BB v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 30 September 2022
• Neutral Citation: [2022] IEHC 536
• Court: High Court
• Docket Number: Record No. [2021 No. 904 JR]

Between

BB, NR, and AB (A Minor Suing Throug her Father and Next Friend, BB)

Applicants

and

The Minister for Justice

Respondent

[2022] IEHC 536

Record No. [2021 No. 904 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Visa application – Unreasonableness – Applicants seeking an order of certiorari quashing the appeal decision of the respondent – Whether the respondent’s decision was unreasonable

Facts: The applicants applied to the High Court seeking an order of certiorari quashing the appeal decision of the respondent, the Minister for Justice, of 20 August 2021 refusing the second applicant’s application for a Join-Family Visa to join the first applicant in the State. The applicants also sought an order directing that the second applicant’s application for the aforesaid visa be remitted to the respondent for full reconsideration. The third relief concerned declarations as to the legal rights and/or legal position of the applicants. A plea in damages was also made. Among the challenges to the lawfulness of the decision were those based on alleged unreasonableness and irrationality. Counsel for the applicants suggested that certain findings in the decision were “harsh”. That submission was made with specific reference to internal p. 13 of the respondent’s decision in which the Minister discussed one of the two issues which, on the applicant’s case, were central to the contention that exceptional circumstances justified the granting of a visa, namely, the health of the first applicant. Speaking to the issue of the first applicant’s health in respect of which the GP’s letter was the only medical evidence provided, counsel for the applicants made a submission to the effect that when one puts together the first applicant’s statements, what his solicitors have said on his behalf, coupled with the medical report and his poor employment history, one would imagine that this would be accepted as sufficient proof.

Held by Heslin J that what the Minister stated was in objective terms entirely accurate. Heslin J held that the views expressed by the respondent flowed from the material which was put before her and constituted views open to her to express, having regard to the evidence. Heslin J found that the core of the claim was the tension between a decision which was made lawfully by the respondent on the basis of the evidence which was before her and the applicant’s dissatisfaction with the outcome of a lawful decision making process in circumstances where they failed to meet the burden of proof. Heslin J held that the respondent carefully considered all the evidence, taking the view that it was insufficient to justify the grant of the visa, and there was no unlawfulness in the process by which the respondent arrived at that decision. Heslin J held that there was no departure from any principle with which the respondent was required to comply. Heslin J held that this was a case which was fact-specific, rather than one in which the court was asked to, or where it was at all necessary to ‘break new ground’ in terms of principle. Heslin J held that it was impermissible for the court to subject the respondent’s decision to granular analysis as if it were a piece of legislation; rather, the correct approach was for the court to stand back and look at the decision as a unitary whole and decide whether, read as such, the findings flowed reasonably and rationally from the evidence submitted. In Heslin J’s view, they did.

Heslin J held that the applicants had not established any of the grounds upon which they sought to impugn the decision. He dismissed the application. His preliminary view on the question of costs was that the ‘normal’ rule applied i.e. that ‘costs’ should ‘follow the event’, the respondent being the entirely successful party.

Application dismissed.

JUDGMENT of Mr. Justice Mark Heslin delivered on the 30th day of September, 2022

Introduction

1 . The primary relief sought by the applicants is an order of certiorari quashing the appeal decision of the respondent of 20 August 2021 refusing the second applicant's application for a Join – Family Visa to join the first applicant in the State. The second relief seeks an order directing that the second applicant's application for the aforesaid visa be remitted to the respondent for full reconsideration, whereas the third relief concerns declarations as to the legal rights and/or legal position of the applicants. A plea in damages is also made. There is no issue arising with regard to ‘time’. By order made on 8 November 2021 (Barr J.) the applicants were granted leave to apply by way of an application for judicial review for the reliefs set out at para. [d] on the grounds set out at para. [e] of the applicant's statement of grounds as filed on 28 October 2021.

Relevant chronology

2 . From a careful consideration of the pleadings and exhibits, a number of matters emerge which, for the sake of clarity, can be set out in chronological order as follows.

3 . The first applicant is a gentleman who was born in Algeria in 1963. He came to Ireland in 1998 and applied unsuccessfully for asylum.

4 . In 2005 the first applicant married an Irish citizen, Ms. SH. He was granted permission to remain in Ireland on the basis of this marriage. The couple had one child together who was born in Ireland in 2005. That child is the third named applicant.

5 . The couple divorced in March 2017. The third named applicant, currently aged sixteen, resides with her mother, who is not a party to the proceedings. The first named applicant resides elsewhere in the same town in this State.

6 . The second named applicant is an Algerian citizen who was born in that country in 1972. At para. 2 of the “factual grounds” it is pleaded that the first and second named applicants:-

“ … knew each other as children and were re – introduced as adults in November 2016, as their parents had agreed that they would be well suited as husband and wife and had arranged this meeting. They got on well during this time, and the first applicant returned to Algeria in April 2017 in order to marry the second applicant. They were married on the 29th April 2017 in Algeria. They are in regular contact and have been hoping to live together in Ireland”.

7 . The first named applicant has a very limited history of employment within this State between 2006 and 2017. He has been in receipt of Jobseeker's Allowance for a lengthy period of time and is currently unemployed.

8 . On 11 September 2017, the second applicant applied to the respondent for a Long Stay Join Family (Irish naturalised Spouse) Visa (“the visa”) to join the first applicant in this State. The visa application was submitted through the Embassy of Ireland in Abu Dhabi.

9 . On 10 October 2017, the Irish Embassy requested copies of the first applicant's P60's. On 6 November 2017, the first applicant replied stating that he had been employed by a certain restaurant in a particular town in this State, in 2014, but whilst he had payslips, he did not have a P60. The first applicant stated that he could not consistently work in 2015 and 2016 due to illness. The first applicant submitted inter alia a contract of employment in respect of work as a chef commenced by the first applicant on 4 September 2017. In addition to payslips from previous employment, between March and September 2017, a bank statement was furnished showing a credit balance on 31 July 2017 of €1,304.55 as well as receipts for three money transfers totalling €700 from the first applicant, between March and June 2017. The first applicant also submitted a letter explaining that he was living in a one-bed apartment, was working, and could support the second applicant in the State, and also that the second applicant was qualified in computer programming and management and was confident she could find work here. The first applicant also submitted photographs of the couple together. The application included a letter from the first applicant's doctor, the contents of which I will refer to presently.

10 . On 16 November 2017 the respondent Minister refused the second applicant's application. This first instance refusal was communicated in a letter to the second applicant dated 16 November 2017 which summarised the reasons for the refusal. The two – page letter was accompanied by an eight – page appendix which went into detail in respect of the evidence analysed and the conclusions reached, upon which the adverse decision had been made. The aforesaid letter, as well as informing the second applicant that her application had been examined by the Irish Naturalisation and Immigration Service (“INIS”) in accordance with “Policy Document on Non — EEA Family Reunification” (“the Reunification guidelines” or “the Guidelines”) published by the respondent, effective from 1 January 2014, summarised the reasons for the refusal at first instance in the following terms:-

“Having taken all documentation and information submitted into consideration it has been decided to refuse your visa application for the following reasons;

ID: Policy Document: Your application does not meet the financial criteria as set out in para. 17.2 of the Policy Document on Non – EEA Family Reunification.

PF: Public Funds: The granting of the visa may result in a cost to public funds – your application does not satisfy the criteria as set out in para. 17.2 of the Policy Document on Non – EEA Family Reunification.

PR: Public Resources: The granting of the visa may result in a cost to public resources – your application does not satisfy the criteria as set out in para. 17.2 of the Policy Document on Non – EEA Family Reunification.

ID: Insufficient Documentation Submitted: Documentary evidence demonstrating the existence of a substantial and continuous relationship between you and your reference has not been submitted.

FM: There is no automatic right for non – EEA...