Hart Nwosu v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 10 March 2017 |
| Neutral Citation | [2017] IEHC 372 |
| Docket Number | [2015 /375/ JR] |
| Court | High Court |
| Date | 10 March 2017 |
[2017] IEHC 372
THE HIGH COURT
JUDICIAL REVIEW
Faherty J.
[2015 /375/ JR]
AND
Asylum, Immigration and Nationality – Refusal of visa application – Policy document on Non-EEA Family Reunification (the Policy Document) – Assessment of financial considerations – Right to residence – Prima facie rights
Facts: The applicants sought an order of certiorari against the decision of the respondent for refusing to grant visa to the second named applicant to join the first named applicant in Ireland. Subsequent to the refusal decision, the applicants filed an application for review of that decision and the Appeals Officer refused that application. The applicants contended that the Appeals Officer erred manifestly in law and acted unreasonably in adhering strictly to the terms of the relevant policy document on Non-EEA Family Reunification (‘Policy Document’) to the applicants' application without consideration of applicants' constitutional rights. The applicants argued that the finding of the Appeals Officer that the grant of visa might result in cost to the public funds was irrational as there was a change in the applicants' financial position since the decision on the original application.
Ms. Justice Faherty denied the relief sought by the applicants. The Court held that in the present case, the review decision maker considered every aspect of the applicants' submissions. The Court ruled that the decision of the respondent was proportionate and the first instance decision maker considered the constitutional rights of the first named applicant. The Court held that the review decision maker considered the income threshold set out in the Policy Document to assess the financial status of the second named applicant.
This is an application for a judicial review seeking, inter alia, an order of certiorari to quash the decision of the respondent to refuse the grant to the second named applicant of a visa to join his spouse (the first named applicant) in the State.
The first named applicant is a health care worker and an Irish citizen. The second named applicant is a business owner and a Nigerian citizen. The first named applicant was born in Nigeria but moved to Ireland in 2002. In 2008, she was granted three years permission to remain in the State. In her grounding affidavit, the first named applicant avers that she met the second named applicant in 2009 when she went to Nigeria on holiday. During that time they became romantically involved. After she returned to Ireland they maintained their relationship by way of electronic communication. The first named applicant returned to Nigeria to visit the second named applicant on numerous occasions thereafter. In 2011, the first named applicant's permission to remain in this State was renewed for a further three years. On 27th June, 2014, the applicants were married in a registry office in Lagos. The first named applicant remained in Nigeria until July, 2014. On 20th September, 2014, she became an Irish citizen.
In or about February, 2015, the second named applicant applied to the respondent for a visa to join the first named applicant in Ireland. This application was refused by the respondent by decision dated 8th April, 2015.
On 19th May, 2015, the applicants, through their solicitor, applied for a review of the respondent's decision. By letter dated 11th June, 2015, the second named applicant was informed of the respondent's decision to refuse the application for a review. In summary, the reasons for the refusal were the same as those which were set out in the first instance refusal, namely that the granting of the visa ‘may result in a cost to public funds’ and ‘may result in a cost to public resources’. The applicants were informed that their appeal had been examined in accordance with the ‘Policy Document on Non– EEA Family Reunification’ (the Policy Document) which, the applicants were informed, had been prepared ‘in accordance with public policy and in observance of the constitutional, ECHR and other rights of the parties and of society in general’ and that such rights had been examined in the particular circumstances of the second applicant's case including the correspondence dated 19th May, 2015 from the applicants' solicitor and all supporting documentation. The Appeals Officer's decision is more particularly set out elsewhere in the judgment.
Leave was granted to the applicants to challenge the decision by Order of Mac Eochaidh J. dated 13th July, 2015.
The grounds of challenge are as follows:
(i) The respondent erred manifestly in law and acted unreasonably and irrationally and fettered her own discretion in solely applying the terms of her Policy Document in order to refuse the application. The respondent applied the said Policy Document to the application in respect of the finances of the first named applicant and refused the application as a result without also and simultaneously considering and weighing in the balance, the rights of the applicants pursuant to the European Convention on Human Rights (the Convention) and the Constitution. The proportionality exercise undertaken by the respondent was unlawful as the visa was refused based solely on financial considerations and prior to any assessment of the individual rights in question.
(ii) The respondent erred manifestly in law and acted unreasonably and irrationally and fettered her own discretion in applying strictly the terms of her Policy Document in order to refuse the application. The respondent acted unreasonably and irrationally in applying the strict and rigid policy in all of the circumstances and acted unreasonably and irrationally in failing to consider at all the first named applicant's current and future income and employment status in the State. This was so in circumstances where there was evidence before the respondent that the first named applicant's financial position had altered dramatically since the original application.
(iii) The respondent acted unreasonably and irrationally in determining that the claim for family reunification was not ‘a strong one’. The said conclusion was unreasonable and irrational as it was based upon irrelevant matters and had been arrived at without lawful regard for the constitutional, private and family life rights of the applicants.
(iv) The respondent erred manifestly in law and acted unreasonably and irrationally in applying a test of ‘exceptional circumstances’ within a proportionality exercise.
(v) The respondent erred manifestly in law and acted unreasonably and irrationally in reaching a decision on the application in a manner entirely contrary to the provisions of Article 41 of the Constitution which provides for a prima facie right of the applicants to reside together in the State. The respondent erred manifestly in law and acted unreasonably and irrationally and contrary to the provisions of the Constitution in arriving at a decision that was not proportionate in all of the circumstances and it was fundamentally irrational insofar as it failed to consider / make any allowance for, within the proportionality exercise conducted, the up to date position in respect of the first named applicant's finances.
(vi) The respondent erred manifestly in law and acted unreasonably and irrationally in upholding the first instance decision to the effect that there was ‘no less restrictive process available which would achieve the legitimate aims of the State to safeguard the economic well being of the country’ without considering any other processes. This was in circumstances where the applicants had stated that the second named applicant was prepared to accept a visa that would disallow recourse to public funds, to which no consideration was given by the respondent.
In aid of ground (i) of the statement of grounds, it is submitted that the Appeals Officer erred in adhering strictly to the provisions of the Policy Document in order to determine the appeal without any significant or proper identification of or consideration of the applicants' constitutional rights. The respondent is not permitted as a matter of law to operate a rigid policy in respect of the financial status of persons without at the same time operating a policy which would take into account the individual rights of the parties concerned, in particular those rights under the Constitution. It is submitted that the respondent in this case fell into error in reaching the decision to refuse the visa based on the financial considerations in her Policy Document without conducting a simultaneous proportionality assessment having regard to the rights at play. What is clear from the decision is that every assessment made of the applicants' circumstances, including their Art. 8 ECHR and constitutional rights, was approached only from the perspective of financial considerations.
Counsel submits that the decision does not in any way reflect the significance of the first named applicant's Art 41constitutional rights. Such rights merit only one line in the first instance decision, as adopted by the review decision-maker. Thus, the decision- maker acted irrationally and disproportionally in relying only on financial circumstances and in following the Policy Document to refuse the application. Counsel submits that this approach is contrary to established jurisprudence, especially Gorry v. Minister for Justice [2014] IEHC 29 and Ford v. Minister for Justice [2015] IEHC 720. It is submitted that the approach of Eager J. in Ford is particularly apt to the applicants' circumstances.
Counsel contends that, on appeal, the respondent essentially dealt with the question of constitutional rights only...
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