Tag Archive for: judicial review

RECENT SUPREME COURT JUDGEMENT REGARDING THE BEST INTERESTS OF CHILDREN IN THE CONTEXT OF DEPORTATION DECISIONS

RECENT SUPREME COURT JUDGEMENT REGARDING THE BEST INTERESTS OF CHILDREN IN THE CONTEXT OF DEPORTATION DECISIONS

The Supreme Court delivered a judgement in the case of A.Z, M.Z and C.Z (a minor) v Minister for Justice and Equality [2024] IESC 35 on 25th July 2024.

The facts of this case surrounded the deportation order of a man who is the father of an Irish citizen child, and is also married to an Irish national. A challenge was brought by the family against the decision of the Minister not to revoke the father’s deportation order. Judge Phelan found in the applicants’ favour in the High Court and the matter was appealed by the Minister for Justice.

The Supreme Court upheld the decision of the High Court.

Several issues arose in the case, one being whether the Minister’s assessment of the father’s immigration application was in line with Article 42A of the Irish Constitution.

Article 42A was inserted into the Constitution in 2015.

Article 42A.1 states as follows:

  1. The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.

 

Sections 2,3 and 4 of the Article are specific provisions as they relate to specific types of proceedings including adoption, custody and access.

Article 42A.1 is a provision of much wider application.

It can be argued that Article 42A.1 recognises and affirms the already pre-existing constitutional rights of children.

Whilst Article 42A.4 is a very specific provision requiring the Minister to legislate for specific types of proceedings, we would say that Article 42A.1 has general application.

Interestingly, in this case, the Minister’s decision in respect of the man’s immigration application contained no reference to Article 42A. In the proceedings, the Minister contended that the Minister had complied with her Constitutional obligations despite no specific reference to the Article being made in the decision.

The Court did not agree with this argument and held that Judge Phelan in the High Court was correct to find that she could not be satisfied, based on careful consideration of the decision, that the rights of the child where properly identified and assessed.

The Supreme Court affirmed the judgment of Judge Phelan which found that following the insertion of Article 42A into the Constitution “effective State protection for the rights of the child now required a greater focus on the child as an individual, separate from the family unit as a whole and not subordinate as part of the family unit. She held that the Supreme Court had found that Article 42A results in some recalibration of the protections which had already been available to children under the other provisions of the Constitution, not least Articles 40, 41 and 42…”

By virtue of Article 42A.1 the Minister is required to identify and assess the individual rights of the child, separate and distinct from the rights of a family as a whole.

It appears to us that the Supreme Court has also held that in the context of deportation decisions, resulting in indefinite separation between a parent and child, the Minister is obliged to consider the best interests of the child as a primary consideration, with each case being decided on its own individual merits. Whilst the Minister must consider the best interests of the child as a primary consideration, there are many considerations the Minister is entitled to have regard to and the requirement that the best interests of the child be a “paramount” consideration is confined to the specific provisions in Article 42A.4.

The full judgements in this case can be accessed below.

https://courts.ie/acc/alfresco/5e689789-56c6-481a-b63b-b74248a1d14b/2024_IESC_35_(Woulfe%20J).pdf/pdf#view=fitH

https://courts.ie/acc/alfresco/0fb290b4-95f9-4e60-b296-8f18398ec7ac/2024_IESC_35_(Collins%20J)_Unapproved.pdf/pdf#view=fitH

EMPLOYMENT PERMITS ACT 2024 SIGNED INTO LAW

RECENT REFUSALS OF EMPLOYMENT PERMIT VISAS

Late last year, Ms Justice Bolger of the High Court delivered a judgement in the case of S v Minister for Justice [2022] IEHC 578, which we discuss in detail in our blog post available here: https://berkeleysolicitors.ie/recent-high-court-judgement-refusal-of-travel-visa-for-employment-permit-holder/

 

The case concerned an Indian citizen who was granted a work permit to take up a position as a tandoori chef. The Applicant then applied for a visa to enable him enter Ireland to take up this employment position, but his visa application was refused. The Applicant appealed against this refusal; his appeal was also unsuccessful. The Applicant initiated Judicial Review proceedings in the High Court, seeking an order of certiorari to quash the decision. Ms Justice Bolger found for the applicant and granted the order quashing the decision.

 

We noted in our blog post that this case raises the conflict that can arise when a person has been granted an employment permit and requires an employment visa to enter the State.

 

The Department of Enterprise, Trade and Employment have responsibility for the issuance of employment permits. When a person who has been granted an employment permit is a national of a country that requires an entry visa to enter Ireland, their application to enter Ireland for the purpose of employment is subjected to a review by the Minister for Justice in their visa application.

 

The Minister in respect of the Applicant in the S case had found in the refusal decision that the Applicant had not provided sufficient evidence that they had the appropriate skills, knowledge, or experience for the employment position in Ireland. The High Court found that a work permit does not constitute prima facie evidence that the Applicant has the skills and experience required for the proposed employment. However, the Court found that it also cannot simply be ignored.

 

The Minister for Justice does not limit her assessment of a visa application to immigration matters only and will often undertake an examination of the Applicant’s suitability for the employment position they have been issued an employment permit for. We are now seeing a series of visa refusals which rely on the S case to allow the Visa Officer to re-assess the Applicant’s suitability for the prospective employment. Some refusals purport to state, in the case of roles such as horticultural workers, meat processing operatives, dairy farm assistants, and healthcare assistants, as such roles require no or few qualifications or experience in circumstances where the employer will provide training, that the Visa Officer is entitled, “in the absence of such safeguards” to “thoroughly assess” an applicant’s suitability to perform their duties. We believe that many of these decisions may unlawfully ignore the employer’s duty to provide training in respect of these roles, and that Visa Office may be inferring an additional requirement at visa processing stage to show qualifications and experience in roles where no qualifications or experience are required by the Department of Enterprise.

 

We further note that these decisions may place an undue reliance on the S case to ignore the Department of Enterprise’s role in assessing a candidate’s suitability for a proposed role. Bolger J. stated at paragraph 37 that: “I do not consider the work permit constitutes the type of prima facie evidence that is contended for by the applicant. However, neither do I accept that it can be ignored.” [emphasis added]. We note that the context to the above quote is that the applicant in that case contended that the Visa Officer “cannot look behind the grant of the permit or require an applicant for a visa to show that they are qualified to do the job for which they were granted that permit.” This would preclude the Visa Offer from having any consideration of the Applicant’s qualifications, skills, or experience in respect of the proposed role. This was not considered to be the case by the High Court. However, importantly, neither can the issuance of the work permit by the Department of Enterprise be ignored in considering an Applicant’s suitability for the proposed role. Therefore, while the issuance of a work permit cannot in and of itself constitute evidence of qualifications and experience or the offer of sufficient training, it is certainly persuasive, and cannot be ignored in the Visa Officer’s consideration of an Applicant’s suitability for the proposed role.

 

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

Clients of Berkeley Solicitors win their judicial review case before the High Court in N.I. V MJE 2022 / 442 /JR

Clients of Berkeley Solicitors win their judicial review case before the High Court in N.I. V MJE 2022 / 442 /JR

Berkeley Solicitors would like to congratulate our clients who have received a positive judgement from the High Court today in their Judicial review proceedings.

The applicant, a minor Somali citizen, issued proceedings through her aunt and next friend challenging a decision of the Minister for Justice to refuse the her visa appeal to join her aunt and family in Ireland following the death of both her parents in Somalia.

We argued on behalf of our clients that the Minister acted in breach of fair procedures on a number of grounds. In refusing to grant the visa, it was submitted that the Minister failed to fully consider the best interests of the applicant in light of her particularly vulnerable position as a 14-year-old orphan residing outside her country of origin, without familial support.

It was submitted by the Respondent that the Applicant had failed to show sufficient evidence of a familial link between the applicant and the sponsor. Furthermore, it was submitted that the sponsor did not prove that she ‘is, or ever had been, socially or financially dependent on the sponsor’. The Minister also considered that the adoption of the Applicant was not recognisable under Irish law in light of the fact that there is no bilateral treaty in existence between Ireland and Somalia governing adoptions and similarly, that Somalia is not a party to the Hague Convention.

As a result, the Minister held that neither Article 41 of the Constitution nor Article 8 of the ECHR protecting the right to family life were applicable to the Applicant and the sponsor.
In setting aside the decision of the Minister, Mr Justice Barr held that the decision maker erred on a number of grounds in failing to recognise that a 14-year old orphan, ‘without any family support in a very unstable country, was not in an extremely vulnerable position, such that it constituted exceptional circumstances’.

Acknowledging the importance of family reunification in situations where individuals had fled persecution, Justice Barr held the Respondent was wrong in concluding that ‘there was no documentary evidence of familial relationship between the applicant and sponsor’. It was accepted that a number of important documents to this effect had been submitted by the Applicant, including a court order transferring guardianship of the application to the sponsor.

Furthermore, the emphasis placed by the decision maker on the issue of adoption as a basis for refusal, ‘an argument that was never put forward by the applicant, nor was put to her for comment’, was held to have breached the applicants right to fair procedure, rendering the decision ‘fatally flawed’.

Referring to the case of Tanda-Muzinga v France (2260/2010), the following passage was highlighted by the Court:
‘there exists a consensus at international and European level on the need for refugees to benefit from a family reunification procedure that is more favourable than that foreseen for other aliens, as evidenced by the remit and the activities of the UNHCR and the standards set out in Directive 2003/86 EC of the European Union’.

It was highlighted by the Court that this obligation is envisioned under Irish law in s.56 of the International Protection Act, 2015. Similarly, in line with our duties under Article 10.1 of the Convention of the Rights of the Child, that ‘applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner’.

Significantly, it was held that the Appeals officer hadn’t sufficiently considered ‘the extremely adverse consequences’ the refusal decision represented for the applicant. As a result, the Court held that the decision clearly constituted ‘exceptional circumstances of a humanitarian nature, which would have justified a departure from the financial requirements of the policy’.
The Judgement will be available on the High Court webpage in the coming days.

Our office wishes to congratulate our clients on this positive development in their case today and would also like to thank our counsel for their dedicated work on this case.

CLIENTS OF BERKELEY SOLICITORS WIN THEIR CASE BEFORE THE HIGH COURT IN H AND ORS V MINISTER FOR JUSTICE 2022 No 553 JR

CLIENTS OF BERKELEY SOLICITORS WIN THEIR CASE BEFORE THE HIGH COURT IN H AND ORS V MINISTER FOR JUSTICE 2022 No 553 JR

Berkeley Solicitors would like to congratulate our client who was successful in her proceedings today.
The applicant is a Somali woman who issued proceedings to challenge the decision of the Minister of Justice refusing long stay visas for her four minor children to join her in Ireland.

The case was brought by way of Judicial Review and was heard by Mr Justice Barr.

In issuing his judgment, Mr Justice Barr found that the key issue in this case was the exceptional humanitarian circumstances that were at play. Justice Barr found that ‘there was no evidence that the decision maker engaged in any real way’ with such factors. Justice Barr submitted throughout his judgment that the respondent failed to take into account ‘the very significant personal dilemma that faced by (the applicant) at the time’ as well as the state of deep political and social unrest faced by citizens in Somalia.

The case concerned a Somali woman who had fled to Ireland to join her sister by way of family reunification under S.18(4) of the Refugee Act 1996. The applicant subsequently applied for her minor children to join her in the State pursuant to the Policy Document on Non-EEA Family Reunification, however her application, and appeal on this decision were refused.

The respondent submitted there was insufficient evidence to corroborate a familial link between the mother and the minor applicants, stating that in entering Ireland:

‘she relinquished her role as the primary caregiver, with the knowledge that the Family Reunification appeal may be refused.’

Mr Justice Barr submitted that such a finding by the Minister was harsh, unfair and irrational.

The respondents further submitted that the applicant was not an eligible sponsor for the visa applications for her children as she had not resided for longer than one year in the State as required by paragraph 16.4 of the Policy Document.

Mr Justice Barr submitted that this case is of an exceptional humanitarian nature and therefore the policy can be departed from in such circumstances pursuant to paragraph 1.12 of the Policy Document:

‘While this document sets down guidelines for the processing of cases, it is intended that decision makers will retain the discretion to grant family reunification in cases that on the face of it do not appear to meet the requirements of the policy. This is to allow the system to deal with those rare cases that present an exceptional set of circumstances, normally humanitarian, that would suggest that the appropriate and proportionate decision should be positive’
The respondents further submitted that the test in finding whether the case in question was of an exceptional humanitarian nature was whether it could be demonstrated that ‘their circumstances are more severe to that of other Somali citizens’

The court found that the decision maker fell into error in making this finding. Mr Justice Barr stated that in order to circumvent the requirements of the policy document it is only necessary for them to establish that they constitute an exceptional set of circumstances. It was found that this ‘does not mean they have to prove their circumstances within the particular country in question are exceptional by the standards of that country.’

Mr Justice Barr also submitted that any submission made by the Minister in relation to errors in spelling on the applicant’s documents, occurring as a result of translations, were of probative value and were made irrationally and unfairly.

Mr Justice Barr further submitted that the financial requirements of the policy document were applied against the applicant without proper consideration of the exceptional humanitarian circumstances.

Mr Justice Barr stated this it was a key issue of the case that the Minister did not engage in a real way the with the exceptional humanitarian circumstances of the case.

The court summarized the findings as follows:

‘In summary, the court holds that to have applied the eligibility criteria and the
financial requirements of the policy in refusing the visa applications on behalf of the
minor applicants, while effectively ignoring the past circumstances of the first
applicant and her children, together with their present circumstances in Somalia, and
in not considering whether these constituted exceptional circumstances, which
warranted a departure from the strict requirements of the policy, rendered the decision
irrational and unfair. On this basis it has to be set aside.’

The court ultimately issued an order of certiorari quashing the Minister’s decision to refuse the visa applications for the four minor applicants.
The full judgement can be accessed via the following link:

https://www.courts.ie/acc/alfresco/231745d1-c37c-45e1-a633-248484d0ebf0/2023_IEHC_316.pdf/pdf#view=fitH

We wish to extend our congratulations to our clients for this ruling.

RECENT SUPREME COURT CASE UPHOLDS MINISTER’S REFUSAL TO EXTEND WORKING HOLIDAY VISA

RECENT SUPREME COURT CASE UPHOLDS MINISTER’S REFUSAL TO EXTEND WORKING HOLIDAY VISA

The Supreme Court has recently delivered a judgement in Jaimee Middelkamp v Minister for Justice and Equality and Irish Human Rights and Equality Commission [2023] IESC 2.

 

The case concerned a Canadian woman who was resident in Ireland pursuant to the Working Holiday Authorisation Scheme, which allows participants between the ages of 18 and 35 to travel to the State to study and work for a limited maximum stay of two years. Ms Middelkamp arrived in the State in 2018 under this Scheme.

 

Ms Middelkamp made an application under s.4(7) of the Immigration Act 2004 before the expiry of her permission, seeking an extended entitlement to remain in Ireland. In her application, Ms Middelkamp highlighted that her husband, a Canadian citizen, was to remain resident in the State for two more years to pursue his studies and that she did not wish to separate from him.

 

This application was refused by the Minister in January 2020, citing the interests of public policy and the common good in maintaining the integrity of the immigration system. The Minister’s decision stated that the appellant’s rights to family life under Art.8 ECHR were not affected by this decision.

 

Ms Middelkamp commenced judicial review proceedings seeking to quash the Minister’s decision, arguing that this violated her right to family life under Art.8 ECHR. The High Court granted an order of certiorari quashing the Minister’s decision. This was then appealed to the Supreme Court. The Supreme Court found that Barrett J in the High Court erred in his decision and upheld the decision of the Minister to refuse an extension of Ms Middelkamp’s permission.

 

Hogan J of the Supreme Court found that the Minister’s decision did interfere with Ms Middelkamp’s right to family life under Art.8(1) ECHR, as its effect was to oblige her to separate from her husband for two years. However, he found that this interference was justified as being necessary in a democratic society. Hogan J highlighted that there was a strong public interest in ensuring that the strict terms of the Working Holiday Authorisation Scheme were adhered to, the terms of which Ms Middelkamp expressly agreed to. If the terms of such Schemes were not adhered to, the State’s capacity to operate these limited-time Schemes would be compromised.

 

Hogan J found that the Minister’s decision letter gave sufficiently detailed reasons for the refusal. He found that although the Minister was in error in stating that Ms Middelkamp’s Art.8 ECHR rights were not engaged by the decision, it was implicit in the decision that although these rights were engaged, they did not prevail against broader public policy objectives.

 

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

EMPLOYMENT PERMITS ACT 2024 SIGNED INTO LAW

DECISIONS TO REVOKE EU FAM RESIDENCE CARDS AND IRISH PASSPORTS POTENTIALLY UNLAWFUL

Two recent judgements of the Superior Courts have called into question the legality of all decisions made by the Minister for Justice in retrospectively revoking EU Fam residence cards, immigration permissions, Irish passports and declarations of refugee status.

 

Please see our previous blog articles on the Supreme Court judgement in U.M ( a minor) v Minister for Foreign Affairs and Trade and Ors [2022] IESC 25,  and the High Court judgement in AKS v the Minister for Justice [2023] IEHC 1.

 

If you have received a decision to revoke your EU Fam residence card on the basis that it was never valid or that it was cancelled with effect from a date in the past or have had your application for Irish citizenship deemed ineligible on the basis of revocation of your EU residence card, these decisions may be unlawful.

 

If a child previously held an Irish passport that was cancelled by the Passport Office as a result of revocation of their parents EU Fam residence card or permission to reside in the State, it is also possible that the decision is unlawful.

 

It is important to seek legal advice if these judgements are relevant to your case.

 

Please do not hesitate to contact Berkeley Solicitors if you have been impacted by these important issues.

 

RECENT HIGH COURT DECISION – REFUSAL OF REFUGEE FAMILY REUNIFICATION FOR NON-MARITAL PARTNER

RECENT HIGH COURT DECISION – REFUSAL OF REFUGEE FAMILY REUNIFICATION FOR NON-MARITAL PARTNER

Ms Justice Bolger of the High Court has recently delivered a judgement in the case of O v Minister for Justice [2022] IEHC 617.

 

The case concerned a Nigerian citizen who applied for refugee family reunification for his non-marital partner and three children in Nigeria pursuant to s.56 of the International Protection Act 2015. The applications for his children were granted, however the application for his partner was refused. The applicant sought to challenge this decision by way of judicial review proceedings in the High Court, seeking to quash the decision. The Court refused the application and did not grant the relief sought.

 

The application was refused on the basis that s.56(9) of the 2015 Act only permits unification with a marital partner, whilst the applicant’s partner was not married to him. Non-marital partners are covered by a separate administrative non-EEA Family Reunification policy.

 

The applicant claimed that s.56(9) is repugnant to the provisions of the Constitution and incompatible with EU law and the State’s obligations under the ECHR. He applicant also claimed that the administrative policy would not afford him reunification with his partner because he was unable to comply with its financial requirements. He argued that limiting statutory family reunification to a spouse will unfairly split non-marital families by leaving one parent isolated from the other and their children. The applicant argued that this limitation is contrary to Articles 40.1 and 40.3 of the Constitution on the right to equality and Article 41 family rights, as well as his rights under the ECHR to non-discrimination. The applicant also sought constitutional protection for his right to cohabit.

 

The Court rejected the argument that the applicant was being treated less favourably than a married refugee who has been separated from their spouse. The Court in making this determination considered the Minister’s submissions that the applicant was married to a third party and that this marriage had not been dissolved. The Court was satisfied that the applicant’s status is therefore that of a married person and he could not assert a constitutional right to equality of a non-married person to be treated equally to a married person.

 

The Court did not accept the assertion by the applicant that his non-marital relationship is akin to the marital relationship that is recognised under Irish law. The Court stated that insofar as the applicant contended that the relationship between him and his partner was akin to marriage, it could only be akin to a polygamous marriage, which is not recognised in Irish law.

 

In considering the applicant’s argument that there is a constitutional right to cohabit, the Court rejected that such a right existed. The Court further concluded that no EU rights are engaged in the application of s.56 of the 2015 Act and therefore the ECHR is not applicable.

 

The Court therefore found that it is not unlawful that unmarried partners are not included as family members under s.56 of the Act. The Minister has discretion in assessing the extent of family reunification to be afforded to refugees and is entitled to limit this. The Court found that applicants have a non-statutory procedure which they can use to apply for their unmarried partners, via a long-stay visa application, asking the Minister to disapply financial criteria if necessary. The Court found that the State had not breached the applicant’s constitutional rights by providing a different, and potentially more restrictive, non-statutory administrative policy for non-marital family reunification.

The full judgement can be found here:

https://www.courts.ie/acc/alfresco/d322aab5-cda8-461b-b019-dc363a071c70/2022_IEHC_617.pdf/pdf#view=fitH

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

REFUSAL OF NATURALISATION APPLICATION ON GOOD CHARACTER GROUNDS OVERTURNED BY HIGH COURT

REFUSAL OF NATURALISATION APPLICATION ON GOOD CHARACTER GROUNDS OVERTURNED BY HIGH COURT

Mr Justice Garrett Simons of the High Court has recently delivered a judgement in the case of A.J.A v Minister for Justice [2022] IEHC 162 JR.

The case concerned a refusal of an application for naturalisation.

The application was refused on the grounds that the Applicant did not meet the good character criterion under Section 15(1)(b) of the Irish Nationality and Citizenship Act, 1956. The Applicant was found to have submitted a potentially false Somali passport with her application.

The Applicant subsequently issued judicial review proceedings in the High Court to challenge the decision to refuse her application for a certificate of naturalisation. This was the second set of judicial review proceedings issued by the Applicant in respect of her application for naturalisation. The Applicant had issued judicial review proceedings in 2021 challenging the delay in processing her application. These proceedings were struck out of the High Court in January 2022, following the issuance of a decision on the Applicant’s application in December 2021.

The primary issue that was considered in the second set of judicial review proceedings was whether fair procedures had been observed in the Minister’s decision-making process.

The Applicant submitted her application for naturalisation on the 29th May 2017. On the 6th November 2017, the Applicant’s solicitors submitted a letter to the Minister that highlighted the Applicant’s concern as to the genuineness of the passport that she had submitted with her application. On the 10th May 2018, the Applicant’s solicitors sent a further letter to outline attempts made by the Applicant to have a new Somali passport issued. The Respondent then sent a letter in response, confirming that a thorough investigation was required as to the genuineness of the Applicant’s passport.  It was the Applicant herself who proactively contacted the Minister in relation to this issue and confirmed that she had always acted in good faith in respect of her application for a passport and in respect of her application for naturalisation.

The Applicant was ultimately successful in the High Court on the grounds that the Minister’s decision did not consider the Applicant’s explanation nor the exculpatory factors at issue.

Mr Justice Garrett Simons found that submission of the Minister did not meet the prescribed standard of fair procedures as it failed to acknowledge the explanations offered by the Applicant in respect of her passport. Ms Justice Garrett Simons found that, “The omission from the submission/recommendation of an accurate record of the explanation and exculpatory factors is fatal to the validity of the decision made.” The Court further found that the Minister’s decision did not meet the legal test for the adequacy of reasons.

The Court acknowledged that the submission of a false passport is an extremely serious issue and could of course legitimately give rise to a decision to refuse an application for Irish citizenship by way of naturalisation. The Court found that it was the manner in which the decision was made that was problematic, it was not clear whether the Applicant’s explanation that due to the circumstances in Somalia and the lack of Government, she could not confirm if her passport was valid or not,  had been provided to the Minister when the decision to refuse was made. The Court held that “The failure of the respondent in the present case to take the basic step of identifying the precise documents which had been submitted to the ultimate decision-maker is regrettable”.

The Minister of Justice’s decision to refuse the Applicant’s naturalisation application was quashed. The Court held:

 

  1. The submission/recommendation in the present case failed to meet the prescribed standard of fair procedures. The principal deficiency is that the submission/recommendation fails to record, even in the most cursory form, the explanations offered by the Applicant, through her solicitors, for the submission of the false passport. There is no reference to the practical difficulties asserted by the Applicant in obtaining a passport from Somalia given what is said to be the absence of a functioning central government there. Nor is there any reference to the efforts made by the Applicant to travel to the Somali Embassy in Belgium for the purpose of obtaining a passport. Although these events occurred after the submission of the false passport, they are, 13 arguably, indicative of the practical difficulties which a Somalia national, who has been long-term resident in the Irish State, faces in obtaining a passport from that country

The full judgement can be found here.

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

RECENT HIGH COURT JUDGEMENT- REFUSAL OF TRAVEL VISA FOR EMPLOYMENT PERMIT HOLDER

RECENT HIGH COURT JUDGEMENT – REFUSAL OF TRAVEL VISA FOR EMPLOYMENT PERMIT HOLDER

Ms Justice Bolger of the High Court has recently delivered a judgement in the case of S v Minister for Justice [2022] IEHC 578.

 

The case concerned an Indian citizen who was granted a work permit to take up a position as a tandoori chef. The Applicant then applied for a visa to enable him enter Ireland to take up this employment position, but his visa application was refused. The Applicant appealed against this refusal; his appeal was also unsuccessful.

 

The Applicant initiated Judicial Review proceedings in the High Court to challenge the Minister’s decision, seeking an order of certiorari to quash the decision. Ms Justice Bolger found for the applicant and granted the order quashing the decision.

 

The Minister refused the visa application on the basis that there was insufficient documentation submitted in support of the application. The Minister stated that there were inconsistencies and contradictions in the information supplied. Lastly, the Minister stated that the visa sought was for a specific purpose and duration, and the applicant had not satisfied the visa officer that such conditions would be observed. The Minister highlighted that the applicant had not provided sufficient evidence that they had the appropriate skills, knowledge, or experience for taking up the employment position in Ireland.

 

The appeal was also refused on the basis that the applicant had not addressed the refusal reasons listed in the refusal letter. The Minister relied on evidence from a telephone interview with the applicant in which he was asked what type of food he would be cooking, to which he replied, “Indian breads.” The applicant was then asked about cooking other dishes such as chicken tikka and he confirmed that this was not part of his job as a tandoori chef but that he had a basic knowledge of this type of cooking.

 

The Court found that the appeals decision did not state what documentation was missing from the applicant’s application, nor was missing documentation identified during the application or appeal process. The Minister’s deponent swore an affidavit in the proceedings which took issue with the applicant’s failure to submit a supplementary form that was required by the Minister. It was further highlighted that payslips, tax forms and evidence of experience or qualifications were missing, however this was raised for the first time after judicial review proceedings were initiated.

 

The Court found that it was unreasonable for the decision maker to dismiss the applicant’s two work references because of an absence of a website. The decision maker had claimed the lack of a website meant they were unable to check the references, when one written reference may have included a website and both references included mobile numbers which were not checked by the Minister.

 

Regarding the alleged inconsistencies in the application, the Court found that it was unclear from the appeal decision what these inconsistencies were. The decision maker had concluded based off the interview that the applicant could not provide detailed recipes for food which he would be required to cook in Ireland. The Court found that this was not a reasonable conclusion for the decision maker to reach, as the applicant’s work permit made it clear that his job was to make specialty tandoori bread, which the employer was satisfied the applicant had sufficient experience in. The applicant never claimed he would be required to cook chicken tikka or chicken dishes in Ireland and there was therefore no need to question him about his experience in this regard.

 

The Court found that a work permit does not constitute prima facie evidence that the applicant has the skills and experience required, to the point that the Minister for Justice cannot look behind the grant of the permit or require an applicant for a visa to show they are qualified to do the job for which they were granted the permit, in the assessment of the visa application to enter Ireland. However, the Court found that it also cannot simply be ignored.

 

The Court further found that there were no reasons or explanations given for the Minister’s decision that the applicant had not satisfied the visa officer that the conditions of the visa would be observed. The Court found that the reasons set out in the appeal decision were very brief. Ms Justice Bolger highlighted that the reasons set out in the decision fell well short of what is required.

 

This case raises the interesting conflict that can arise when a person has been granted an employment permit and requires an employment visa to enter the State.

 

The Department of Enterprise, Trade and Employment have responsibility for the issuance of employment permits. When a person has been granted an employment permit is a national of a country that requires an entry visa to enter Ireland, their application to enter Ireland for the purpose of employment is again subjected to a review by the Minister for Justice in their visa application.

 

It is the Minister for Justice who has responsibility for the issuance of visas and immigration permissions.  In our experience the Minister for Justice does not limit her assessment of the visa application to immigration matters only and will often undertake an examination of the applicant’s suitability for the employment position they have been issued an employment permit for.

 

It is a very unfortunate and regrettable position for a person who has been successful in obtaining an employment permit to come and work in Ireland to then be refused entry to the State to take up that employment due to concerns raised by visa officers as to the applicant’s suitability for an employment position.

 

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

Clients of Berkeley Solicitors win their judicial review case before the High Court in N.I. V MJE 2022 / 442 /JR

RECENT HIGH COURT JUDGEMENTS RELATING TO EU RESIDENCE CARDS

Ms Justice Bolger of the High Court has recently delivered a judgement in the case of K v Minister for Justice [2022] IEHC 582. The case concerned a review of the decision to revoke an EU Residence Card which had been previously granted to the spouse of a Latvian citizen. The submissions put forward by the applicant were rejected by the Minister, who found firstly that the applicant’s marriage to an EU citizen was one of convenience, and secondly that the applicant had submitted false and misleading documentation in support of his application for a residence card.

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