The High Court has sent part of a decision refusing long-stay visas to an Irish citizen’s wife and children back to the Minister for Justice for reconsideration, finding that the decision failed to properly recognise the marriage or respect the institution of marriage.
Ms Justice Miriam O’Regan gave judgment on 4 December 2024 in judicial review proceedings brought by five applicants against the Minister. The challenge concerned a decision of 1 September 2023 refusing visa appeals made by the wife and children. The husband is an Irish citizen; the family has lived apart, with the wife and children in Turkey, where they are international protection applicants.
The applicants argued, among other things, that the decision wrongly separated financial support from emotional and social support, inadequately assessed travel and photographs, and unreasonably found that the husband’s relationship to two of the applicants had not been established without DNA testing. They also challenged the assessment of family rights under the Constitution and Article 8 of the European Convention on Human Rights.
The judge rejected those grounds. She found it was open to the Minister to assess financial and social support separately, and that the decision could be understood despite referring both to insufficient social support and to family life under Article 8. She was not satisfied that the travel or photographs had been disregarded. Nor did the visa officer’s mention of the option to request DNA testing require the Minister to request it; the applicants could have obtained testing themselves, and the court was given no reason why they had not.
The court also rejected the Article 8 and child-best-interests challenge, saying the applicants had not shown that family-life rights were infringed or that the respondent had failed to act in the interests of the youngest applicant.
The outcome differed on the Article 41 challenge concerning marriage. The judge found the decision did not adequately consider the couple’s circumstances under principles set out in an earlier Supreme Court judgment. In particular, it did not address whether they could live together in their country of origin or elsewhere, the length of their marriage, or that their separation had not arisen by choice. The judge said annual or twice-yearly visits could not substitute for cohabitation. The family’s uncertain permission to remain in Turkey was also relevant to whether the husband could continue visiting.
The court held that the decision on Article 41 failed to recognise the relationship or respect the institution of marriage, and remitted that aspect to the Minister for further consideration. Depending on that reconsideration, the youngest applicant’s interests may also need to be revisited. All other relief was refused.
The judge’s provisional view was that the applicants should receive their costs, subject to written submissions within seven days if either party disagreed. No final costs order is recorded in the judgment excerpt.