N.I. v Minister for Justice
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 23 June 2023 |
| Neutral Citation | [2023] IEHC 339 |
| Court | High Court |
| Docket Number | Record No. 2022/442 JR |
[2023] IEHC 339
Record No. 2022/442 JR
THE HIGH COURT
JUDGMENT of Mr. Justice Barr delivered on the 23 rd day of June, 2023.
. The applicant is a Somali citizen. She is the niece of her next friend, Ms. Nura Ali Hassan (hereafter “the sponsor”, as she is referred to as such in the impugned decision), who is a dual citizen of both Somalia and Ireland.
. The applicant is an orphan, her mother having died on 3 rd July, 2014 and her father having died on 14 th August, 2015.
. In this application, the applicant seeks an order of certiorari quashing the decision of the Minister to refuse the applicant's visa appeal, taken on 28 th February, 2022.
. The applicant has argued that in refusing her visa appeal, the Minister acted unreasonably in concluding that there were no exceptional circumstances in the applicant's case which warranted departure from the financial thresholds set in the Policy Document on Non-EEA Family Reunification (hereinafter “the policy”). Further, the applicant argued that the Minister acted in breach of fair procedures and failed to have due regard to the fact that the applicant is an orphan and an unaccompanied minor. Finally, the applicant argued that the Minister, in refusing the appeal, failed to recognise the applicant's right to family unity and the rights of the child as found in Articles 40.3 and/or 40.1 of the Constitution and Article 8 of the ECHR.
. To properly understand the applicant's case and the rationale for the respondent's decision, it is necessary to set out the background to this matter in some detail.
. The applicant was born in late 2007, in Awdheegle Afgoye, Somalia. The applicant's mother, Ms. Saado Ali Hassan, died on 3 rd July, 2014, as a result of a car explosion in Mogadishu, Somalia. The applicant's father, Mr. Ibrahin Isse, died on 14 th August, 2013, as a result of an illness. When the applicant was orphaned, her paternal grandaunt, Ms. Halimo Hirsi Dahir (hereafter “Ms. Dahir”), was granted guardianship over the applicant.
. The sponsor was born on 10 th June, 1983. She is the sister of the applicant's late mother. She entered the State in 2005. She was granted refugee status in 2006 and, subsequently, became a naturalised Irish citizen in 2009. She has been resident in the State since 2005. On or about 24 th May, 2012, she was granted family reunification with respect to her two brothers and one sister, who subsequently entered the State.
. At the time when Ms. Dahir was granted guardianship over the applicant, the sponsor had not had contact with her other two sisters, Ms. Jijo Ali Hassan (hereafter “Jijo”) and Ms. Diidi Ali Hassan (hereafter “Diidi”), in 12 years.
. In 2015, Ms. Dahir and the applicant met Jijo in Mogadishu, Somalia. Ms. Dahir informed the sponsor of this meeting and attempted to put the sponsor in contact with her sisters.
. On 5 th October, 2015, Ms. Dahir applied to Hamarweine District Court to transfer custody and guardianship of the applicant to the sponsor, as Ms. Dahir was an elderly woman who was not capable of caring for the applicant. The sponsor was granted custody and guardianship of the applicant. A certificate verifying the transfer of guardianship was exhibited to the affidavit sworn by the sponsor, it is signed by two witnesses and by a Judge of the District Court in Hamarweine, Somalia.
. The applicant remained with Ms. Dahir until the sponsor located her sisters, who were then in Ethiopia, having fled the war in Somalia. Sometime in 2016, Ms. Dahir's friends brought the applicant to Ethiopia, to reside with her aunts, Jijo and Diidi.
. The sponsor averred that during the time the applicant was residing with her aunts in Ethiopia, she would frequently contact her through WhatsApp, via her aunts' mobile phones (as the applicant did not have a mobile phone of her own). She exhibited call logs to that effect in her affidavit. She also outlined that she was financially supporting the applicant and her sisters, and exhibited cash payment slips, which showed her having sent money to Jijo.
. In December 2016, the sponsor applied for family reunification of Jijo, Diidi and the applicant. By letter dated 5 th January, 2017, the sponsor was informed that the application on behalf of the applicant could not proceed, as nieces were not eligible for family reunification. The applications with respect to Jijo and Diidi were approved on 26 th April, 2021, following a challenge by way of judicial review (bearing record number 2018/129 JR).
. On 11 th August, 2021, the applicant applied for a long stay visa to join the sponsor and travel to Ireland with Jijo and Diidi, both of whom had visas to enter the State. On 2 nd November, 2021, that application was refused by the Minister.
. Jijo and Diidi travelled to the State in November 2021. Their visas permitted their travel to the State between 18 th June, 2021 and 17 th December, 2021. The applicant began to reside with a neighbour in Ethiopia, Ms. Roda Said Ismail, on a temporary basis, pending the outcome of her visa appeal.
. The sponsor averred that she had been sending Ms. Ismail money to look after the applicant. The sponsor exhibited to her affidavit, evidence that she had sent a cash payment to Ms. Ismail. The sponsor also averred that she had been contacting the applicant through Ms. Ismail, and exhibited call logs with Ms. Ismail's phone number to that effect.
. By letter dated 22 nd December, 2021, the applicant submitted an appeal against the first instance refusal. That appeal was refused by letter dated 28 th February, 2022. It is this appeal decision which is challenged in the within proceedings.
. The Minister's decision to refuse the applicant's visa appeal outlined various reasons why the appeal was refused. It is necessary to go through these findings in some detail, as they are pertinent to the applicant's case.
. First, the Minister outlined that the finances shown by the sponsor in support of the applicant's application, were insufficient; such that the Minister was concerned that the granting of a visa to the applicant would result in financial cost to the State.
. The Minister stated that the applicant had failed to provide evidence of any familial link between the applicant and the sponsor. Further, the Minister stated that the applicant had not demonstrated that she is, or ever had been, socially or financially dependent on the sponsor.
. The Minister outlined that the applicant had failed to provide sufficient documentation as to the following: the extent to which family life exits between the applicant and the sponsor; whether the sponsor and the applicant had ever actually met; the social or financial dependence of the applicant on the sponsor; the extent of ongoing routine contact between the applicant and the sponsor.
. The Minister also took issue with the quality of documentation provided by the applicant. She held that the certificate of guardianship did not state that the sponsor had permission to remove the applicant from the country of origin. The Minister also took issue with a discrepancy in the spelling of the applicant's surname on that document.
. Finally, the Minister pointed to an inconsistency in the applicant's narrative, whereby it appeared that her birth certificate was issued on 17 th March, 2021 at the request of a parent, at which time the applicant's parents were both deceased. The Minister also noted that the applicant's birth certificate and her parents' death certificates were not attested.
. The Minister noted that the applicant and the sponsor had not provided details of any other immediate family members based in Ireland or Somalia, and no documentation as to a clear familial link between the applicant and the sponsor.
. The Minister was not satisfied of the veracity of the cash payment slips the applicant had submitted as proof that the sponsor was supporting her for several years, by sending money to both Jijo and Ms. Ismail; as there did not appear to be corresponding transactions on the sponsor's bank statements, which were also submitted.
. The Minister was not satisfied that the sponsor was in a position to support the applicant financially, or to house the applicant at her current address.
. The Minister found that insufficient documentary evidence had been provided that any legal guardianship/adoption had taken place, such as would be recognised in this State. The Minister noted that this was the necessary threshold, given that Somalia was not a party to the Hague Convention and there was no bilateral treaty between Ireland and Somalia recognising adoptions. Therefore, the Minister considered that the adoption must be one that was capable of recognition under Irish law.
. In that regard, the Minister found that there was no evidence that the sponsor was properly vetted by the Irish Authorities to adopt the applicant. The Minister stated that decisions involving minors must be in line with the child's best interests and well-being, the Minister found that the inconsistencies and errors in the question of guardianship/adoption were sufficient to warrant the refusal of the appeal.
. The Minister was not satisfied that the applicant had demonstrated close personal ties with the sponsor, as this would involve the provision of ongoing and frequent care to the child.
. The Minister was not satisfied that the applicant had shown sufficient dependence, either socially or financially, on the sponsor such to warrant the granting of a visa. The Minister stated that there was insufficient evidence to show that the applicant and the sponsor were actually aunt and niece. Finally,...
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