Maida Alamin and Yunusi Bwana v The Minister for Justice

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 10 December 2024
• Neutral Citation: [2024] IEHC 702
• Docket Number: Record No. 2021 753 JR

Between

Maida Alamin and Yunusi Bwana

Applicants

and

The Minister for Justice

Respondent

[2024] IEHC 702

Record No. 2021 753 JR

THE HIGH COURT

JUDICIAL REVIEW

Visa application – Assessment of rights – Article 8 of the European Convention on Human Rights – Applicants seeking a Long Stay Join Family (Irish Naturalised Spouse) Visa – Whether the respondent’s refusal of the visa was unlawful

Facts: The second applicant, Mr Bwana, a Kenyan national, claimed to have contracted marriage in 2013 with the first applicant, Ms Alamin, a naturalised Irish citizen of Somalian origin, resident in the State since 1996, whom he met while she was in Kenya in 2012. The respondent, the Minister for Justice, refused the second applicant a Long Stay Join Family (Irish Naturalised Spouse) Visa. The matter came before the High Court (Phelan J) for determination of issues not already decided following a previous High Court hearing which took place on 13th and 24th October, 2022, having been remitted from the Court of Appeal. The grounds which remained for determination concerned the approach taken to the assessment of the rights of a married family under the Constitution pursuant to Article 41 and the European Convention on Human Rights pursuant to Article 8 which it was claimed by the applicants were not considered properly, resulting in a decision which they claimed was unlawful as a disproportionate interference with those rights. It was contended that the Minister’s refusal was unlawful by reason of the approach taken to the first applicant’s disability and the application of financial eligibility criteria.

Held by Phelan J that the Minister’s conclusion that there was insufficient documentation submitted in support of the application was an unimpeachable finding given the decision of the Court of Appeal and the material before the Minister. Phelan J concluded that there was a proper assessment of rights protected under Article 41 of the Constitution and Article 8 of the Convention in the decision-making process. Phelan J concluded that it was not open, on the facts of the case, to the applicants to challenge the Minister’s conclusion that insufficient evidence of the stated relationship being in existence prior to marriage had been provided. Phelan J held that it was an entirely rational conclusion which flowed from the material before the Minister. In circumstances where there was no challenge to the Policy Document on Non-EEA Family Reunification, Phelan J held that the financial criteria set down in the Policy Document were not met and where there was no challenge to the finding that exceptional circumstances which would warrant a departure from the Policy had not been demonstrated, any complaint in relation to the Minister’s consideration of financial matters in terms of the risk of a burden on public resources required strong justification. Phelan J found that no basis for finding that the Minister discriminated against the applicants because of the first applicant’s disability or that the first applicant was treated less favourably as regards her right to family reunification because of her disability had been established. Phelan J noted that the application was considered in the round and considerations weighing against the grant of a visa were found by the Minister, following a rational consideration of the application in a reasoned and intelligible manner, to outweigh the applicants’ interest in the grant of a visa; specifically, the application was not refused because the first applicant had a disability.

Phelan J dismissed the proceedings.

Proceedings dismissed.

JUDGMENT of Ms. Justice Siobhán Phelan, delivered the 10 ^th day of December, 2024.

INTRODUCTION

1 . These proceedings arise from a refusal of a Long Stay Join Family (Irish Naturalised Spouse) Visa (hereinafter “the Visa”) to a male Kenyan national who claims to have contracted marriage in 2013 with a female naturalised Irish citizen of Somalian origin, resident in the State since 1996, whom he met while she was on holidays in Kenya in 2012. This matter comes before me for determination of issues not already decided following a previous High Court hearing which took place on 13 ^th and 24 ^th October, 2022, having been remitted from the Court of Appeal.

2 . In consequence of the decision of the Court of Appeal, it now stands finally determined that the Minister did not err in disregarding untranslated communications and messages between unidentified numbers and persons when concluding that there was insufficient evidence of on-going routine communication between the Applicants both prior to and since the marriage.

3 . Those grounds which remain for determination, and which now come before me principally concern the approach taken to the assessment of the rights of a married family under the Constitution pursuant to Article 41 and the European Convention on Human Rights (hereinafter “the Convention”) pursuant to Article 8 which it was claimed by the Applicants were not considered properly, resulting in a decision which they claim was unlawful as a disproportionate interference with those rights. In addition, it is contended that the Minister's refusal was unlawful by reason of the approach taken to the first Applicant's disability and the application of financial eligibility criteria.

FACTUAL BACKGROUND

4 . The first Applicant was born in Somalia on the 21 ^st July, 1971. She came to Ireland in November, 1996, and applied for asylum. She was subsequently granted permission to remain as the parent of an Irish citizen child in 1999. She is now a dual Irish and Somali citizen, having become a naturalised Irish citizen on the 15 ^th October, 2012. At the date of the application, the subject of the within proceedings, the first Applicant had two adult children and a minor child aged 16 who lived with her. Her three children have two different fathers. The father of the then minor child lived in Ireland and was said to be actively involved with the child's upbringing. All three children are Irish citizens and all three have now attained their majority.

5 . The second Applicant is a Kenyan citizen, born in Kenya on the 14 ^th July, 1980. He lives in Mombasa in Kenya. It is claimed that the Applicants met in Kenya while the first Applicant was holidaying there in July, 2012. After the first Applicant returned to Ireland, they stayed in contact, and a romantic relationship developed. They decided to get married and claim to have married on the 6 ^th August, 2013, in Kenya. The first Applicant has travelled to Kenya almost every summer since 2013 apart from 2017 when she says she did not travel due to security concerns in Kenya and 2020 due to Covid restrictions.

6 . The first Applicant is not in employment as it is maintained that she suffers from several chronic health conditions. She has been further assessed as unfit for employment on these health grounds and was in receipt of a disability allowance payment when the Visa application was considered. Previously, she was in receipt of a one parent family payment from 1999. This payment was disallowed due to her marriage to the second Applicant in August 2013. She made a claim review for this payment in September, 2013 and 2014, in which she did not declare this marriage. In January, 2015, the Department of Social Protection determined that she would have to pay back the one parent family social welfare payments received since her marriage. She currently does this at a rate of thirty euros per week.

VISA APPLICATIONS

7 . The Applicants have submitted three visa applications for the purposes of having the second Applicant join the first Applicant in Ireland, and all three have been refused.

8 . The Applicants made the first two applications themselves and did not retain the documents. Their solicitors, Daly Lynch Crowe and Morris Solicitors, made a Freedom of Information request to the Minister for all documents relating to the Applicants' visa applications, and, following an internal review of the request by the Minister, received a response dated the 19 ^th April, 2019, enclosing the available documents in relation to all three visa applications (with some of the documents relating to the previous applications having been no longer retained by the Minister).

9 . The first visa application was refused at first instance on the 27 ^th November, 2013, and on appeal on the 8 ^th January, 2014. It appears from records exhibited that this application, VA13833092, was refused at first instance on the basis that the first Applicant, as sponsor, did not satisfy the various evidential burdens relating to the genuineness of the family relationship and satisfy adequate documentary proofs, notably in regard to financial criteria as set out in Policy Document on Non-EEA Family Reunification and also in regards to inconsistencies within the information supplied. Further, available records suggest a concern that if granted, this may result in cost to public resources and funds of the State. From the records before me, the application appears to have been refused on appeal for reasons largely emulating the justifications provided in the first instance refusal decision.

10 . The second visa application, VA17625612, was also refused at first instance on the 8 ^th June, 2015, and on appeal on the 3 ^rd September, 2015, both decisions refused on a similar basis to the first application.

11 . As regards the third visa application, which resulted in the appeal refusal being challenged in these proceedings, on the 18 ^th April, 2019, the Applicants' solicitors applied on behalf of the second Applicant to the Minister for a visa to join the first Applicant in Ireland. This visa application was submitted through the Embassy of Ireland in Nairobi, Kenya. A substantial volume of accompanying documentation was enclosed with this third application and the application was treated by the...