Ratushnyak v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 16 August 2019
• Neutral Citation: [2019] IEHC 619
• Court: High Court
• Docket Number: [2017 No. 996JR]
• Date: 16 August 2019

[2019] IEHC 619

THE HIGH COURT

JUDICIAL REVIEW

Keane J.

[2017 No. 996JR]

BETWEEN

HALYNA RATUSHNYAK

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Judicial review – Visa – Proportionality – Applicant seeking judicial review – Whether the respondent’s decision was disproportionate

Facts: The applicant, Ms H Ratushnyak, sought judicial review of a decision, made by the respondent, the Minister for Justice and Equality, on 25 October 2017, to refuse the appeal of Ms O Ratushnyak, a citizen and resident of the Ukraine, born on 13 October 2000, against the refusal to grant her a visa to enter and reside in Ireland. The applicant was the aunt and sponsor of the unsuccessful appellant. The applicant set out eleven separate grounds of challenge to the review decision in her statement of grounds. They were condensed into three broad issues in the applicant’s written and oral submissions: (i) Art. 40.3.1 or 41 of the Constitution and Art. 8 of the ECHR; (ii) errors of law or fact; and (iii) proportionality.

Held by the High Court (Keane J) that the applicant had failed to persuade it that the Minister’s review decision was reached in breach of her family rights under the Constitution of Ireland or the ECHR. Keane J held that the Minister did not err in fact or law in determining that: (i) the applicant had not demonstrated close personal ties with the niece; (ii) the applicant had not established that the niece was socially dependent upon her; (iii) the applicant had not established ties with the niece beyond normal emotional ties; (iv) the applicant had not established special circumstances that would warrant the grant of a long-term residence visa to the niece as an exceptional measure; (v) the applicant could continue to support the niece in the Ukraine; (vi) the niece was applying for a visa solely as the adopted daughter of the applicant and not solely, or alternatively, as her niece; (vii) it was unnecessary to consider the best interests of the niece as a child in considering the application. Keane J held that the applicant had not shown that the decision was disproportionate, particularly given that her niece was not at a very dependent age at the material time.

Keane J held that the application would be refused.

Application refused.

JUDGMENT of Mr Justice David Keane delivered on the 16th August 2019

Introduction

1 This is the judicial review of a decision, made by the Minister for Justice and Equality (“the Minister”) on 25 October 2017, to refuse the appeal of Oksana Ratushnyak, a citizen and resident of the Ukraine, born on 13 October 2000, against the refusal to grant her a visa to enter and reside in Ireland (“the review decision”).

2 The applicant is the aunt and sponsor of the unsuccessful appellant, who – for ease of reference - I will refer to as “the niece” for the remainder of this judgment.

3 The applicant is also a citizen of the Ukraine, born in 1973, who entered Ireland in 2002 and became a naturalised Irish citizen in 2012.

Background

4 Through her solicitors, the applicant applied online for a “long stay visa” for her niece on 4 May 2016, before forwarding a signed application form and supporting documentation to the Irish Consulate in Kiev, under cover of a letter, dated 18 May 2016, which contained extensive submissions. The niece was then 15 years old.

5 The applicant sought that visa for the niece on, essentially, the following basis.

6 The applicant's sister, who was the niece's mother, died in 2009. The niece's father had abandoned the family in 2003 and was later declared a missing person.

7 Since their mother's death, the niece and her sister have lived with and been cared for by their grandmother, the applicant's mother, to whom their guardianship had passed under Ukrainian law. The niece's sister has a physical disability. The applicant's mother was then 65 years old and felt unable to continue looking after two teenage grandchildren, although she was prepared to look after one.

8 The applicant has travelled to Ukraine many times since 2002 to spend time with her family, including her niece. The applicant's mother and the niece travelled to visit the applicant in Ireland in 2014 or 2015 – there was some confusion on the point, though nothing turns on it. In recent times, the applicant has provided some financial support to her mother for her niece's care and maintenance. The applicant is in regular video contact with the niece over the internet.

9 The applicant married a Ukrainian man in Ireland in 2007. They have one child born in that year. They separated in February 2015. The applicant lives and works in Ireland, where she is employed as a payroll administrator.

10 In consultation with her family, in 2015 the applicant decided to take over parental responsibility for the niece and, on 11 February 2016, successfully applied to a court in the Ukraine to be appointed the niece's guardian. Because the Ukraine is not a signatory to the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (“the Hague Adoption Convention”), that adoption is not recognised by Ireland.

11 Nonetheless, the applicant initially sought a long term visa for the niece to enter and reside in Ireland as both the applicant's legally adopted daughter in the Ukraine (an adoption that the applicant submitted Ireland was obliged to recognise in deference to the lex loci, i.e. the law of the Ukraine, despite the inapplicability of the Hague Adoption Convention to an adoption in that state), and as the proposed subject of an adoption application by the applicant in Ireland in due course. The niece was then 15 years old.

12 On behalf of the Minister, the Irish Naturalisation and Immigration Service (“INIS”) wrote to the niece on14 October 2016 to inform her that her visa application had been refused. The reason given was that insufficient documentation had been submitted in support of it. More specifically, the letter stated that, since the Ukraine is not a signatory to the Hague Adoption Convention, the applicant's adoption of the niece in the Ukraine could not be recognised under Irish law. The letter went on to state that the applicant had been unable to submit to the Minister a copy of the appropriate “Certificate of Eligibility and Suitability”, required by the Adoption Authority of Ireland. The letter continued that the Minister had separately concluded that there were no “extenuating circumstances” attending the application because there was no reason why the niece's living arrangements in the Ukraine could not continue as they were. The meaning or significance of the term “extenuating circumstances” as it appears in that letter has not been made clear but nor has any issue been raised on the point.

13 Through new legal representatives, the applicant wrote to the Irish Embassy in Moscow to appeal that decision on 18 November 2016, making submissions and enclosing additional documentation in support of that appeal. The niece was then 16 years old. In essence, the applicant now sought a visa for her niece not as her adopted daughter, but as her dependent niece and godchild, who she hoped to adopt in Ireland in due course, although she continued to argue – perhaps, in the alternative - that Ireland was obliged to recognise the Ukrainian adoption in deference to the lex loci The applicant's legal representatives forwarded yet more documentation in support of that appeal under cover of a letter, dated 12 June 2017, by which time the niece was 16 years old.

The review decision

14 On 25 October 2017, the INIS wrote to the niece to inform her that her appeal against the refusal of her visa application had not been successful and that the original decision to refuse the application had been upheld. The reason given was that the application did not meet the qualifying criteria. The letter continued:

“The applicant has provided a Certificate of Adoption from Ukraine to support her application. At this time, however, Ukraine's adoption laws are incompatible with Irish adoption law and as such, inter-country adoptions from Ukraine are not currently recognised by the Adoption Authority of Ireland.”

15 An eight-page “consideration of visa application” by an official in the Irish Embassy in Moscow (“the consideration document”), also dated 25 October 2017, was enclosed with the INIS letter.

Procedural history

16 By Order made on 18 December 2017, Humphreys J granted the applicant leave to apply for judicial review of the Minister's decision. The applicant was permitted to seek each of the reliefs claimed in her statement of grounds, dated 15 December 2017, on the grounds set forth in it. That statement is supported by an affidavit of the applicant, sworn on the same date. The Minister filed a statement of opposition on 10 April 2017, grounded on a short pro forma affidavit of verification of Emma Peppard, a higher executive officer in the INIS, sworn on the same date.

17 The proceedings were transferred to the list to fix dates on 16 April 2018 and were heard on 9 May 2018. By then, the niece was 17 years of age.

18 I pause to note that, under s. 3 of the Adoption Act 2010, as amended (“the Act of 2010”), “child” means any person who is under the age of 18 years. Under s. 23 of the Act of 2010, the Adoption Authority of Ireland shall not make an adoption order in respect of a child unless the child resides in the State and is, at the date of the making of the adoption order, less than 18 years of age. Having regard to the procedure for domestic adoptions provided under Part 4 and Part 5 of the Act of 2010, even had it been possible to give judgment ex tempore on the wide range of issues raised by the applicant; had that judgment resulted in an order quashing the review decision; and had a long term visa subsequently been granted for the niece to enter and reside in...