Elmebayad v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 07 June 2019
• Neutral Citation: [2019] IEHC 412
• Court: High Court
• Docket Number: [2017 No. 605 J.R.]
• Date: 07 June 2019

BETWEEN

AHMED ELMEBAYAD

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2019] IEHC 412

Keane J.

[2017 No. 605 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Visa – Rationality – Applicant seeking judicial review of a decision made on appeal by the respondent to refuse the applicant a visa authorising him to enter the State – Whether the respondent’s decision was irrational

Facts: The applicant, Mr Elmebayad, applied to the High Court seeking judicial review of a decision made on appeal by the respondent, the Minister for Justice and Equality, on 9 June 2017 to refuse the applicant a visa authorising him to enter the State. The applicant contended: first, that the Minister’s decision was unreasonable in that irrelevant considerations were taken into account; second, that the Minister failed to put Mr Elmebayad on notice of the Minister’s concern that Mr Elmebayad had failed to provide an up to date contract of employment; third, that the decision was irrational; and fourth, that the Minister failed to provide reasons for the decision.

Held by the High Court (Keane J) that the Minister did not fail to give adequate reasons for his decision. Keane J rejected Mr Elmebayad’s unsupported assertion that the Minister’s decision failed the test of reasonableness under the principle identified by Henchy J in State (Keegan) v The Stardust Victims Compensation Tribunal [1986] IR 642. Keane J did not accept that there was any irrationality in the Minister’s refusal of a visa to a person who had been granted a work permit. Keane J held that there was nothing to suggest that the Minister did not take into consideration the documentation that Mr Elmebayad provided, before indicating that he considered it insufficient in the absence of a contract of employment and an up-to-date letter of offer. Keane J held that this was a matter squarely within the Minister’s discretion.

Keane J held that the application for judicial review would be refused.

Application refused.

JUDGMENT of Mr Justice David Keane delivered on the 7th June 2019

Introduction

1 This is the judicial review of a decision made on appeal by the Minister for Justice and Equality (“the Minister”) on 9 June 2017 to refuse the applicant Ahmed Elmebayad a visa authorising him to enter the State.

Background

2 Mr Elmebayad is a male Egyptian national born in 1983.

3 On 24 September 2015, the Minister for Jobs, Enterprise and Innovation [the MJEI] wrote to Mr Elmebayad's proposed employer, Sparks Café & Bistro Limited (“Sparks”), to inform that company that he had been granted an employment permit under s. 8 of the Employment Permits Act 2006, as amended (“the Act of 2006”).

4 The employment permit granted to Mr Elmebayad recites on its face that it was valid from 24 September 2015 to 23 September 2017. It identifies Mr Elmebayad's proposed employer as Sparks and his proposed job as that of “Middle Eastern Halal Chef.”

5 On 10 January 2017, the Embassy of Ireland in Cairo, Egypt, wrote to Mr Elmebayad to inform him that his application for an Irish visa had been refused by the Irish Naturalisation and Immigration Service (“INIS”). The reasons given for that refusal were as follows:

“ID:- Authenticity of documents – the documents you submitted regarding your previous work experience and education are poor quality photocopies. It would be beneficial if you submitted originals.

ID:- Insufficient documentation submitted in support of your application:- please see link to ‘Documents Required’ as displayed on our website – www.inis.gov.ie – you have not submitted a copy of your employment contract. You have not submitted a letter from your employer in Ireland confirming details of the job being taken up and the salary being offered. In addition, it is noted that you are allegedly a halal chef. In this regard it is noted that the proposed place of employment does not serve any halal food whatsoever; rather on the contrary it serves non-halal food including pork and alcohol. Therefore it does not seem plausible that an alleged halal chef would work in such a place.

IH:- Immigration history of applicant – according to our records you were previously in Ireland in 2006 however it is unclear when you actually left the State and this requires clarification and documentary proof e.g. by submitting a copy of all previous passports/household bills/bank statements/employment history/educational history etc. Indeed a full-account of your immigration history/whereabouts since you entered Ireland in 2006 would be beneficial.

OC:- Observe the conditions of the visa – the visa sought is for a specific purpose and duration:- the applicant has not satisfied the visa officer that such conditions would be observed – Based on the information & documentation provided, you have not demonstrated that you would observe the conditions of the visa sought.

PF:- The granting of the visa may result in a cost to public funds – Based on the information and documentation provided, you have not demonstrated that you would observe the conditions of the visa sought.

PR:- The granting of the visa may result in a cost to public resources – Based on the information & documentation provided, you have not demonstrated that you would observe the conditions of the visa sought.”

The letter went on to inform Mr Elmebayad that he could appeal the decision within 2 months of the date of that letter, and that all additional documents should be submitted with his appeal.

6 Mr Elmebayad's solicitors wrote to the INIS to appeal that refusal on 22 February 2017, endeavouring to address each of the six reasons that were provided for it.

7 On 9 June 2017, the INIS wrote to Mr Elmebayad to inform him that his appeal had not been successful. The reasons provided for the refusal of a visa on appeal were as follows:

“ID:- Insufficient documentation submitted in support of your application:- please see link to ‘Documents Required’ as displayed on our website – www.inis.gov.ie

- You have not submitted a copy of your employment contract with your prospective Employer in Ireland with your appeal. The letter from the prospective employer is dated November 2015 and no up-to-date letter has been submitted.

IH:- Immigration history of the applicant – You have not submitted any documentation clarifying when you actually left the State in 2006.

OC:- Observe the conditions of the visa – the visa sought is for a specific purpose and duration:- the applicant has not satisfied the visa officer that such conditions would be observed – Based on the information & documentation provided with your appeal, you have not demonstrated that you would observe the conditions of the visa sought.”

Procedural history

8 By order made on 24 July 2017, O'Regan J granted the applicant leave to seek judicial review of the deportation order. The application is based on a statement of grounds, dated 21 July 2017 and filed on the same day, and is subtended by an affidavit sworn by Mr Elmebayad almost one week earlier on 15 July 2017. In accordance with the order of O'Regan J, a notice of motion issued on 21 August 2017, returnable on 6 November 2017. The Minister's statement of opposition, dated 24 November 2017, was filed on the same day.

The grounds of challenge

9 In the written submissions made on his behalf, the applicant contends: first, that the Minister's decision was unreasonable in that irrelevant considerations were taken into account; second, that the Minister failed to put Mr Elmebayad on notice of the Minister's concern that Mr Elmebayad had failed to provide an up to date contract of employment; third, that the decision was irrational; and fourth, that the Minister failed to provide reasons for the decision.

Argument and Analysis

i. the executive power of the Minister to control immigration

10 In Bode (a minor) v Minister for Justice [2008] 3 IR 663 (at 689-690), Denham J explained:

“[60] In this case one of the fundamental powers of a state arises for consideration. In every state, of whatever model, the state has the power to control the entry, the residency, and the exit of foreign nationals. This power is an aspect of the executive power to protect the integrity of the State. It has long been recognised that in Ireland this executive power is exercised by the Minister on behalf of the State. This was described by Costello J. in Pok Sun Shun v. Ireland [1986] I.L.R.M. 593 at p. 599 as:-

‘In relation to the permission to remain in the State, it seems to me that the State, through its Ministry for Justice, must have very wide powers in the interest of the common good to control aliens, their entry into the State, their departure and their activities within the State.’

[61] The special role of the State in the control of foreign nationals was described by Gannon J. in Osheku v. Ireland [1986] I.R. 733 at p. 746. He stated at p.746: -

‘That it is in the interests of the common good of a State that it should have control of the entry of aliens, their departure and their activities and duration of stay within the State is and has been recognised universally and from earliest times. There are fundamental rights of the State itself as well as fundamental rights of the individual citizens, and the protection of the former may involve restrictions in circumstances of necessity on the latter. The integrity of the State constituted as it is of the collective body of its citizens within the national territory must be defended and vindicated by the organs of the State and by the citizens so that there may be true social order within the territory and concorde maintained with other nations in accordance with the...