) (the "Reunification Policy"), para.1.12, which states: '[D] ecision-makers...retain the discretion to grant family reunification in cases that...do not appear to meet the requirements of the policy....rare cases that present an exceptional set of circumstances...'. Three points arise. (1) The test that para.1.12 indicates will be brought to bear is ' exceptional circumstances'; the impugned decisions state the decision-maker looked for ' special circumstances'; so a different test was brought to bear (just how different is unclear). (2) The court respectfully does not consider it adequate in terms of reasoning, in circumstances where (a) a young man has a lifelong physical disability, (b) is otherwise so unwell that his mother (i) is in receipt of a carer's allowance and (ii) just cannot (under the terms of the allowance or as a matter of practicability) take up paid employment so as to bring herself above the financial thresholds identified in the Reunification Policy, (c) a specialist medical doctor/registrar has indicated that '[the young man] would benefit hugely...

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