Li & Wang v Min for Justice
 IEHC 638
THE HIGH COURT
2014/529JR - Humphreys - High - 21/10/2015 - 2015 IEHC 638
Asylum, Immigration & Nationality – Illegal Immigrants (Trafficking) Act 2000 – The Immigration Act 1999 – S. 4 of the Immigration Act 2004 – Extension of visa – Imposition of conditions for grant of visa – Executive discretion – Leave to seek judicial review
1. Can the Minister for Justice and Equality lawfully impose on a visa applicant the condition that they apply for the visa from outside the State? That is the principal question posed in this application.
2. The applicants in this case are Chinese nationals who are married with an adult daughter. Their daughter married an Irish citizen in May 2011 and obtained Irish residency following that marriage.
3. In 2012 the applicants obtained a 90 day visitor's visa to come to Ireland to visit their daughter. They returned to China immediately prior to the expiry of that visa in July of that year.
4. The applicants more recently applied for a further 90 day visitor's visa, which was also granted. They arrived in Ireland on 20 th March, 2014. During this visit, however, they decided to endeavour to seek an extension of their visa to enable them to live in Ireland on a more permanent basis with their daughter. The applicants' solicitors, Gallagher and Co., who had dealt with the daughter's application for residency in 2011, wrote a letter to the Department of Justice and Equality dated 6 th June, 2014, setting out "an application on behalf of both Qingzhou Li and Huimin Wang for leave to remain in the Slate as dependents of Mr. Thomas McNally and Mrs. Michelle Yao McNally" (being their son in law and daughter respectively).
5. The letter stated that Mr. and Mrs. McNally had offered them a place to reside in Ireland "of course, subject to being granted leave to remain in the State". The letter noted that the applicants' daughter would be applying for a certificate of naturalisation, and I am informed by counsel that this was in fact granted subsequent to the issue of the proceedings.
6. The letter did not, however, set out any case that the applicants were, or would be, unable to pursue an application for long-term residence from their home in China, nor did it allege that refusal of the application would constitute a serious infringement of the constitutional or Convention rights of the applicants by reason of any special circumstances of dependency or inability to continue to live in China.
7. Furthermore, the letter did not purport to be an application under any particular statute, regulation or administrative scheme. The legal basis for the application was not specified in the letter.
8. No basis for alleging any dependency or inability to live in China has been established or even alleged, nor has any basis for contending that the applicants could not have applied for long-term residency from China.
9. The Minister has adopted a policy statement, published on the web, which in general requires non-EEA long term family reunification applications by parents to join children in the State to be pursued from the applicant's home country. The allegation in the pleadings that the policy was "unpublished" was sensibly not pursued at the hearing.
10. The Minister's reply is of some importance in the case. It took the form of a letter from the Department to Gallagher and Co. Solicitors dated 25 th June, 2014, enclosing "decision letters" addressed to the applicants. The covering letter stated:-
"As they are Visa required nationals they must apply for the appropriate Visa from outside the State."
Each decision letter stated that:-
"Following consideration of the individual circumstances of this case including all of the matters known to us and which were adverted (sic) in your application your position does not warrant an extension of visitor permission".
It went on to say that:-
"In the light of the above, the application for an extension of visitor permission in respect of you is refused. Applications for permission to remain in the State as retirees with independent means or as dependents under the Non-EEA Family Reunification Policy Document as detailed on our website, must be made from country of origin for individuals who are Visa required to enter the State."
11. The statement in the letter that all circumstances were considered was supported by affidavit evidence, which I accept, filed on behalf of the Minister.
12. Following receipt of this letter by applicants' solicitors on 26 th June, 2014, their solicitors delivered a copy of the letter by hand to the applicants' address on the same day. The applicants could not read or speak English and, therefore, did not read the refusal correspondence at that time. Their daughter and son in law were away on holidays between 20 th June and 15 th July, 2014, so the applicants did not become aware of the refusal until the latter date. (The initial affidavit filed on behalf of the Applicant mis-stated the date of the holiday as commencing on 28 th June 2014 but I accept the correct date is that mentioned in a later affidavit, namely the 20 th).
13. Their daughter became aware of the refusal slightly earlier by a matter of one or two days prior to 15 th July by reason of an email sent and from the applicants' solicitors which she picked up while abroad. Shortly after 15 th July, contact was made with both solicitors who then sought the advice of counsel. Counsel sought further instructions which were then provided.
14. Papers were then sent to counsel for the purpose of drafting pleadings, which were returned by counsel on 11 th August, 2014. I was informed by Ms. Rosario Boyle S.C. for the applicants that the long vacation appears to have hindered the progress of the matter and the notice of motion that was ultimately issued is dated 2 nd September, 2014, and has a High Court stamp which appears to be dated 5 th September, 2014 in the version that was handed to me.
15. It is accepted that the applicants' solicitors were generally aware of the right of internal appeal of a visa decision and that no such appeal was lodged. It is also noteworthy that the decision letters did not make reference to the right of internal appeal.
16. It is important that I record that at no time following the refusal letters and prior to the institution of the proceedings did the applicants or anyone on their behalf write a pre-action letter to the Minister complaining about the refusal decision or requesting further or any reasons for it.
17. It is also important to record that despite what I find to be the clear impression created by the applicants' instructions to their solicitors as conveyed, in good faith, by their solicitors to the Minister, the Applicants did not leave the State as they were obliged to do upon or prior to the expiry of their visitors' visa, and were present in the State without permission on the date of institution of the proceedings and at all material times thereafter.
18. I also conclude, having particular regard to the evidence in this respect adduced by the respondent concerning the reasons for the requirement that applicants for longer term permission must make that application from their home country, that the act of overstaying is not a breach of the law that is without consequence for the rights and interests of others. The visa system depends on substantial compliance by those who benefit from it. Any act of overstaying increases the pressure on the respondent to inquire more rigorously into visitors' visa applications which can only have the effect of creating delay or inconvenience for law-abiding applicants.
19. There are two initial procedural issues that warrant mention.
20. Firstly, the applicants have referred in their Statement of Grounds to the Minister for Justice and Equality by her incorrect, pre-2011 title. As it is more appropriate that the Minister's correct title should be used, I would be prepared to permit amendment of the title of the proceedings.
21. Secondly, although the Court has ordered that present hearing be conducted on a telescoped (or what is referred to in England as a "rolled-up") basis (where the leave application and the substantive judicial review are being heard together), the respondent has not filed a Statement of Opposition but delivered a document entitled " intended statement of opposition". As a matter of logic there can be no meaningful "intention" to deliver a statement of opposition because no such opportunity will arise prior to the determination of the proceedings. Ms. Sinead McGrath B.L. for the Minister informed me that the practice was that if leave was granted, a Statement of Opposition would be filed at that point. However in view of the fact that the grant of leave would co-incide with the end...
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