The Court of Appeal has dismissed an appeal by a mother, a father and their three daughters against a High Court decision that left in place the refusal of the father’s visa to join his family in Ireland. The court’s judgment, delivered by Ms Justice Power on 13 August 2020, upheld the visa refusal; it did not grant or decide a new visa application.
The father, identified as A.O., applied in 2015 to join his partner, E.O., and their daughters, all Irish citizens. The Minister’s Appeals Officer refused the application in April 2016. The reasons included the father’s French convictions for six offences, including repeated drug offences, concerns about public policy and public security, and the sponsor’s failure to meet the financial requirements in the family reunification policy. The officer also considered the children’s best interests and accepted that, in principle, their interests favoured their father joining them.
The family argued that refusing the visa would lead E.O. to move to Nigeria with the children, engaging their EU citizenship rights under the CJEU’s Zambrano ruling. The Court of Appeal found that the refusal did not compel the children to leave Ireland or the EU. It said the evidence did not establish an appreciable risk that the mother’s stated intention to leave would become reality, and that the children could remain in Ireland with their mother, their primary carer. The court also concluded that the children had not been shown to depend on A.O. in the way required for a derived right of residence under EU law.
The court said the EU Charter did not apply because the visa decision was made under national immigration law, rather than in implementation of EU law. It added that, even if a derived right of residence could arise, the Minister could refuse it on public policy or security grounds after an individual assessment. The Court of Appeal considered the seriousness and repeated nature of A.O.’s offences, the time since his release, his French re-entry ban, the children’s circumstances and the family’s ongoing contact. It concluded that the Appeals Officer was entitled to find a genuine, present and sufficiently serious threat and that the decision was proportionate.
The court also rejected the challenge to the assessment of less restrictive measures, finding that the proposed conditions, including a visa linked to employment, had been considered. It held that judicial review was not a rehearing on the merits and that the High Court had applied the correct principles. The separate Article 47 Charter effective-remedy claim had not been pursued in the High Court and was not properly before the Court of Appeal.
The appeal was dismissed. The court’s provisional view was that the respondents should receive the costs of the High Court proceedings and the appeal, while allowing the appellants 28 days to make written submissions for a different costs order.