Hussein and Others v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 14 June 2023
• Neutral Citation: [2023] IEHC 316
• Court: High Court
• Docket Number: [Record No. 2022/553JR]

Between

Faaisa Shariff Hussein, Fardoowsa Shariff, Applicant No. 3 (A Minor), Applicant No. 4 (A Minor), Applicant No. 5 (A Minor), Applicant No. 6 (A Minor)

Applicants

and

The Minister for Justice

Respondent

[2023] IEHC 316

[Record No. 2022/553JR]

THE HIGH COURT

JUDGMENT of Mr. Justice Barr delivered electronically on the 14 ^th day of June, 2023.

Introduction.

1 . The first applicant is a Somali citizen. She has lawfully resided in Ireland since October 2021. She is the mother of the third to sixth named applicants, who are all minors. The second applicant is a Somali national and an Irish citizen. She has been in Ireland since 2004. She is the sister of the first applicant.

2 . In this application, the applicants challenge the legality of a decision of the respondent to refuse long stay visas to the third to sixth named applicants. The Minister has refused them permission to come to Ireland to reside with their mother and their aunt.

3 . The essence of the applicants' case is that, in considering the applications on behalf of the minors, the Minister applied the Policy Document on Non-EEA Family Reunification (hereinafter “the policy”), in an inflexible and irrational way, by failing to have any, or any adequate, regard to the exceptional circumstances of a humanitarian nature of this case; which, the applicants submit, would have justified a departure from the strict requirements of the policy, in favour of the grant of visas to the minor applicants. In essence, they rely in this regard on the existence of exceptional humanitarian circumstances in the case.

4 . To properly understand the applicants' case and the rationale for the respondent's decision, it is necessary to set out the background to this matter in some detail.

Background.

5 . The second applicant, who is the aunt of the minor applicants, was born in Somalia on 28 ^th November, 1979. She came to Ireland on 13 ^th October, 2004. She applied for asylum and was declared a refugee by the respondent on 26 ^th July, 2005. On 13 ^th December, 2012, she became a naturalised Irish citizen. Having separated from her husband, the second applicant made a family reunification application in respect of her daughter, who had been born on 5 ^th November, 2000, which application was granted in 2009.

6 . The second applicant's current partner is a UK citizen. He resides with the second applicant in this country. They have seven children born between 2008 and 2015, all of whom are Irish citizens.

7 . The second applicant's father, was killed in 2005. The second applicant applied for refugee family reunification in respect of her mother in December 2010. That was granted in 2014. The second applicant's mother came to Ireland on 25 ^th July, 2014. She lives with the second applicant.

8 . The second applicant had four sisters and three brothers, five of whom were killed in a bomb attack on the family home in 2009. One of her other siblings died in 2013. The second applicant's younger sister, is the first applicant herein. She is the second applicant's only remaining sibling. The first applicant was born in Somalia on 20 ^th August, 1997.

9 . It is stated that the second applicant did not know the whereabouts of her sister for many years after the bomb attack on the family home. She tried several times to find the first applicant using the Red Cross tracing service, but was unsuccessful in so doing. Eventually, the second applicant made contact with the first applicant in July 2015, when an old friend got in touch with the second applicant and told her that the first applicant was living in Addis Ababa, Ethiopia. She gave the second applicant a contact number for the first applicant. The first applicant informed the second applicant that after the bomb attack on the family home, she had spent a number of years moving around Somalia, running from the Al Shabab militia. She stated that she had gone to Addis Ababa, Ethiopia in or about May 2011. She had moved back to Somalia for some time, before returning again to Addis Ababa in April 2015.

10 . The first applicant was married in Mogadishu on 10 ^th April, 2011. She and her husband had four children, being the third to sixth named applicants. The first applicant stated that in or about 2014, her husband and her son, Ibdirahim, were taken hostage after they were attacked by the Al Shabab militia. The first applicant was reunited with her husband and son in or around February 2016. She became pregnant with her youngest child at that time. She stated that she had to again flee from where they had been staying in March 2016; at which time, the first applicant lost contact with her husband and has not heard from him since.

11 . In 2016, the second applicant applied for family reunification in respect of the first applicant under s.18(4) of the Refugee Act 1996. That application was not granted until February 2021, due to an initial 2017 refusal and subsequent judicial review proceedings.

12 . Subsequent to settlement of the judicial review proceedings, the solicitors acting for the first applicant wrote to the respondent on 23 ^rd December, 2020, in which they referred to the wish of the first and second applicants to have the first applicant's four children, being the third to sixth named applicants, included in the application for visas. They queried whether the respondent's Family Reunification Unit (hereinafter “FRU”) would deal with the application, or whether the visa application should be made through the Embassy in Addis Ababa. On 18 ^th January, 2021, the respondent indicated that the FRU would not deal with the application in relation to the children. The family reunification application in respect of the first applicant, was ultimately granted in February 2021.

13 . The first applicant's solicitors submitted an application for the first applicant's visa to travel to Ireland on 6 ^th April, 2021, notifying the respondent in the letter, that she would be applying for visas for her four children to travel with her. On 28 ^th July, 2021, the first applicant's solicitor submitted D visa applications in relation to the first applicant's four children. It was pointed out that the first applicant's own visa was valid for travel to Ireland between 11 ^th June, 2021 and 10 ^th December, 2021. The respondent was requested to determine the visa applications in respect of the first applicant's children, in the shortest possible timeframe. The respondent was informed that the children would have no other family support in Ethiopia without their mother, when she came to Ireland. It was pointed out that the first applicant had at all times been open about her intention to apply for visas for her children to travel with her.

14 . By emails dated 24 ^th September, 2021, the D visa applications in respect of the four children were refused. The emails contained shorthand visa refusal reasons. They were not accompanied by a detailed consideration document. Lack of finances and lack of proof of routine contact/family relationship were referred to, amongst other reasons, such as issues with the spelling of names on documents.

15 . The first applicant travelled to Ireland on 16 ^th October, 2021, having returned to Somalia from Ethiopia one week previously, for the purpose of leaving her children in the care of her sister-in-law in Mogadishu. The children were to reside with her sister-in-law on a temporary basis, as she already had five children of her own.

16 . Solicitors acting for the first applicant submitted an appeal in respect of the four visa refusals on 23 ^rd November, 2021, describing the living arrangement for the children in Mogadishu as being a “last resort”, resulting from the first instant visa refusals. The appeal letter dealt with the first instance refusal reasons in turn. It was submitted that the finding that an exceptional set of circumstances did not exist, was at complete odds with the reality of the case. Legal submissions were made in support of the applicants' appeal. Further documentation in support of the appeal was submitted on 21 ^st December, 2021, including documents in relation to financial assistance and contact between the second applicant and the first applicant's sister-in-law, who was caring for the children in Somalia. Further documentation, concerning identity documents and payslips, was submitted on 7 ^th February, 2022.

17 . The appeals against the refusal of the D visas in respect of the minor applicants, were refused in four separate letters dated 14 ^th April, 2022, accompanied by a single consideration document, which covered all four appeals. It is that decision which is challenged in the within proceedings.

Submissions on behalf of the Applicants.

18 . On behalf of the applicants, it was submitted by Mr. Power SC, that the decision of the respondent on appeal, was vitiated by a number of legal errors and was also irrational in the legal sense, in respect of a number of findings that had been made in it. It was submitted firstly, that the decision maker had been wrong to have excluded the first applicant (the mother) as a sponsor on the grounds that she was not eligible to act as a sponsor having regard to the terms of the policy document, and in particular having regard to the provisions of para. 16.4 thereof, which provided a number of categories of people who would be eligible to sponsor applications for family reunification, but only after they had been twelve months lawfully in the country.

19 . It was submitted that the Minister should always be free to exercise her discretion in whatever way she thought was most appropriate in the circumstances. The policy document could not be used as a means of setting out an inflexible policy, which had to be followed by the Minister and her staff in all cases. It was submitted that in this case, the decision maker should have been prepared to depart from the eligibility...