S v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Power
• Judgment Date: 11 March 2020
• Neutral Citation: [2020] IECA 74
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2019/61
• Date: 11 March 2020

BETWEEN/

S

APPELLANT

- AND -

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

[2020] IECA 74

Baker J.

Haughton J.

Power J.

Record Number: 2019/61

THE COURT OF APPEAL

Order of certiorari – Independent immigration status – Domestic violence – Appellant seeking independent immigration status as a victim of domestic violence – Whether the reasons provided by the High Court for its findings were inadequate

Facts: The appellant appealed to the Court of Appeal against the judgment and order of the High Court delivered on 29 January 2019 ([2019] IEHC 34) refusing an application by way of judicial review for an order of certiorari quashing the decision made by the respondent, the Minister for Justice and Equality. The decision challenged by the appellant was a refusal by the Minister of his application for independent immigration status as a victim of domestic violence pursuant to the Victims of Domestic Violence Immigration Guidelines 2012. The appellant claimed that the High Court judge erred in law and fact in finding that: (1) the Minister could depart from the terms of the Guidelines and by finding that ‘the Guidelines do not fetter the Minister’s inherent discretion; (2) the Minister had not breached the appellant’s legitimate expectation that the Guidelines would be applied by including an additional criterion to their terms, as published, namely, the existence of ‘immediate and urgent’ domestic abuse; (3) there was no irrationality or internal inconsistency in the contested decisions in the Minister’s finding that the Guidelines encompass two types of dependants – the first type, who hold Stamp 3 permission and are legally and financially dependent upon another person, and the second who holds EU Treaty Rights permission which does not extend to financial dependency, as in the appellant’s case; (4) adequate reasons sufficient to convey the essential rationale of the contested decisions were provided; (5) the Minister did not act unreasonably and/or fail to take into account relevant material and/or act in breach of the appellant’s legitimate expectation that the terms of the Guidelines would be followed as regards supporting documentation; and (6) the impugned decisions did not involve an unjustified or disproportionate breach of the appellant’s rights to privacy, dignity and equality. It was submitted that the reasons provided by the High Court for its findings were inadequate and that the judgment contained insufficient reasoning.

Held by Power J that what the law requires was fulfilled in this case; the appellant applied for independent immigration status under the Guidelines, he had a reasonable expectation that his application would be considered in the light of the Guidelines and it was. She held that he was refused based on detailed reasoning, he was afforded a review of that decision and an opportunity to make further submissions. She held that the materials he submitted were examined individually and assessed appropriately. She held that the process was fair, open and transparent. She could find no irrationality or inconsistency in the decision making process nor did it involve any breach of the appellant’s rights to privacy, dignity or equality, whether under the Constitution or the ECHR. She held that the reasons furnished by the Minister were such as to enable the appellant to know why his application for independent immigration status under the Guidelines was refused. She could make no criticism of the decision making process in this case nor of the High Court’s finding that the Minister was entitled, when exercising his discretion, to have regard, as he did, to the raison d’etre of the Guidelines themselves. She held that it could not be said that the appellant was left in a situation in which he did not know why he failed in his application both before the Minister and the High Court; each point raised by the appellant was addressed. She could not say that the trial judge’s judgment was vitiated by a flaw so fundamental that it was fatally undermined.

Power J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Ms. Justice Power delivered on the 11th day of March 2020

1 This is an appeal against the judgment and order of the High Court delivered on 29 January 2019 ( S v Minister for Justice and Equality [2019] IEHC 34) refusing an application by way of judicial review for an order of certiorari quashing the decision made by the respondent, the Minister for Justice and Equality (hereinafter ‘the Minister’). The decision challenged by the appellant was a refusal by the Minister of his application for independent immigration status as a victim of domestic violence pursuant to the Victims of Domestic Violence Immigration Guidelines 2012 (hereinafter ‘the Guidelines’).

Background

2 Subject to certain specified provisions, permission to remain in the State may be granted to a non-national on behalf of the respondent pursuant to s. 4 of the Immigration Act 2004. An Immigration Officer within the Garda National Information Bureau (‘GNIB’) may grant such permission on the Minister's behalf.

3 On 23 April 2013, the appellant entered the State to undertake certain studies. He registered with GNIB and received a Stamp 2 permission which allowed him to study fulltime in the State. He did not complete his studies and on 20 June 2014 his permission to reside in the State expired.

4 Thereafter, he married IZ, a European Union (‘EU’) citizen and a Latvian national. At the date of the marriage, 12 February 2015, the appellant had overstayed and was illegally present in the State. His wife is a mother of four children, two of whom were born subsequent to the marriage and none of whom is related to the appellant. On 20 March 2015, he applied for a residence card as a family member of IZ under the European Communities (Free Movement of Persons) Regulations 2006 and 2008. On 20 October 2015, he was granted a ‘Stamp 4 EUFam’ permission to remain as the spouse of an EU national, valid until 19 October 2020. This entitled him to enter employment in the State.

5 On 2 August 2016, IZ left the State and returned to Latvia. The appellant has not lived with his wife since her departure from Ireland.

6 On 4 November 2016, the appellant made an application to the Irish Nationalisation and Immigration Service of the Department of Justice and Equality (hereinafter ‘INIS’) for retention of EU Treaty Rights. On the same day, he made a separate application to INIS for seeking permission to reside in the State with independent immigration status pursuant to the Guidelines. On 18 November 2017, his application for retention of EU Treaty Rights was refused and an appeal of this refusal is pending at the date of this judgment.

7 The present proceedings relate only to his application for independent immigration status pursuant to the Guidelines. By letter dated 4 December 2017, his application was refused. On 6 December 2017, he inquired as to whether an appeal procedure existed and on 13 December 2017 the Minister clarified that there was no official appeal permitted under the system. However, in the light of the request made, the Minister agreed to have the appellant's case re-examined by an Assistant Principal Officer. On 4 January 2018, the appellant filed further submissions in the context of the reconsideration of the refusal decision.

8 By letter of 29 March 2018, INIS issued its decision following the re-examination of the appellant's request. It noted that the grant of a review was an error on the part of the Minister as neither an appeal nor a review was provided for under the Guidelines. However, notwithstanding that error, the Minister agreed, on an exceptional basis, to have the original decision re-examined, including, in the light of new information submitted. The review upheld the Minister's original refusal to grant permission to remain in the State pursuant to the Guidelines.

9 On 30 April 2018, leave was granted to seek judicial review in respect of this decision. The appellant sought orders of certiorari quashing:

(i) the Minister's decision on re-examination dated 29 March 2018 affirming his decision to refuse the appellant independent immigration permission in his own right pursuant to the Guidelines and;

(ii) the decision of 4 December 2017 refusing the appellant independent immigration permission in his own right in light of the Guidelines.

10 On 29 January 2019, the application for relief by way of judicial review was refused by the High Court (Barrett J.). This is an appeal of that refusal.

Evidence

11 Before the High Court, the trial judge had available to him a grounding affidavit of 24 April 2018 and an additional affidavit of 2 January 2019 which had been sworn by the appellant in support of his claim. He made averments concerning the abusive nature of his relationship with his wife and the process through which he had sought to obtain permission from the Minister to remain in the State. In support of his claim seeking protection under the Guidelines, the appellant exhibited the following: -

• Copies of certain text messages that were said to have passed between the appellant and IZ;

• Two medical reports (issued on 28 October 2016 and 8 November 2016) signed by a Dr S. in India certifying that he had held two telephone consultations with the appellant (on 15 February 2016 and 2 March 2016) and noting that the appellant had complained of depression and headache and, in the later report, of his being a victim of domestic violence. These letters also noted that the appellant had ‘been relieved of the symptoms’;

• A letter from a Dublin based general practitioner (‘GP’) dated 4 January 2018 and confirming one consultation with the appellant on 10 February 2017 and noting a normal examination apart from slightly high blood pressure with stress being one possible cause;

• Two Fixed Charge Notices made...