I.A.H. v Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 08 March 2023
• Neutral Citation: [2023] IEHC 117
• Court: High Court
• Docket Number: [Record No.: 2021/508JR]

Between:

I.A.H.

Applicant

and

The Minister for Justice, Ireland and The Attorney General

Respondents

[2023] IEHC 117

[Record No.: 2021/508JR]

THE HIGH COURT

JUDICIAL REVIEW

Join Family visa – Subsidiary protection – Family life – Applicant challenging a decision affirming on appeal a refusal of a Join Family visa to her husband – Whether there had been a failure to properly consider the fact that the applicant had subsidiary protection status in weighing the respective rights and interests of the applicant and the State

Facts: The applicant, an Iraqi national, resided in the State since 2011 and in 2013 she made an application for subsidiary protection, in which she claimed to be the widow of a named person who had been murdered by her family. She was granted subsidiary protection in January, 2015 for a period of 3 years and that permission was extended for a further three years in February, 2018. The applicant married an Iraqi national by proxy in December, 2018. The applicant’s nephew stood in the applicant’s stead to formalise the marriage. The applicant and her husband were both in their 40s at the date of their marriage. An application for a long stay (Join Family) visa was made on behalf of the applicant’s husband in February, 2019. By letter dated the 4th of November, 2019, the applicant’s husband was advised that his visa application had been refused. By a solicitor’s letter dated 23rd of December, 2019, an appeal was submitted against the visa refusal. By correspondence dated the 4th of March, 2021, the applicant was advised that the first respondent, the Minister for Justice, had refused her husband’s appeal against the refusal of a visa permitting him to join her in the State. Leave to proceed by way of judicial review to challenge the refusal was granted by the High Court (Burns J) on the 21st of June, 2021. Between the issue of the proceedings and the listing of the case for hearing, the applicant was granted a certificate of naturalisation which was issued on the 5th of December, 2022. In the statement of grounds filed in June, 2021, the applicant sought an order of certiorari of the first respondent’s decision to refuse the appeal against the refusal of the visa application made on the 4th of March, 2021, on the grounds that there had been a failure to adequately consider that the applicant had been granted subsidiary protection in considering whether family life could be established elsewhere in breach of the applicant’s rights under Articles 40.3.1 and 41 of the Constitution and Article 8 of the European Convention on Human Rights. Other grounds of challenge pleaded and in respect of which leave was granted, notably in relation to the Policy on non-EEA Family Reunification, were not pursued at the hearing before Phelan J.

Held by Phelan J that the first respondent failed to have proper regard to the obligation on the State in an application for spousal reunification where the sponsor had been granted subsidiary protection in this case. Phelan J held that the first respondent did not address in the consideration document that an incident of family life is cohabitation nor the fact that there was any impediment to the applicant residing together with her husband in their shared country of origin, or engage in any weighing of those considerations. Phelan J held that a serious concern arose that the first respondent may have concluded that the applicant had returned to Iraq previously, albeit without raising that issue with her during the application process. Phelan J held that if, as appeared likely, the first respondent concluded that the applicant was in a position to return to Iraq for the purpose of exercising a right to family life because of a belief that the applicant had previously returned, then that conclusion was not properly arrived at and did not provide a sound basis for the ultimate refusal of the visa in the case.

Phelan J proposed making an order quashing the decision for the first respondent to refuse the appeal against the refusal of the visa application in respect of the applicant’s husband made on the 4th of March, 2021.

Application granted.

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 8th day of March, 2023.

INTRODUCTION

1 . The Applicant is an Iraqi national who enjoys subsidiary protection status in Ireland. In these proceedings she challenges a decision made on the 4 ^th of March, 2021 to affirm on appeal a refusal of a Join Family visa to her husband, who is also a national of Iraq.

2 . The visa in question is granted by the First Respondent pursuant to her executive powers in relation to the entry of third country nationals into the State. In every application before arriving at a decision, the First Respondent in exercise of these powers must balance State policy concerns against the rights of the individual.

3 . The issue at the heart of this case, is whether there has been a failure to properly consider the fact that the Applicant has subsidiary protection status, in consequence of which she cannot safely return to Iraq to establish family life, which embraces a right to co-habit, with her husband in their country of nationality in weighing the respective rights and interests of the Applicant and the State.

BACKGROUND

4 . The Applicant has resided in the State since 2011 and in 2013 she made an application for subsidiary protection, in which she claimed to be the widow of a named person who had been murdered by her family. She was granted subsidiary protection in January, 2015 for a period of 3 years and this permission was extended for a further three years in February, 2018.

5 . The Applicant married an Iraqi national by proxy in December, 2018. The Applicant's nephew stood in the Applicant's stead to formalise the marriage. The Applicant and her husband were both in their 40s at the date of their marriage.

6 . An application for a long stay (Join Family) visa was made on behalf of the Applicant's husband in February, 2019. The application was supported by documentation which included:

1- Visa Application

2- Applicant's letter and passport photos size.

3- Copy of applicant's passport.

4- Certificate of Iraqi Nationality translation (applicant)

5- Iraqi ID translation translation (applicant).

6- Marriage contract translation (applicant).

7- Subsidiary protection letter (wife).

8- Travel document+ID+Iranian visa (wife).

9- Disability assessment letter. (wife).

10- Accommodation contract in Monaghan (wife).

11 Bank Statement (wife).

12 WhatsApp conversion (applicant and wife).

13 wedding's photos (applicant and wife).

7 . In the body of the letters accompanying the application, the Applicant and her husband described meeting in Mashed in Iran. There was, however, a discrepancy in the dates of first meeting (subsequently corrected as a typographical error) as between the Applicant's letter and the narrative provided by her husband. On the translated marriage certificate which accompanied the application, the Applicant is described as a “ virgin”, a notably strange description which is not easily reconcilable with her claim to have been previously widowed. In support of the application, emphasis was placed on the Applicant's age and the couple's wish to start a family, as well as the threat to the Applicant's life were she to return to Iraq in the correspondence. The Applicant explained in this correspondence that she had been in receipt of disability benefit since 2019 and had recently been allocated two bed accommodation in the rural town where she lives.

8 . In a later letter from the Applicant's solicitor in support of the application, emphasis was again placed on the fact that the Applicant was a person who had been granted subsidiary protection status in the State. Reference was made to the decision of the European Court of Human Rights in Tanda-Muzinga v. France App. No. 2260/10 (ECHR, 10 July, 2014) which recognised the heightened vulnerability of protection applicants who seek family reunification.

9 . By letter dated the 4 ^th of November, 2019, the Applicant's husband was advised that his visa application had been refused. The reasons given for the refusal included:

• • the sponsor's finances were insufficient and she did not meet the financial criteria as set out in the Policy Document on Non-EEA Family Reunification;

• • insufficient documentation or evidence had been submitted of relationship history to establish genuineness of the marriage, ongoing communication, face to face meetings, sponsor's accommodation and sponsor's bank statements for the required period of six months;

• • inconsistencies in the documentation with specific reference to a different name of the sponsor on the marriage certificate submitted and the marital status of the sponsor at the time of marriage;

• • risk that the grant of a visa might result in a cost to public funds or public resources.

10 . By a solicitor's letter dated 23 ^rd of December, 2019, an appeal was submitted against the visa refusal. At that time, as explained in the appeal letter, the Applicant was dependent on social welfare and was in receipt of a Disability Benefit. Her husband was a heavy machinery operator and their stated expectation was that he would have no problem securing employment in Ireland. It was repeated that the marriage was a proxy marriage contracted in December, 2018 on foot of a power of attorney given to the Applicant's nephew. Thereafter, the couple arranged to meet in Iran in January, 2019 where they spent four weeks together before the Applicant returned to Ireland and her new husband to Iraq.

11 . It was claimed on the Applicant's behalf by her solicitor that due to her subsidiary protection status the Applicant is unable to travel to meet her husband in Iraq, and he had been unable to leave Iraq because his passport had been submitted to the Irish authorities in support of his...