The High Court has granted leave to seek judicial review of the Minister for Justice’s 2014 refusal of a Nigerian woman’s application to remain in Ireland with her daughter, an Irish citizen. The leave is limited to two grounds about whether humanitarian circumstances were considered and whether the refusal was adequately explained. The court refused leave on a separate constitutional and Article 8 ground.
The judgment, delivered by Ms Justice Faherty on 19 May 2017, concerned an application for leave to challenge a decision dated 26 August 2014. The mother had entered Ireland on a 90-day visitor visa in September 2010 and remained after it expired. Her daughter’s solicitors applied in July 2014 for long-term residence permission, referring to the mother’s claimed dependency, her health conditions and the care her daughter said she provided. The application also sought temporary permission while it was considered.
The Minister refused an extension of visitor permission and directed the mother to arrange to leave by 25 September 2014. The refusal letter said a deportation proposal could follow if she did not leave. The attached assessment referred to the family reunification policy, the mother’s children in Nigeria, and the need to apply for an appropriate visa from outside Ireland. It also said the circumstances did not warrant an extension of visitor permission.
The judge described the application as having features of both a request to extend earlier permission and a request for long-term residence as a dependent parent. Because the refusal referred to an extension under section 4(7) of the Immigration Act 2004, the court applied the substantial-grounds threshold for leave, despite the Minister’s argument that the request was in substance a separate application by someone without current permission.
The court found substantial grounds to argue that the refusal was unclear about its actual rationale and whether the decision-maker considered if special humanitarian circumstances could justify accepting an in-country application. It also found substantial grounds to argue that the Minister may have unlawfully fettered her discretion by refusing the application because it was made from within Ireland, and that the decision did not give adequate reasons for rejecting the claimed humanitarian circumstances.
Leave was granted to seek certiorari on those two grounds. The court did not decide whether the refusal was unlawful or whether the mother should receive residence permission. It refused leave on the argument that the Minister had failed to consider constitutional or Article 8 rights at that stage, distinguishing the mother’s undocumented period after her visitor permission expired from the lawful residence considered in the cited Luximon case.