The Court of Appeal has dismissed an appeal by an Irish citizen, his Algerian wife and his daughter against a High Court decision upholding the refusal of a visa for the wife to join him in Ireland.
In a judgment delivered on 15 February 2024, Ms Justice Ní Raifeartaigh said none of the appeal grounds had been made out. The court did not decide the visa application afresh: it reviewed whether the High Court had erred in refusing judicial review of the Minister’s decision.
The wife applied for a long-stay join-family visa in September 2017, after the couple married in Algeria that April. The Minister refused the application and later upheld that refusal on appeal. The couple challenged the decision twice in judicial review proceedings; after each case was settled, the Minister reconsidered the appeal. The final refusal, dated 20 August 2021, was then challenged in the proceedings that led to this appeal. The High Court refused relief on 30 September 2022.
The Minister’s reasons included that the Irish citizen did not meet the policy’s financial criteria and that granting the visa would probably create a cost to public funds. The Minister also considered the evidence of the couple’s relationship, the husband’s employment and health, and his relationship with his daughter. The applicants argued that the evidence had been assessed wrongly and that the Minister had misapplied constitutional principles and Article 8 of the European Convention on Human Rights.
The Court of Appeal found no reviewable error in the Minister’s treatment of the evidence. It said the applicants had provided limited supporting material about the couple’s contact, the husband’s role in his daughter’s life, and claims that the child had autism and was homeschooled for reasons connected to the condition. The judgment noted that the child’s mother had supplied a letter, but that the material also included no professional evidence confirming a diagnosis or the child’s needs. The court said a decision-maker could find that a fact had not been proved because the evidence was insufficient without making a categorical finding that the fact was untrue.
On the constitutional arguments, the court accepted that cohabitation is a normal incident of marriage and that the Minister had to consider the circumstances of the couple. It rejected the claim that the Minister had confused visits with living together elsewhere, or imposed a requirement for a pre-marital relationship. It also found that the applicants’ evidence did not establish the factual basis needed for their arguments about the child’s needs, obstacles to living together abroad or the wife’s employment prospects.
The court rejected the Article 8 appeal ground too. It considered the Supreme Court’s later decision in MK (Albania), but said it was unnecessary to determine its precise scope in this case because the evidence did not establish key premises of the applicants’ proportionality argument.
The appeal was dismissed. The court gave a provisional view that costs should be awarded to the Minister, while allowing the appellants 14 days to ask for a short hearing on costs.