The High Court ruled that an application by Romanian national Valentine Iatan to join his refugee wife in Ireland must be treated as an application under section 18 of the Refugee Act 1996 and decided by the Minister for Justice.
Mr Justice Clarke found that a Department letter had led the family and their solicitor reasonably to believe that applying for a visa through the Irish Honorary Consul in Bucharest was the way to make a family reunification application. After the visa was granted, Mr Iatan travelled to Ireland and received a one-year permission to remain and work. No one told him that a separate section 18 application was needed.
The confusion came to light after Mr Iatan lost his immigration identity card and was told that his permission to remain had expired. The State argued that the visa only allowed him to travel to Ireland, the later permission only covered its stated one-year period, and no section 18 permission had been granted. It said a fresh application could be considered on its merits.
The judge agreed that a visa, a time-limited immigration permission and a section 18 permission are legally distinct. But he found the Department’s guidance had created a legitimate expectation that the Bucharest visa application would be treated as the section 18 application, and that the visa decision would count as the decision on that application to the extent no statutory discretion was involved.
The court held that the application had therefore been pending since it was made and that the Minister had failed to decide it in a timely manner. The Minister could not revisit whether Mr Iatan was a member of his wife’s family for the purpose of the application, the judge ruled, but could still consider whether public policy or national security grounds justified refusal.
Mr Justice Clarke said he would make an order of mandamus requiring the Minister to determine Mr Iatan’s entitlement under section 18, with declaratory relief giving effect to the judgment. Pending the decision, he said it would be inappropriate to prevent Mr Iatan from remaining in Ireland or working. The precise form of the order was left for counsel to address after considering the judgment.