The High Court has granted four applicants leave to seek judicial review of a decision refusing two South African parents permission to reside in Ireland with their daughter and son-in-law. The court did not determine the full judicial review or overturn the Minister’s decision at this stage.
The challenge concerns the Minister’s 27 July 2010 refusal, under section 4(7) of the Immigration Act 2004, to extend residence permission for Margaret and Leon Lemiere. Their daughter, Desiree O’Leary, and her husband, Diarmaid, are also applicants. The judgment records that the Lemieres had been living with the O’Learys since June 2010 and that their permission had expired at the end of July.
The court described evidence of financial and practical support, including regular payments from the O’Learys and use of a credit card for the Lemieres’ medical costs and other expenses. After medical insurance, the couple’s monthly income was about €250, the judgment said. It also referred to their health problems and to the care their daughters provided after both parents were hospitalised in South Africa in July 2008.
The Minister’s July 2010 memorandum questioned whether the financial support was adequately proved, whether the family’s relationship went beyond ordinary courtesies, and whether the Lemieres had tried to manipulate the immigration system. The judge rejected key aspects of that assessment, finding the support significant in the Lemieres’ circumstances and the O’Learys’ involvement substantial. He also said the applicants had complied with Department directions and that there was no procedure for them to apply for residence before arriving from visa-exempt South Africa.
The judgment held that an adult child’s decision to support and invite ageing parents to live with her could engage family rights under Article 41 of the Constitution, where the relationship was real and substantial. It recognised that the State could impose conditions to protect public funds and require comprehensive private health insurance.
The court granted leave to challenge the refusal on the grounds that it disproportionately interfered with Ms O’Leary’s Article 41 rights and was not based on a fair and reasonable assessment of the facts. It also granted leave to raise arguments under Articles 8 and 14 of the European Convention on Human Rights, and on reverse discrimination under EU law. The ECHR arguments would arise only if the domestic constitutional claims did not succeed.
This was a leave decision: the applicants established substantial grounds to bring the challenge, but the court made no final ruling on whether the refusal was unlawful or on the Lemieres’ entitlement to reside in Ireland.