The Court of Appeal allowed the Minister for Justice’s appeal against a High Court order quashing the refusal of a join-family visa application. It held that the Minister was entitled to exclude WhatsApp and call records that had not been translated and were not supported by evidence identifying the phone numbers involved.
The case concerned a Kenyan citizen’s third application to join his wife, an Irish citizen, in the State. The Minister refused the application on appeal on 30 June 2021. The High Court later quashed that decision on a narrow ground, finding that the decision-maker had wrongly treated the untranslated records as material that “cannot be considered” and should have allowed the couple’s solicitors to address questions about identifying the participants and presenting the records.
The Court of Appeal disagreed. It said the applicants bore the burden of satisfying the Minister and had to provide accurate translations when relying on documents in a foreign language. The records included WhatsApp messages, call logs and message transcripts covering several periods between 2016 and 2020. The only evidence linking the relevant numbers to the couple was an assertion in their solicitor’s letter, the court said; that assertion did not establish the connection.
The court said that evidence identifying the numbers as the couple’s could have given the records limited value in showing how often and for how long they communicated. Without that evidence, those matters had not been established before the decision-maker. It also rejected the couple’s argument that requiring translations breached marital privacy. The court said there was no absolute right to marital privacy in this context, where the applicants asked the Minister to assess the nature of their relationship to support the visa application.
The High Court had remitted the matter to the Minister for reconsideration and had not decided the other grounds in the judicial review. The Court of Appeal did not finally determine whether those remaining issues should go back to the High Court. It invited written submissions from the couple within 14 days on remittal and costs, with the Minister allowed 14 days afterwards to reply. The court’s provisional view was that the Minister, having succeeded in the appeal, was entitled to costs. It noted that excluding the records might effectively determine the visa application, but made no final order on that point in this judgment.