The High Court has ruled that the Minister for Justice’s refusal of visas for four children to join their mother and aunt in Ireland was irrational and unfair. It proposed an order quashing the refusal and remitting the applications for reconsideration by a different decision maker.
Mr Justice Barr delivered the judgment electronically on 14 June 2023 in judicial review proceedings brought by the children, their mother and their aunt. The court was reviewing the legality of the Minister’s appeal decision, not deciding the visa applications itself.
The children’s visa appeals were refused on 14 April 2022. Their mother, a Somali citizen who had lawfully lived in Ireland since October 2021, had travelled to Ireland without them after their initial visa applications were refused. The children were being cared for temporarily in Mogadishu by their aunt by marriage, who also had five children of her own.
The applicants argued that the Minister had applied the family reunification policy too rigidly and failed to consider exceptional humanitarian circumstances. The court agreed that the decision maker had applied the policy’s one-year residence requirement to the mother without properly considering whether exceptional circumstances justified departing from it. It also found unfair and irrational the conclusion that there was insufficient evidence of family life between the mother and children before she left Somalia.
The judgment said the decision maker had treated the absence of the children’s father’s consent or a sole-custody order as decisive without adequately accounting for the circumstances, including unrest in Somalia and the children’s care by their paternal aunt. It found the decision maker applied the wrong test by asking whether the children were worse off than other Somali children, and irrationally relied on minor spelling discrepancies in documents she had found authentic.
The court also found that the decision maker had not adequately addressed the applicants’ case that exceptional humanitarian circumstances warranted waiving the policy’s financial requirements. The judgment referred to the mother’s childhood, the destruction of much of her family in a 2009 bombing, her early marriage and motherhood, and the children’s reported temporary care, limited food and lack of schooling in Somalia.
The court concluded that the appeal decision had effectively applied the policy’s eligibility and financial requirements while ignoring relevant past and present circumstances. It said the decision had to be set aside. The final orders had not yet been made: parties were given two weeks to make written submissions on the order and costs, and the matter was listed for mention on 5 July 2023.