The Court of Appeal has allowed two appeals over refusals under a residency scheme and sent the applicants’ review applications back to the Minister for Justice for reconsideration. The court said the review decisions did not make clear whether the reviewer had engaged with new material and assessed each application “in the round”.
In a concurring judgment delivered on 3 October 2023, Mr Justice Haughton agreed with the conclusion of Ms Justice Faherty. He said the court could not be satisfied from the wording of the review decisions that the required assessment had taken place. He also said he respectfully disagreed with aspects of Ms Justice Costello’s judgment.
The appeals concerned applicants identified in the judgment as S.R. and L.A. The source does not set out the underlying evidence about their individual circumstances. It records that the Minister’s review decisions refused their applications by reference to paragraph 3.7 of the Special Scheme, which requires applicants to have been of good character and conduct before arriving in the State and since arrival.
Haughton said that criterion required an overall assessment and did not impose a requirement of perfect conduct. He rejected the Minister’s submission that a prior finding of a marriage of convenience or the use of false documents necessarily prevented an applicant from challenging a later character assessment. In his view, any questionable conduct had to be weighed alongside the person’s general character.
The judgment distinguished that assessment from the scheme’s separate paragraph 3.6, which requires applicants to have no adverse criminal record and treats that requirement as an absolute eligibility criterion. Haughton said paragraph 3.7 instead called for a moral judgment and was not absolute in its terms.
He said a decision did not need to be discursive, but it had to show that the Minister considered the merits. On review, the Minister also had to consider the original application material alongside new documentary evidence and arguments submitted for review.
The review decisions stated that all information and documentation had been considered. But their closing explanation said the original decision-maker had followed the proper procedures and applied the correct eligibility criteria. Haughton said this wording suggested the reviewer may have focused on the first decision-maker’s process rather than weighing the new material. The court allowed the appeals, remitted both review applications to the Minister for reconsideration, and agreed with the costs order proposed by Faherty J.