E.O. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 15 November 2017
• Neutral Citation: [2017] IEHC 816
• Docket Number: [2016 No. 291 J.R.]
• Court: High Court
• Date: 15 November 2017

[2017] IEHC 816

THE HIGH COURT

JUDICIAL REVIEW

Faherty J.

[2016 No. 291 J.R.]

BETWEEN

E. O.

AND

A. O.

AND

C.M. O. (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND E. O.)

AND

C. M.O. (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND E. O.)

AND

C. M. O. (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND E. O.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Asylum, Immigration & Nationality - Refusal of long stay visa - Art. 8 of European Convention on Human Rights ('ECHR') - Judicial review - Public safety - Constitutional rights - Breach of fair procedures

Facts: The first applicant filed an application for judicial review against the order of the respondent who did not grant the second applicant a long stay visa to enter and reside in Ireland. The first applicant contended that the refusal of the appeal would effectively force the infant applicants/children and the first applicant to leave the State. The first applicant also contended that since they were family members, they were all emotionally and financially dependent on the second applicant.

Ms. Justice Faherty dismissed the application. The Court held that it was not satisfied that the first applicant had discharged the burden of proof that rested upon the first applicant. The Court held that the infant applicants/children were dependant on the first applicant and not on the second applicant. The Court held that the denial of visa to the second respondent would not prompt the removal of the infant applicants/children from the State. The Court noted that there would not be any breach of art. 8 if the second applicant would leave Ireland. The Court held that since the second applicant was convicted of commission of serious offences in other jurisdiction, which were repeat offences, the public policy did not favour that long term stay visa should be granted to him.

JUDGMENT of Ms. Justice Faherty delivered on the 15th day of November, 2017

1 This is an application for judicial review of the decision of the respondent dated 11th April, 2016, not to grant the second applicant a long stay visa to enter and reside in the State. Leave to challenge the refusal was granted by order of this Court (Faherty J.) on 12th May, 2016.

Background

2 The second applicant is a national of and resident in Nigeria. The first applicant was originally Nigerian. She arrived in the State in 2004 and sought asylum. The third applicant, a child of the first and second named applicants, was born in the State in 2004 and on foot of that the first applicant was granted residency in 2005 pursuant to the IBC05 Scheme operated by the first named respondent at that time. The first applicant was granted a certificate of naturalisation on 13th December, 2012. The fourth and fifth applicants are also the children of the first and second applicants and they are Irish citizens.

3 On 4th June, 2015, the second applicant applied for a long stay visa to enter and reside in the State. This application was made to the Embassy of Ireland Visa Office in Abuja, Nigeria (hereinafter 'the Visa Office'). This application was refused on 22nd July, 2015. The second applicant thereafter submitted an appeal of this refusal on 16th September, 2015.

4 The appeal submissions set out that the second applicant was currently residing and working in Nigeria. It was pointed out that the first applicant was unemployed and on lone parents allowance. It was stated that she was unable to work as she found it difficult being a lone parent taking care of three young children. Reference was made to the third applicant's medical difficulties. It was advised that if the second applicant was granted a visa to stay with his family in Ireland he would take up employment as soon as possible in order to take care of them so that they would not have to rely on public funds. It was emphasised that the first applicant found it difficult to live separately from the second applicant and that she wished for him to be more involved in the lives of her and their children. Reference was made to the fact that the second applicant had been granted a short stay visa to enter Ireland in 2004 and that he had complied with all of the conditions attached to the visa. Reference was also made to the second applicant having legally resided in Vienna for a period of time where he worked in a post office. Thereafter, he had returned to Nigeria. It was advised that the second applicant entered France legally in 2009 and that he was convicted in France for a drug offence in 2011, for which he received a sentence of four years in prison of which he served 34 months. It was advised that this was a 'first ever conviction' and that the second applicant did not have any previous convictions. The second applicant's instructions were that he was extremely sorry for his actions and had learned from his mistakes. The Appeals Officer was advised that while in prison the applicant had transferred money to support his family and that he had continued to financially assist them. While the second applicant had paid for the family's travel tickets to Nigeria so that they could visit him, it was advised that travel to and from Ireland to Nigeria was not sustainable and was not practical in the long term as it put a financial burden and stress on the family. The loving relationship which the second applicant had with his family was emphasised. Included with the appeal submissions were letters from the first and third applicants, other evidence of written and telephone communication between the second applicant and his family, evidence of money transfers from the second applicant to the first applicant and family photographs.

5 An 'invitation to comment' (hereafter referred to as 'the draft decision') on the appeal was drawn up by the Appeals Officer and it issued to the second applicant on 26th January, 2016.

6 The draft decision advised that the Appeals Officer was minded to uphold the Visa Office's original decision to refuse the visa, albeit for different reasons to those first advised in the refusal of 22nd July, 2015. The Appeals Officer went on to state that in order to protect the second applicant's right to fair procedures, she was setting out her reasoning and inviting the second applicant to comment. She went on to state that the reasons given in the draft decision were not fixed and that any comments the second applicant or his legal advisors had would be taken into consideration before a final decision was made.

7 The Appeals Officer addressed the appeal under the following headings:

- Firstly, whether, through the operation of the Policy Document on non -EEA Family Reunification ('the Policy Document'), including the discretion retained by a decision-maker, the visa application ought be granted; and if not

- Whether under the operation of Article 20 TFEU the application ought to be granted; and if not

- Whether under a consideration of Article 8 rights under the European Convention of Human Rights (ECHR) the application ought to be granted; and if not

- Whether under the Constitution the application ought to be granted.

The Policy Document

8 In the context of the policy document consideration, it was accepted that in general it was in the best interests of minor children that they would be raised in the company of both parents. The Appeals Officers referred to a letter from the third named applicant in support of her father. Notwithstanding that the family did not currently live together as a family unit, it was accepted that it had been established that it would be in the best interests of the children for the second applicant to be admitted to the State. This conclusion was arrived at notwithstanding that the best interests of the child did not inexorably lead to family reunification where it may reasonably be concluded that the strength of other considerations outweighed the best interests principle and where, in the applicants' case, there were ameliorating factors, in particular the existence of an established long distance relationship between the second applicant and his family, involving visits by them to Nigeria and established telephonic and electronic means of communication. However, it was concluded that neither of those aspects set aside the conclusion that it would be in the best interests of the children if the second applicant was admitted to the State. This conclusion however had to be considered in the context of other considerations, including matters of public policy.

9 The Appeals Officer then went on to review the evidence which had been submitted to establish the involvement of the second applicant in the lives of the first named applicant and the infant applicants. She quoted from letters which the first and third named applicants had submitted in aid of the appeal and she noted the level of electronic contact between the parties. The money transfers which the second applicant made to his family in Ireland were noted. It was also noted that the first applicant was in receipt of State support which assist her in taking care of the children, and that the children had access to health care in the State. It was noted that, albeit that no evidence of the visa had been provided, that the second applicant was in Ireland for a short period in 2004. His employment in Nigeria was noted, as were his family ties in Nigeria. The Appeals Officer considered it relevant that neither the first applicant nor the second applicant had been given any assurances by the State that the second applicant would be granted a visa. It was considered that the first and second applicants could not have been unaware of the precarious nature of the second applicant's potential immigration status should he seek to apply for a visa to travel to Ireland and/or to seek some right of residency in the State....