High Court refuses certiorari where a valid refusal ground remains despite procedural errors on DNA evidence.

[2017] IEHC 81

THE HIGH COURT

JUDICIAL REVIEW

[2015 No. 670 J.R.]

BETWEEN

A AND E (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND V.T.A.) AND V.T.A.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

JUDGMENT of Ms. Justice O’Regan delivered on the 16th day of February, 2017

Issues

1. The application herein is for an order for certiorari to quash the decision of the respondent of the 23rd September, 2015 wherein

the respondent refused to grant the first named applicant a join parent visa. Leave was afforded on 21st December, 2015 enabling

the applicant to seek an order for certiorari in respect of the decision together with if necessary an order of mandamus

to compel the respondent to determine the applicant’s application for a join parent visa according to law. At the hearing of the action

notwithstanding that there was no application for declaratory relief nevertheless the applicants did suggest that within the discretion

of the Court remained capacity notwithstanding a failure to include same within the grounds, to afford certain declaratory relief.

Background

2. The first named applicant is a national of Nigeria and was born apparently in 1998. The second named applicant is an Irish national

and asserts herself to be the mother of the first named applicant. An initial application for a join parent visa was maintained in or

about December, 2004 which was refused on various grounds on 20th January, 2015. An appeal was maintained bearing date 11th

March, 2015 and the ultimate decision on appeal of 26th March, 2015 was to refuse the appeal. A second application for a join parent

visa was maintained on 17th June, 2015 and this application was rejected on 8th July, 2015. The decision was appealed by letter of

28th August, 2015 and ultimately by decision of 23rd of September, 2015 the refusal of a visa was upheld. The respondent

throughout maintains that there were several inconsistencies in the various applications made on behalf of the second named

applicant within the State and there was insufficient evidence to demonstrate an ongoing relationship between the applicants. In the

second visa application aforesaid the applicant submitted DNA evidence to establish a parent/son relationship however the respondent

did not accept this as evidence as the respondent had not partaken in the securing of the DNA evidence. The applicant offered to

undergo a DNA test to establish her parentage of the first named applicant within the respondent’s procedures and part of the

complaint in the statement of grounds is that there is no reference in the impugned appeal to this offer.

Policy document on non EEA family reunification

3. Both parties accept that this document guides the respondent in her decision making on family reunification in applications for visas

in the instant type circumstances. The applicant complained that the policy document was not adhered to whereas the respondent

asserts that it was. The following references have been made to the policy document:-

(i) The respondent refers to p. 6 thereof where it is stated:-

“The onus of proof as to the genuineness of the family relationship rests squarely with the applicant and sponsor whether

that person is an Irish national or non-EEA national.”

(ii) At para. 13.4 at p. 37 it is stated:-

“The onus will be on the applicants for family reunification to satisfy the immigration authorities that the familial

relationship is as claimed. This is particularly important where children are involved. In certain cases where reasonable

doubt exists, the parties may be asked to provide DNA evidence in support of the claimed relationship. Guidelines

regarding DNA evidence and the circumstances in which it might be used are set out in appendix A.”

(iii) Paragraph 14 of the document deals with the meaning of “dependency” which consists of financial support and social

dependency between the two parties this dependency must pre-exist the application for family reunification.

(iv) Appendix A at p. 69 has been referred to by both parties and it states that the provision of DNA evidence may be

proposed by either party it is not a mandatory requirement. If it is not available a decision will be based on other evidence

of parentage supplied with no negative inference being drawn merely from the fact that an applicant does not wish to

undergo DNA testing. A positive DNA result will be accepted by the INIS as proof of natural parentage however this would

need to be assessed against the question of legal parentage. Advanced approval by INIS is required in respect of the

testing.

(v) In appendix B contained at p. 70 the first paragraph provides that in order to avoid child abduction it must be clearly

established that both parents consent to the movement of their child and in the instant type circumstances the consent

of the other parent (the non-applicant parent) must be obtained and furnished in support of the application for family

reunification.

4. The consent of the non-applicant parent was considered by Humphreys J. in Olakunori v. Minister for Justice and Equality [2016]

IEHC 473 being a judgment of 29th July, 2016. At para. 22 thereof one of the grounds for refusing the relevant visa was that the

applicant had provided neither the consent of the father in question nor a court order awarding her sole guardianship as a basis for

the visa application. The Court noted that the need for this documentation was clearly stated on the INIS website. Insofar as the

complaint that a court order was irrational the Court held that this submission was wholly without merit. At para. 28 the court

states:-

“28. The requirement by the Minister for a court order making clear that the consent of the father was

unnecessary, in the absence of such consent being produced positively, was neither unfair nor irrational. Indeed, it

was absolutely necessary. The mother’s failure to comply with that requirement was fatal to her application, and

therefore to the present judicial review.”

Impugned decision

5. The decision comprises six pages with various headings. Under these various headings the decision identifies issues surrounding the

authenticity of documents produced as well as contradictions and inconsistencies in information supplied. At p. 4 under the heading

“No clear link to reference have been shown” it is stated:-

“Because of the concern set out above and having reviewed the material submitted on appeal the appeals officer agrees

with the finding in the original decision that a clear link to the reference has not been shown.”

6. Thereafter there is a further heading called “Relationship history” and under this heading the visa officer was not satisfied that

there was evidence of an ongoing relationship demonstrated. The appeals officer remained satisfied that there was no evidence of a

sustained parental relationship.

7. Under the heading “Conclusion” it is stated:-

“Having considered all information submitted and all representations made the appeals officer is satisfied that this

application ought to be refused as a family link to V.A. has not been demonstrated and also because the uncertainty

regarding the identity of Mr. A’s father means that the visa officer cannot be satisfied with the parental travel consent

provided to date.”

8. Thereafter the appeals officer was satisfied that a refusal would not engage the rights under Article 8 of the European Convention

on Human Rights or under the Constitution.

Submissions

9. The applicants herein condemn the decision on the basis of its failure to engage in the constitutional and Article 8 rights and

further on the basis that there is no reference to the second named applicant’s tender of DNA evidence in conjunction with the

respondent. It is asserted that insofar as the decision incorporates a statement to the effect that before DNA testing would be

conducted it would be necessary to demonstrate with compelling evidence a sustained ongoing family relationship, it is asserted that

this was irrational, disproportionate and or ultra vires and or in breach of constitutional law.

10. The applicants further assert that even if proof of a blood relationship between the applicants was not dispositive of an

entitlement to a visa the decision should be condemned because the decision effectively conflated the blood relationship with a legal

relationship (as per the terminology of policy document) under the heading “No clear link to reference has been shown” therefore the

failure to deal with the offer by the second named applicant of DNA evidence in conjunction with the respondent contaminated the

findings in relation to legal parentage. Similarly under the heading of “Conclusion” the blood and legal relationship is again conflated

when it was indicated that the appeals officer was satisfied that the application ought to be refused as a family link has not been

demonstrated.

11. When it was indicated to the applicants that even if that portion of the decision (a) as to the family link between the applicant

and

(b) as to the constitutional and Article 8 considerations were argued successfully by the applicant to be contrary to constitutional

and/or natural justice and/or in breach of fair procedures and/or irrational and/or disproportionate nevertheless the second conclusion

of the relevant decision was not impugned and therefore would stand, (namely, that visa officer could not be satisfied with the

parental travel consent provided to date) which in and of itself would be sufficient stand alone ground to refuse the visa, the

applicants requested the Court to exercise its discretion to make declaratory orders as to the complaints herein before outlined with

respect to the decision relative to the DNA status and Article 8 and or constitutional rights status in a similar manner to that which

was undertaken by Cooke J. in A.B. v. R.A.T. & Ors. [2011] IEHC 412.

12. At para. 26 of that judgment the Court noted that it was not possible to quash the decision because of the definitive finding

where the validity of that finding was not before the Court. The Court expressed concern that on a future application the decision

may be influenced by the previous examination and the court considered that it was just and appropriate for it to exercise its

discretion to grant the applicant declaratory relief in order to dispel the implication that the final outcome was based on a

consideration that the exclusion clause of Article 1F of the Geneva Convention applied to the applicant.

Conclusion

13. In this matter it is clearly the case that even if the applicants were successful in respect of all grounds advanced to the court

nevertheless this would not result in a quashing of the decision impugned on the basis that there remained the valid stand alone

ground that parental consent had not been adequately demonstrated so that the decision would survive the instant attack by the

applicants.

14. With due deference to Cooke. J., having considered the matter, I do not feel it appropriate to make declaratory orders in respect

of issues which were not fully ventilated before the court – a status which arose because of the fact that it was clear that the

decision would survive whether applicants were entirely successful or not on the argument they presented to the Court or not.

15. In the circumstances the application for certiorari is refused.