N.Z. and Others v The Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 03 October 2023
• Neutral Citation: [2023] IEHC 545
• Court: High Court
• Docket Number: [Record No. 2022/589JR]

Between:

N.Z., S.M.R.

and

M.U.S.R (A Minor Suing through His Father and Next Friend, S.M.R.)

Applicants

and

The Minister for Justice

Respondent

[2023] IEHC 545

[Record No. 2022/589JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Join family visa – Extension of time – Applicants seeking judicial review – Whether the respondent failed to consider the rights of the child under Articles 40 to 42A of the Constitution

Facts: The High Court (Meenan J), by ex parte order made on the 3rd of October, 2022, gave the applicants leave to apply for reliefs by way of judicial review as set forth in the Statement of Grounds filed on the 11th of July, 2022 for an order of certiorari quashing the decision of the respondent, the Minister for Justice, dated the 8th of April, 2022 refusing a visa to the first and third applicants and an extension of time pursuant to Order 84, Rule 21 of the Rules of the Superior Courts should same be required. The grounds upon which leave was granted were as follows (i) reference to the marriage of the first and second applicants being a potentially (or actual) polygamous marriage was unreasonable; (ii) in circumstances where the financial thresholds set out in the Minister’s Policy Document of Family reunification were met it was no longer permissible for the Minister to consider whether or not there had been sufficient evidence of financial and social support; (iii) the refusal on the basis of a want of evidence of their relationship prior to marriage despite the fact that the applicants informed the respondent that theirs was an arranged marriage and, therefore, there was no pre-marriage relationship was irrational when arranged marriages are recognisable; (iv) a refusal on the basis of a want of evidence of their relationship subsequent to marriage was irrational on the evidence; (v) a refusal on the basis that the applicants’ marital relationship could be continued without the need to reside together owing to the fact that it commenced while they both lived in different countries was irrational as was the conclusion regarding the ongoing relationship between the second and third applicants; and (vi) the decision was flawed because of a failure to carry out a full and proper consideration and assessment of the applicants’ rights as a family unit and there was insufficient engagement with the constitutional protections afforded to the family, as a unit, and the rights based on their marriage to another of the first and second applicants. On the 25th of April 2023 an application to amend the proceedings was moved on behalf of the applicants who sought leave to challenge the decision to refuse the visa on the basis of a failure to consider the rights of the child protected under Articles 40 to 42A of the Constitution and a failure to consider the prospective rights of the third applicant as an Irish citizen. Phelan J made an order giving leave to deliver an amended Statement of Grounds.

Held by Phelan J that, having regard to decisions in cases such as B.W. v. Refugee Appeals Tribunal (No. 1) [2015] IEHC 725 and J.K. v. Minister for Justice and Equality [2011] IEHC 473, it would not be appropriate to refuse relief in the case on grounds of delay alone. Phelan J found no infirmity in the approach taken to the validity of the marriage which in turn informed the approach of the respondent to her consideration of the application in terms of the particular family relationship in question and the facts and circumstances of the case and her conclusions on the evidence. Phelan J held that as the third applicant had rights qua child including a core constitutional right to the care and company of both parents pursuant to Articles 40 to 42A of the Constitution, but in the case the balancing exercise conducted was carried out without reference to the constitutional rights of the child either under Article 40.3 or Article 42A, the balancing exercise conducted was not based on a proper acknowledgement of or reference to or apparent weighing of the constitutional rights of the child. In Phelan J’s view that failure was fatal to the sustainability of the decision to refuse a join family visa in the case.

Phelan J made an order extending time for the bringing of the proceedings up to and including the 25th of July, 2022. Phelan J also made an order quashing the decision recorded on the 8th of April, 2022.

Application granted.

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 3 ^rd day of October, 2023

INTRODUCTION

1 . These proceedings comprise a challenge to a refusal of a join family visa application. At the date of the impugned decision the Third Named Applicant had what were described as “ prospective rights” as a future Irish citizen being the son of the Second Applicant who is an Irish citizen, born abroad. While the visa refusal is challenged on multiple grounds, a central question arising on the case as urged on me is whether and the extent to which the constitutional rights of a child born abroad of an Irish citizen exercising rights of residence in the State require to be weighed in a decision on a visa application on behalf of the child and his mother to join his Irish citizen father in the State.

BACKGROUND

2 . The Applicants are each Pakistani born nationals. The Second Named Applicant married an Irish citizen in or about 2004. He has resided in the State since 2005 and is a naturalised Irish citizen. There are two Irish citizen children of this marriage born in 2006 and 2007 respectively. The Second Named Applicant claims that this marriage was dissolved in or about 2011 in accordance with Pakistani law. An Order was made by the District Court pursuant to s.6A of Guardianship of Infants Acts 1964 to 1997 appointing the Second Named Applicant as guardian of the said children in 2016. The Second Named Applicant was naturalised as an Irish citizen on the 21 ^st of April, 2017.

3 . The First Named Applicant was born in Pakistan in 1989 and is a citizen of that country. She claims to be divorced in accordance with Pakistani law since September, 2017. There is a child of her first marriage, born in 2016, who is also a Pakistani citizen living in Pakistan. The Second Named Applicant married the First Named Applicant in December, 2017 in Pakistan. Following their marriage in Pakistan, the Second Named Applicant returned to the State. Subsequent to the Second Named Applicant's return to the State, the First Named Applicant sought a visa permitting her to join her husband in Ireland. This visa was refused in October, 2018 and an appeal was sought. A further refusal decision issued in June, 2019.

4 . The Third Named Applicant is the child of the First and Second Named Applicants, born in April, 2020 in Pakistan. Both the First and Second Named Applicants are registered as his parents on his Pakistani birth certificate. Following his birth, a second family reunification visa application was made. During the consideration process on foot of this second application, a request for further information was made on behalf of the Respondent. This application was refused but was subject to appeal on behalf of the Applicants.

5 . In January, 2022, the Visa Appeals Officer wrote to the First Applicant requesting additional information including, inter alia, a copy of the Second Named Applicant's P60/Employment Detail Summary for 2018, 2019 and 2020 and his final pay slip for 2021, a copy of the Second Named Applicant's marriage certificate to his Irish citizen wife and evidence of the Second Named Applicant's and his Irish citizen wife's domicile in Pakistan at the date of their divorce. An explanation was sought as to why the Divorce Certificate provided for the Second Named Applicant's previous marriage states the date of entry of divorce as a date in February, 2011 and the date of notice of divorce as a date in November, 2011 with the result that the entry date of divorce is prior to the date of notice of divorce.

6 . In March, 2022, the Applicants' solicitor wrote attaching a number of documents in response to this request for further information. It was explained that the divorce notice in Pakistan is when the divorce is actually registered as the process is informal hence the date of notice is after the Divorce. In relation to the documentary evidence sought in respect of the previous marriage to the Irish citizen it was indicated that the Second Named Applicant was not in a position to provide this evidence given the “ historic nature” of the information and the fact that he was habitually resident in Ireland.

7 . The second reunification application was refused, on appeal, on the 8 ^th of April, 2022. The decision to refuse this application is the decision impugned in these proceedings. A copy of the considerations document was included with the decision letter.

CONSIDERATIONS GROUNDING REFUSAL OF VISA

8 . In the considerations document which accompanied the refusal an issue was raised with regard to the Second Named Applicant's divorce from his Irish citizen wife whom he claimed to have married in July, 2004 in accordance with Muslim Hanfia law. A copy of a document executed by the Second Named Applicant with the title “ Divorce Deed” had been provided but the point was made that the document did not state where the marriage took place. A Pakistani Divorce Registration Certificate issued by the Government of Punjab and attested by the Ministry of Foreign Affairs in Pakistan which had been submitted was referred to noting that the entry date of the divorce given was just over 12 months before the stated date of effectiveness of the divorce. The Appeals Officer did not consider there to have been a sufficient explanation for this inconsistency. It was also noted that the stamps on the Second Named Applicant's passport did not show him to have been in Pakistan either when the divorce proceedings were initiated or when the divorce...