High Court dismisses visa refusal appeal citing Art.41 does not grant immigration rights to non-EU nationals.

[2018] IEHC 646

THE HIGH COURT

2018 No. 268 JR

Between:

BIBI SHENAZ DOMUN, WAJIH SIDDIQI (A Minor Suing by his Mother and Next Friend BIBI SHENAZ DOMUN), IZHAAK SHAMS

SUL HACK MYRAM (A Minor Suing by his Mother and Next Friend BIBI SHENAZ DOMUN), AND SHEEHANE MYRAM (A Minor

Suing by her Mother and Next Friend BIBI SHENAZ DOMUN)

Applicants

– AND –

THE MINISTER FOR JUSTICE AND EQUALITY, ATTORNEY GENERAL AND IRELAND

Respondents

JUDGMENT of Mr Justice Max Barrett delivered on 19th November, 2018.

1. Ms Domun came to Ireland alone in 2009. She left two children in Mauritius in the care of her extended family. Save for holiday

visits, she has not lived with them since. Around September 2016, Ms Domun applied for visas for those children to enter Ireland. The

visas were refused in July 2017. Appeal was made. By letter of 09.01.2018, the Minister advised that this appeal was unsuccessful.

Various reasons were offered by the Minister for his decisions. The applicants seek an order of certiorari quashing the initial/appeal

decisions, an order of mandamus compelling the Minister to re-assess the appeal, a declaration that the decision-making process

violated Art.41 of Bunreacht na hÉireann, and a declaration that the refusal to grant visas and the manner in which those decisions

were made breach the rights of Ms Domun’s youngest child as an Irish/EU citizen.

2. Article 41. The point raised in respect of Art.41 is that the extent to which the Minister relied on (a) the Department of Justice’s

Policy Document on Non-EEA Family Reunification (December 2016) and (b) Ms Domun’s failure to meet the financial thresholds set

out therein, without regard to (i) her particular circumstances and (ii) the fact that being a single homemaker she is unable to seek

paid employment, breaches the State’s duties under Art.41.2 of the Bunreacht. Unfortunately, even if one accepts that this

contention is factually well-grounded, it must fail: there is nothing in Art.41.2 or related case-law which supports the proposition that

Art.41.2 can confer immigration rights on non-EU/EEA nationals.

3. Rigid and Inflexible Application of Policy Document. Ms Domun claims that her personal circumstances are such that she cannot

work outside the family home so as to earn an income that would surpass the financial thresholds identified in the Policy Document

and that there has been an inflexible application of same. Two points arise. (1) Any fair reading of the decisions shows that all manner

of factors were considered relevant to Ms Domun’s circumstances. There is no suggestion in the decision that the Minister set his

mind against Ms Domun solely because she is poor. However, the Minister is entitled to have regard to (and indicates in the Policy

Document, 5, that he will have regard to) cost issues presenting. This yields the contentious consequence that poor people will find it

harder to reunify families in Ireland than their wealthier counterparts. But that the Minister had regard to cost-issues in this case does

not taint his decision at law. (2) When it comes to the Policy Document, there is nothing on the facts of this application to support

the assertion that the Minister applied it rigorously/inflexibly. Every factor presented by Ms Domun was considered. There is nothing

to suggest that if she had come up with some factor not anticipated by the Policy Document that decision-makers would have given

that factor anything but a fair-minded consideration. There was no fettering of discretion in the creation of the Policy Document and

there was no fettering of discretion in the consideration of Ms Domun’s application, whether by reference to the Policy Document or

otherwise.

4. Article 8 Rights. Complaint is made that the Article 8 ECHR rights of the second-named applicant were considered in a generic or

generalised manner. This point was not raised on appeal and cannot now be raised. Had it fallen to be considered it would have been

rejected: contrary to what the applicants contend, there is ‘meaningful engagement’ by the decision-makers with the Art.8 ECHR

rights of the second-named applicant; the Art.8 ECHR rights were specifically considered, weighed and balanced, in a context where

the general sense of the Minister (though not his unvarying or close-minded sense), as identified in the Policy Document, at 56, is

that “seeking to bring to Ireland…all siblings [here half-siblings], on the basis of the citizenship of a single minor would seem to go

beyond what is reasonable, particularly if the State would be required to provide financial support for the family”.

5. Best Interests. The applicants complain that while the Minister stated himself to have considered the best interests of the second-

named applicant, he did not identify those best interests. But “save for exceptional circumstances” (and the court does not see such

circumstances here) “the Minister is not required to inquire into matters other than those…sent to him” (Oguekwe v. Minister for

Justice [2008] 3 IR 795, 822) i.e. there is no positive obligation on the Minister to identify the best interests of the second-named

applicant. The second-named applicant is in Ms Domun’s custody, she has made an application in which she identifies what she

considers are his best interests; it is not for the Minister to supplant her views in this regard. Neither, conversely, is there an

obligation on the Minister to give effect to what Ms Domun claims is in the best interests of the second-named applicant. The latter’s

best interests are, per the Policy Document, 37, “a key consideration”, not the sole consideration. There is nothing in the impugned

decisions to suggest that decision-makers did not attach due weight to the best interests of the second-named applicant, as

identified by his custodial parent, in reaching their decisions.

6. Dependency. It was argued at hearing that because the Policy Document, 36, refers to a person over 18 years of age being

“permitted to apply [for reunification] where he/she is dependant on the care of a parent sponsor” and then refers, at 37, to the

“best interests” of a child being “a key consideration” in cases involving a child (without reference to dependency), it follows that

there is no need to show dependency of a minor child. It seems to the court, with respect, that the applicants are mistaken in this

regard: the Policy Document, 39, states that “A minor child living with its parents will be automatically assumed to be their

dependant”; it follows as a matter of logic that a minor child not living with its parents will not automatically be assumed to be

dependant.

7. Fatal Flaw. There is a fatal flaw to the within application. Various of the reasons offered in the impugned decisions for those

decisions are unchallenged. The inexorable consequence of this fact is that the Minister’s decisions to refuse the visas must and will

stand, regardless of any view that the court has as to such other grounds as have been raised by the applicants. There may be

circumstances in which a decision-maker could offer good grounds for a decision but that decision might nonetheless fall, e.g., if the

decision-maker was guilty of corruption or partiality, but absolutely nothing of the sort presents or has even been alleged here.

Instead the court is confronted with two reasoned decisions, impartially rendered, which offer a variety of independent, stand-alone

reasons for refusing the visas, some of which reasons have never been challenged.

8. Replication. Some criticism has been levelled at the decision-makers because there was replication of text under the various

headings of their decisions. Decision-makers are not required to bring literary greatness to the drafting of decisions; it is inevitable

that in a decision which deals with overlapping points that there will be some replication of response; there is no obligation on

decision-makers to devise different ways of saying much the same thing.

9. For the reasons set out above, all of the reliefs sought in the within application are respectfully refused.