Ford & Nwoke v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Eagar
• Judgment Date: 19 November 2015
• Neutral Citation: [2015] IEHC 720
• Court: High Court
• Date: 19 November 2015

Ford & Nwoke v Min for Justice

JUDICIAL REVIEW

BETWEEN

ALISON FORD AND DAVID NWOKE

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2015] IEHC 720

[No. 416 J.R./2014]

THE HIGH COURT

Asylum, Immigration & Nationality – Art. 41 of the Constitution – Non EEA family reunification – Ex parte application – Art. 8 of the European Convention on Human Rights

Facts: The applicants sought an order of certiorari for quashing the decision of the respondent refusing to grant visa and permission to reside in the State of Ireland to the second named applicant, a non-EU national who had been married to the first named applicant, an Irish national. The respondent contended that its refusal to grant the visa application to the second named applicant was justified as the applicants were not going to face any insurmountable difficulties and that the grant of visa might result in cost to public funds.

Mr. Justice Eagar granted an order of certiorari to the applicants for quashing the decision of the respondent and directed that the application should be considered anew by the appeals officer with liberty to the applicants to make fresh submissions if there were any. The Court held that the respondent was obliged to take into account both art. 41 of the Constitution and art. 8 of the European Convention on Human Rights while balancing the rights of the State with the rights of the applicants. The Court cited with approval the dicta of Hogan J. in Gorry, X.A. (a minor) & Ors. v EA and PA (an infant suing by his father and next friend BA) that a decision, which, in practice compelled the couple to live more or less apart, was a significant interference by the State with the core principle cherished and protected under said art. 41 of the Constitution. The Court opined the respondent must exercise its discretion in accordance with the powers granted to it by the legislature and in conformity with the principles of natural justice.

1 JUDGMENT of Mr. Justice Eagar delivered on the 19th day of November, 2015

2 1. On the 21 ^st July, 2012, the applicants made an ex parte application for leave to apply by way of an application for judicial review seeking an order of certiorari quashing the decision of the respondent of the 17 ^th June, 2014 to refuse to grant a visa to the second named applicant to enter and reside in the State. On that date McDermott J., granted leave to the applicants to apply by way of application for judicial review for the following relief:

3 An order of certiorari quashing the decision of the respondent of the 17 ^th June, 2014, to refuse to grant a visa to enter and reside in the State to the second named Applicant.

Ground for relief

4 2. The applicants rely in effect on four separate grounds as follows:

5 a a. The respondent erred manifestly in law and acted unreasonably and irrationally in reaching a decision on the application for a visa in a manner entirely contrary to the provisions of Article 41 of the Constitution which provides for prima facie rights for the applicants to reside together in the State, and provides that the State guards, with special care, the institution of marriage.

6 b b. The respondent erred manifestly in law and acted unreasonably, irrationally and contrary to the provisions of the Constitution in conducting the entire assessment in the applicant's case on appeal from the standpoint that the marriage between the Applicants can be continued without the applicants living together at all and solely on the basis of the first applicant visiting Nigeria.

7 c c. The consideration in the applicant's case is prima facie unlawful in circumstances where the fundamental nature of the marital bond has been misunderstood by the respondent.

8 d d. The proportionality assessment carried out by the respondent is unlawful where it does not have as its starting point the requirement that the married couple reside together, and the decision is invalid as a consequence.

Factual history

9 3. The affidavit of the first named applicant, she set out that she was the spouse of the second applicant. She stated that she is an Irish national born in the State on the 12 ^th May, 1973. She was introduced to the second applicant by a mutual friend in or around 2010. She and the second applicant were in electronic communication (and this Court understands that this related to telephone communications and other social media including Skype). The first applicant met with the second applicant in person in the United Kingdom in January 2011. She stated that he was in the UK to visit, and she flew from Ireland to the UK to see him and they commenced a loving relationship. She says that since that time they have been in a committed relationship and that after the second applicant returned to Nigeria in February 2011, they maintained their relationship by way of electronic communication.

10 4. On the 1 ^st October, 2013 the first applicant travelled to Nigeria and remained there until the 15 ^th Otober, 2013. During this time the applicants were married. The first applicant had travelled to Nigeria with the intention of marrying the second applicant. She also set out her description of Nigeria as an extremely dangerous place and that while she was there she was under constant protection from the second applicant and his friends.

11 5. She accepts that it was her assumption that if she married the second applicant, that there would be no difficulty with them being granted a visa to enter the State. It was also her view that the visa would naturally be granted as the marriage could not subsist otherwise. He was also prepared to come to Ireland to live with her. She has three children and these children are Irish citizens and aged approximately 21, 12 and 6. The two youngest children will be unable, for obvious reasons, to stop attending school and relocate to Nigeria. She had never considered moving to Nigeria as she is of the view that she would not be able to survive there.

12 6. In or around December 2013 / January 2014 the second applicant applied to the respondent to join the first applicant. This application was refused by the respondent by the decision dated 11 ^th April, 2014. In the course of this judgment I will revert to the decision at first instance by the respondent.

13 7. Following the refusal, both the first and second applicants applied for a review of the respondent's decision. By letter dated 29 ^th May 2014, from Messrs. Trayers & Co., solicitors for the applicants, a review of the respondent's decision was applied for. Attached to the letter from the solicitors was a personal letter from the first applicant addressed "to whom it may concern", and I will revert to that in due course.

14 8. By letter dated 17 ^th June, 2014 the second applicant was informed of the respondent's decision to refuse the application for review and this letter is exhibited, and I will revert to the letter in due course.

15 9. The first named applicant said she was surprised by this letter as it says that it was disregarding the previous finding that she could go to live in Nigeria and found that she could visit Nigeria instead.

16 10. By way of comment in her affidavit, she said that she finds it remarkable that the respondent has concluded that marriage is an institution that can seemingly exist perfectly without the parties being together. She says this is not her understanding of marriage. It is - and always was - her intention to live with her husband, share her home with him, to have children with him, and to live what she and most people in the country would know and describe as normal married life.

17 11. She says this cannot be done over the phone, on the internet or on the basis of occasional visits. She says, in her view that the respondent has not behaved in a reasonable way.

18 12. The respondent's statement of opposition was verified by the affidavit of Jackie Hannon, Higher Executive Officer of the Department of Justice and Equality. Ms. Hannon says that the respondent did not make a decision communicated by letter dated 17 ^th June, 2014, to the second applicant "to refuse the said application for a review" as averred by the first applicant at para. 7 of her affidavit sworn 15 ^th July, 2014. She said that the letter dated 17 ^th June, 2014, comprised the notification of the outcome of the second applicant's appeal (which had been made by letter dated 29 ^th May, 2014) and that the said appeal was fully considered and that a full consideration took place and a reasoned decision made. She states that the respondent took all relevant matters into account upon the second applicant's application for a "Join Spouse" visa, and upon appeal, which was determined and notified by letter dated 17 ^th June, 2014, she noted that the first applicant accepts that it's consideration and assessment of the second applicant's application for a visa and subsequent appeal that the respondent "considered the pertinent issues in this case". She said there appears to be no dispute arising on the facts as pleaded save that the respondent does not necessarily accept the characterisation of those facts as averred by the first applicant in her affidavit, and says that as the facts are agreed the matter is one for legal submissions.

The first decision on the application for a visa

19 13. This document was dated 11 ^th April, 2014 and signed by the Visa Office, Embassy of Ireland, Abuja, Nigeria. It is headed "Consideration under Article 8 of the European Convention on Human Rights" and it states that "the application has been examined in accordance with the Policy Document on Non-EEA Family Reunification ("the Policy Document") published by the Minister for Justice and Equality ("the Minister") which is effective as of the 1 ^st January, 2014. The policy document has been...