High Court dismisses claim that delayed Afghan visa processing breached constitutional equal treatment rights.

THE HIGH COURT

[2026] IEHC 219

Record No. 2025/15 JR

BETWEEN

SHAFI AFZALY

APPLICANT

AND

THE MINISTER FOR JUSTICE

RESPONDENT

JUDGMENT of Mr. Justice Barr delivered electronically on the 16th day of April 2026.

Introduction.

1. The applicant is an Afghani national. He was granted subsidiary protection in the State in 2018. The applicant is married with two young children. He has worked as a mechanic since 2019. He currently earns approximately €23,000 per annum, being €450 per week.

2. In these proceedings the applicant challenges the lawfulness of an appeal

decision of the respondent given on 6 December 2024 in which the respondent refused to admit three members of the applicant's family under a non-statutory scheme known as the Afghan Admission Programme (‘AAP’).

3. It was a condition of entry to the programme that the sponsor in Ireland should have sufficient resources to fund the travel expenses of the proposed beneficiaries; the accommodation expenses of the proposed beneficiaries; and the maintenance and subsistence expenses of the proposed beneficiaries until such time as they should be able to support themselves within the State.

4. The applicant's application was refused on grounds that he had not demonstrated that he had sufficient resources to provide for himself and his family and for the three beneficiaries such that they would not become a burden on the State for financial or other support.

5. The essence of the applicant's case is that when visas were initially granted under the programme, the respondent did so for sponsors in Ireland who had less financial means than the applicant. It is alleged that due to delay on the part of the respondent in processing his application, the respondent changed its approach in the interim, such that from in or about Spring 2024 onwards, it applied “stricter scrutiny” to the financial requirements of entry to the programme.

6. The applicant maintains that this change in approach effectively meant that he was treated differently to earlier applicants when it came to considering whether he had complied with the financial conditions for entry to the programme.

7. The applicant submits that in effect he had to face a higher threshold of scrutiny when it came to his financial resources than applicants whose applications had been considered earlier in time, and in particular, prior to Spring 2024. The applicant submits that this constituted a breach of his right to equal treatment pursuant to Article 40.1 of the Constitution.

8. The respondent submits that the same financial criteria for entry to the programme have applied since the inception of the programme.

9. The respondent admits that due to becoming aware in or about Spring 2024 that some beneficiaries under the scheme had become dependent on the State for support, contrary to what had been stated by their sponsors at the time of making the relevant applications for entry to the programme; the respondent decided that it was necessary to apply “stricter scrutiny” to the financial criterion when considering applications for entry to the AAP, so as to ensure that the applicant sponsors had sufficient financial resources such that those to whom visas might be granted under the programme would not be likely to become a financial burden on the State.

10. The respondent denies that the applicant has been treated unfairly, or in breach of his right to equal treatment under the Constitution.

11. The respondent states that as the applicant has not challenged the conditions for entry to the AAP; nor has he asserted that the impugned decision was unreasonable or irrational in the legal sense; nor has he asserted that he has sufficient resources to look after his family and the beneficiaries; there is no basis on which to set aside the impugned decision.

The Applicant's Background.

12. The applicant is currently 42 years of age, having been born in 1984. He went to school for three years in Afghanistan from the age of 7 to 10 years. In or about 1994, when he was 10 years old, he could not continue schooling due to the war that had broken out with Russian forces. He commenced working in a garage at that time. Over the years he learned how to work on cars and other vehicles as a mechanic.

13. In 2014, when the applicant was approximately 30 years of age, he fled from Afghanistan. He stated that he was obliged to do that because on one occasion a person who was well connected with the police came to the garage and demanded that he should do work on a particular vehicle. The applicant told him that he could not carry out the work as he was due to go to a wedding that day. However, the person insisted that he go to fix the vehicle. The applicant agreed and he closed the garage. However, instead of going to fix the car, he went home. Later that night, a fire broke out in his employer's garage. The employer reported this to the police and stated that the applicant had been the last person in the garage. The applicant states that he then went to the police and informed them that he had been forced to leave the garage by associates of the named individual. On account of this, he had come to the adverse attention of this powerful individual. He spent four months in detention. When released, he fled Afghanistan in 2014.

14. The applicant arrived in the State later in 2014. He applied for international protection. In 2018 he was refused refugee status, but was granted subsidiary protection.

15. On 28 June 2018, the applicant applied pursuant to the IRPP Humanitarian Admission Programme (IHAP 2) in respect of his mother, father, sister and brother. On

18 December 2018, this application was refused.

16. On 26 September 2018, the applicant married his wife in Pakistan. He now has two children.

17. On 17 April 2020 the applicant applied for a D type long stay visa in relation to his wife, his son and his brother. On 27 June 2020, the applicant applied for family reunification pursuant to s.56 of the International Protection Act 2015 in respect of his son and wife. This was refused in respect of his wife, as they had married after his international protection application had been made. Judicial review proceedings challenging this refusal were withdrawn following the determination of a test case on this issue by the Supreme Court. On 23 August 2021, the applications for D type visas were refused. The applicant submitted appeals initially in respect of his wife and son. On 17 August 2021, he appealed the refusal of a visa for his brother. On 23 August 2021, the applicant's wife and son were granted visas. The applicant has since had a second child, who was born in the State.

The Applicant's Application under the AAP.

18. Before summarising the applicant's application for entry to the AAP for his parents and sister, it is necessary to summarise briefly the terms of the AAP. On 28 September 2021, the Government approved the AAP. It was a non-statutory humanitarian scheme which was established to offer temporary residence in Ireland to people whose freedom or safety was at risk arising from the situation in Afghanistan after the takeover of power by the Taliban in August 2021.

19. Under the scheme, Afghani nationals who had obtained permission to reside in the State, could apply for visas to permit up to four members of their family to enter the State. One of the conditions for entry to the scheme was that the applicant sponsor had to have sufficient financial resources to support all successful beneficiaries from the date of their arrival in Ireland until they would be able to support themselves. This included the provision of their travel expenses; their accommodation needs; and their maintenance and support requirements when in the State until they were able to provide these for themselves.

20. It was announced by the Government that a total of 500 visas would be available for allocation under the scheme. The AAP opened for applications on 16 December 2021. The closing date was ultimately extended to 11 March 2022.

21. On 11 March 2022, the applicant made an application under the AAP in respect of his father (born 1946); his mother (born 1975); his sister (born 1993) and his brother (born 1998).

22. In his application, the applicant stated that he was employed by an Afghani friend of his, who owned a garage. He stated that at that time he was earning an annual salary of approximately €18,000. This had risen to €23,000 by the time of his appeal

decision in December 2024. The applicant was residing in a two-bedroom rented house in Lucan, County Dublin.

23. In his application form, the applicant furnished documentary evidence that his landlord was willing to permit his brother to reside in the house. He also furnished written evidence that his employer was prepared to allow the applicant's parents and sister to reside with him and his wife in their home.

24. In the application form, the applicant stated that he had only received schooling from the age of 7 years to 10 years. He stated that he was unable to read or write. He was unable to use a computer. He stated that his brother, in respect of whom an application for a visa had been made, was able to read and write and could use a computer. He had done some study in the area of mechanical engineering. The applicant stated that it was his hope that he and his brother would set up their own garage, with his brother looking after the administration and financial aspects of the business, while he would carry out the maintenance work on cars and other vehicles.

25. When the applicant did not receive any response to his application under the AAP, he instituted judicial review proceedings seeking an order of mandamus directing the Minister to give a decision in his application. Those proceedings were struck out on consent of the parties on 19 January 2024, based on an agreement by the respondent to issue a decision on the applicant's application within six weeks of that date. No decision was issued by the respondent by the deadline of 1 March 2024.

26. While the applicant's application for visas on behalf of his family members was awaiting decision by the Minister, the applicant's brother left Afghanistan. He is presumed to have drowned along with other migrants on or about 24 June 2024 while trying to reach Gran Canaria from Mauritania by boat.

27. When the applicant did not receive a decision from the Minister by the agreed deadline, he instituted a further set of judicial review proceedings seeking an order of mandamus. Those proceedings were filed on 7 May 2024, with leave being granted on

24 June 2024. Those proceedings became moot when the Minister issued the first instance decision on the applicant's application on 4 October 2024. That decision refused the applications for visas in respect of the three family members, being the applicant's parents and his sister.

28. On 11 October 2024, the applicant appealed the decision that had been given at first instance. In support of his appeal, the applicant had lodged submissions in which it was asserted that in the initial period during which applications for visas had been considered by the Minister, virtually all the applications had been approved. It was submitted that that had been done despite the fact that the financial circumstances of many of the applicants were similar, if not less favourable, to those of the applicant.

29. On 6 December 2024, the respondent gave his decision on the appeal. Having referred to the condition in the AAP in relation to having sufficient resources and having referred to the level of income stated by the applicant in his application form and in his submissions, and having referred to the submissions made on his behalf for the appeal; the following was the essential rationale of the decision given by the decision-maker: “All decisions under the AAP scheme are made on a case-by-case basis with careful consideration of the specific circumstances of each application. While previous decisions are taken into account, they do not set binding precedents, as each case must be assessed independently with reference to the terms of the programme. It has come to the Minister's attention that a significant number of AAP beneficiaries have become reliant on state supports after entering the State, contrary to the intended terms of the programme that sponsors would support beneficiaries until they are self-sufficient. To address this issue and ensure sustainability, it is necessary on an ongoing basis to assess whether sponsors are genuinely capable of supporting their proposed beneficiaries before approving applications. This approach is both reasonable and proportionate in light of these concerns. While earlier trends may have seen higher approval rates, evolving circumstances and evidence have necessitated stricter scrutiny to uphold the integrity of the programme. These measures are applied consistently and fairly to all applicants.”

30. It is this appeal decision that is the impugned decision in these proceedings. The essence of the applicant’s case in this regard was summarised in the following way at para. 33 of the applicant’s written submissions:

“The respondent, in breach of Article 40.1 of the Constitution failed to treat the applicant in a manner equal to earlier applicants to the Afghan Admission Programme. It is submitted that the respondent has unlawfully discriminated against the applicant by applying a different and/or stricter scrutiny.”

The Law.

31. Before coming to a discussion of the issues that arise for consideration in these proceedings, it will be helpful to set out a brief summary of the law that is relevant to the issues that arise for determination. The legal characteristics of a non-statutory ex gratia scheme were considered by the Supreme Court in Bode v Minister for Justice Equality & Law Reform [2008] 3 IR 663. Delivering the judgment of the court, Denham

J. (as she then was) noted that one of the fundamental powers of the State was that it had the power to control the entry, the residency in and the exit, of foreign nationals. That power was an aspect of the executive power to protect the integrity of the State.

32. The judgment noted that the State could also exercise its powers so as to take action in a particular situation where it had been determined that the common good was served by giving benefits of residency to a category of foreign nationals as a gift, in effect. She stated that the inherent power of the State included the power to establish ex gratia schemes of that nature. Such an arrangement was distinct from circumstances where legal rights of individuals may fall to be considered and determined. The judge went on to note that the scheme under consideration in that case, being a scheme known as the IBC 05 scheme, enabled a fast executive decision to be made giving a benefit to a large number of people. However, it was pointed out that a negative decision under the IBC 05 scheme did not affect any substantive claim for permission to remain in the State that a person may have. In other words, an adverse decision to an applicant under the scheme left the applicant in no worse position than he or she was prior to the application, as no decision had been made on any substantive rights (see paras. 60 – 66).

33. One of the conditions for entry to the scheme under consideration in that case, was that the applicant had to prove that they had been continuously resident in the State since the birth of their Irish born child. Denham J. held that the scheme was an exercise of the executive power by the Minister. It did not purport to address, nor did it address, constitutional or conventional rights. She held that it was a scheme with clear criteria. On the face of the documents before her, the criteria were applied to the second applicant and he had failed to meet those criteria. In the case before the court, the High Court had held that the applicant had failed to meet the relevant criteria of the scheme. The Supreme Court agreed with that finding. It held that the consequence of that was that the second applicant’s application did not therefore come within the terms of the IBC 05 scheme. Thus, his application had to fail.

34. The decision in Bode was affirmed by the Supreme Court in Rana & Ali v Minister for Justice [2024] IESC 46 where the court affirmed that an adverse decision under the relevant scheme did not involve the determination of such rights by the Minister and did not leave an applicant any worse off than they had been. The Minister was therefore entitled to apply the terms of the scheme and to refuse applicants who did not come within it. The court stated as follows at para. 84: “It is clear that the special scheme now under consideration was an ex gratia, executive scheme that comes within the terms of this analysis. The court is therefore construing the terms of the scheme and not a statute. Any rights that individuals might have under statute, the Constitution or the ECHR (or, indeed, under a different scheme) remain unaffected by an adverse decision.”

35. The Bode decision has also been applied in the High Court. In AKR v Minister for Justice & Equality [2022] IEHC 325, where the applicant challenged the respondent’s requirement that an applicant had to submit financial or other documentation to establish his continuous presence in the state for a specified period in order to qualify under the scheme. Bolger J. held that the applicant’s submission verged on asking the court to engage in what the scheme should have been, rather than engaging with the process by which the applicant’s application had been determined.

36. The court held that the scheme was an administrative scheme by which the respondent had decided to confer a benefit on certain undocumented migrants who would not otherwise have had the right to apply for residency. It was held that the scheme did not engage any constitutional, convention, or EU fundamental rights of an applicant. This meant that the Minister had more scope to determine what would or would not be required of an applicant. The court went on to state: “In effect it is the respondent’s scheme and it is up to her to determine how an applicant will be deemed to qualify subject of course to the respondent acting lawfully in making that determination.” (see paras 16 & 17).

37. In EL v Minister for Justice [2024] IEHC 647, O’Regan J. held that an applicant could not make an argument that the Minister could properly apply the scheme by disapplying a condition for entry to the scheme itself (see paragraph 9.1.4).

38. Similarly, in VM v Minister for Justice [2025] IEHC 574, it was recognised that the Regularisation of Longterm Undocumented Migrants Scheme, being a nonstatutory scheme, did not engage the legal rights of the parties, but merely conferred a gift or benefit on those people deemed eligible and who had satisfied the required criteria (see para. 49). The court went on to hold that the applicant had not demonstrated that she had met the criteria for inclusion in the scheme (see para 77).

39. Also of relevance to the issues that arise for determination in this case is the law on the right to equal treatment as guaranteed in Article 40.1 of the Constitution. This was considered by the Supreme Court in Donnelly v Minister for Social Protection [2023] 2 IR 415. There, the Supreme Court was considering whether the provisions of a statute breached the applicant's rights to equal treatment under the Constitution. Having reviewed the relevant law in relation to this constitutional right, O’Malley J, delivering the judgment of the court, set down the following principles at para. 191:

“ [191] The authorities do demonstrate support for the following propositions:

(i) Article 40.1 provides protection against discrimination that is based on arbitrary, capricious or irrational considerations.

(ii) The burden of proof rests upon the party challenging the constitutionality of a law by reference to Article 40.1.

(iii) In assessing whether or not a plaintiff has discharged that burden, the court will have regard to the presumption of constitutionality.

(iv) The court will also have regard to the constitutional separation of powers, and will in particular accord deference to the Oireachtas in relation to legislation dealing with matters of social, fiscal and moral policy.

(v) Where the discrimination is based upon matters that can be said to be intrinsic to the human sense of self, or where it particularly affects members of a group that is vulnerable to prejudice and stereotyping, the court will assess the legislation with particularly close scrutiny. Conversely, where there is no such impact, a lesser level of examination is required.

(vi) The objectives of a legislative measure, and its rationality (or irrationality) and justification (or lack of justification) may in some cases be apparent on its face. Conversely, in other cases it may be necessary to adduce evidence in support of a party's case.”

40. The court went on to state that when looking at a classification that is provided for by statute, the statutory classification must be for a legitimate legislative purpose; it will not be legitimate if it is arbitrary, capricious or irrational. Further, the classification must be relevant to the legislative purpose, and it will not be relevant if it is incapable of supporting that purpose. The test set down in the Donnelly case, was applied by the Supreme Court in O’Meara v Minister for Social Protection [2024] 1 ILRM 437 at para. 25.

41. The issue of delay in considering an application which may lead to a difference in treatment between similar applicants, was considered by the Supreme Court in NS v Minister for Justice [2025] IESC 48, where the applicant argued that she had been treated unfairly because due to delay on the part of the respondent in considering her application, her child had “aged out” and had thereby become ineligible for inclusion in the scheme. The argument put forward on behalf of the applicant in that case, was very similar to the argument made on behalf of the applicant in the present case.

42. In the NS case, the applicant argued that due to delay on the part of the respondent in considering her application, her child had attained the age of 18 years and had therefore “aged out” and become ineligible under the scheme. The applicant argued that this meant that she was treated differently to other applicants who had applied when their children were under 18 years of age and who had been fortunate enough to obtain a decision before their children attained their majority. The essence of the court’s

decision was stated in the following way at para. 71: “… The central question here is whether the time taken in processing an application gives rise to such inequality of treatment as to amount to a breach of Article 40.1 of the Constitution. I cannot see how this could be the case. The time taken to process any application for international protection will vary from case to case. That is inevitable, given the different facts and circumstances of each individual applicant. In the case of minor children, some will age out sooner than others. For example, a child who was 17 years of age and nine months will inevitably age out before a decision on an application for international protection is made. A child who was 13 years of age at the time when the application is made will not "age out" unless there is some form of egregious delay on the part of the authorities in processing the application for international protection.”

43. Finally, in argument at the bar, counsel on behalf of the applicant relied on the

decision in PPA v The Refugee Appeals Tribunal [2007] 4 IR 94. In that case, the applicant had been refused access to previous decisions of the RAT for the purpose of preparing his appeal to the Tribunal. It was held that a refusal of access to these decisions constituted a breach of his right to fair procedures. This was because such authorities were available and would be relevant in relation to showing consistency of decisions. The court held that although members of the Tribunal were not bound by previous decisions of the Tribunal, consistency of decisions based on the same objective facts might, in appropriate circumstances, be a significant element in ensuring that a

decision was objectively fair rather than arbitrary. The court further held that as the presenting officer had access to previous decisions of the RAT, the unfairness was compounded by the fact that the applicant did not have access to such authorities; thereby leading to a substantial inequality of arms when presenting the appeal before the RAT.

Discussion and Conclusions.

44. The first issue which the court must decide is whether the applicant has established on the balance of probabilities that the respondent in fact applied a different threshold to the financial condition for admission to the programme prior to Spring 2024.

45. In support of his submission that the respondent had applied a more lenient standard to the financial conditions when considering applications before 2024, the affidavit sworn by the applicant’s solicitor on 30 January 2025 set out details of other clients who he maintained had received visas but had had less resources than the applicant.

46. The applicant’s solicitor gave details of several applicants who had received visas for members of their families. He stated that in the case of one applicant, ZD, her AAP application was granted even though she was not earning an income. He stated that no documents had been submitted in relation to her financial circumstances. On her behalf, her solicitors had submitted employment summaries for the years 2019 to 2022 in respect of her husband. These had shown a modest income of over €7,000 in 2019 and 2020 and of just over €9,000 in 2021 and 2022, from his work as a kitchen porter. A letter from the Department of Social Protection had also been submitted which confirmed that her husband had received over €71,000 from March 2018 to February 2022.

47. The applicant’s solicitor stated that another applicant, ZG, had been successful in his application under the AAP even though he did not submit any real evidence of financial means. He stated that another applicant, LH, had been granted a visa despite the fact that he had submitted evidence of having earned just €8,000 in 2020; €13,800 in 2021 and that he was on a minimum wage contract since April 2021.

48. Finally, the solicitor gave details in relation to the application made by another client, SMA, whose application had been granted even though she did not submit any evidence of her own finances. She had submitted evidence of her husband's income only. He had worked as a taxi driver. He earned €11,920 in 2018; €12,163 in 2019; €14,722 in 2020; and €17,627 in 2021. The applicant’s solicitor exhibited redacted copies of the above decisions.

49. A replying affidavit was sworn on behalf of the respondent by Ms. Barbara McKelvey, an assistant principal officer in the Domestic Residence and Permissions Unit of the Department of Justice. In her second affidavit sworn on 26 June 2025, she objected to the content of the affidavit sworn by the applicant’s solicitor on the basis that the averments therein were generalised and did not provide a complete and objective overview of the relevant applications.

50. Ms. McKelvey stated that each of the decisions referred to in the affidavit sworn by the applicant’s solicitor was made having regard to all the evidence, submissions, and facts before the relevant decision-maker; not merely to the brief facts and circumstances which the applicant’s solicitor had put forward.

51. She stated that some of the details given in relation to the various clients had been misleading and incorrect. She stated that in the ZD case, a distinguishing feature of that application was that the applicant's husband and the applicant (who had been authorised to join her husband in the State pursuant to s.56 of the International Protection Act 2015) both held Stamp 4 permissions, which entitled them to work in the State. She stated that the position of ZD and her family was different to the circumstances in the present case, in which the applicant's wife had been permitted to join the applicant pursuant to a D visa. She had been granted a Stamp 3 permission, which did not permit employment or entitlement to social welfare, thereby inferring a greater degree of existing financial dependence on the applicant.

52. Ms. McKelvey stated that a further differentiating factor was that ZD had applied under the programme for permission for two beneficiaries only, whereas the applicant in the present case had applied in respect of three beneficiaries (having reduced from the four originally sought).

53. In relation to the ZG case, Ms. McKelvey stated that it was not comparable to the present case. She noted that the applicant’s solicitor had not alleged that the case was comparable to the present case. He had merely stated that the application had been granted even though ZG had not submitted any real evidence of financial means. Ms. McKelvey stated that that was not correct. Evidence as to the applicant's income, specifically a letter from Revenue and payslips, had been provided after the application had been submitted. In addition, the sponsor in ZG had no other family members in the State whose entry had been authorised on the basis of dependency upon him.

54. In relation to LH, it was stated that the application form submitted on behalf of the applicant had stated that the applicant's “gross income” was €20,000 per annum. At the time of that application, the applicant therein had no existing dependants in the State (although an application was pending but was undetermined under s.56 of the International Protection Act 2015 for his two parents and a minor brother). Furthermore, the application in that case was in respect of two (not three)

proposed beneficiaries. Both proposed beneficiaries in that case were of working age and had produced evidence of educational qualifications.

55. Finally, in relation to SMA, the applicant and her husband in that case were Irish citizens and were entitled to work in the State and therefore had less financial dependency on each other. Furthermore, in that case there was no evidence that the proposed beneficiaries had any additional needs. Unfortunately, that was not the situation in the present case, where the applicant's father was elderly and was disabled. He was already reliant on two of the proposed beneficiaries.

56. Ms. McKelvey continued by stating that in all four of the cases referred to by the applicant’s solicitor there were particular and compelling humanitarian considerations arising. She stated that the weight attached to humanitarian considerations was a matter for the respective decision-makers. Aside from the fact that the cases all arose on their own distinct facts and the evidence placed before the respondent, the fact that particular and compelling humanitarian considerations also arose in those cases rendered the comparisons and the exercise carried out by the applicant’s solicitor, entirely inappropriate.

57. The court accepts the objections made by Ms. McKelvey on behalf of the respondent. The court accepts her evidence that applications under the AAP are considered by the respondent under a range of headings. One cannot cherry pick selected details from a handful of cases in support of a proposition that the Minister applied a lower financial threshold when considering applications at an earlier time.

58. I accept the evidence given on behalf of the respondent that each application was decided on its own facts. This would have included a consideration of the position of each applicant sponsor in terms of his/her current employment, and particularly their current earnings, along with their existing financial commitments in the State, and what accommodation would be available to the sponsor to house the beneficiaries and his/her existing family.

59. Assessment of the application would also have involved an assessment of the beneficiaries in terms of the number, ages, fluency in English (if any) and qualifications (if any) and employment prospects of the beneficiaries, and an assessment of the level of risk of persecution or harm that they faced in Afghanistan.

60. Given such a wide-ranging assessment, one cannot set out selected details of the alleged financial position of a small number of applicants, as evidence that the Minister applied a less exacting financial standard at any given time. One would have to look at the financial details in the context of the entire application in each case.

61. I find that the applicant has not established on the balance of probabilities that the Minister generally adopted a lower financial threshold when considering earlier applications under the scheme.

62. However, the respondent has admitted that it “took greater care” to ensure that the programme’s criteria were met after Spring 2024. This was described in the following way by Ms. McKelvey at paras. 19–22 and 25 of her affidavit sworn on 22 May 2025: “19. I say that in or around Spring 2024, it came to the respondent's attention that a significant number of persons who are admitted under the programme on the basis that they were in a position to support themselves and their beneficiaries independently had in fact become reliant on state supports, including state-supported accommodation and social welfare. Further, in some instances, beneficiaries under the programme applied for international protection when they arrived in the State and on that basis applied to access state accommodation.

20. I say that it is contrary to the actual terms and conditions of, and the intention behind, the programme that beneficiaries would become reliant upon state financial supports.

21. In light of this development, the respondent thereafter took greater care to ensure that the programme’s criteria were genuinely being met and complied with. The exercise was one of remaining faithful to the programme's criteria and properly applying those criteria.

22. I say that it is not the case that all applications prior to Spring 2024 were granted. All cases were reviewed on a case-by-case basis and having regard to all of the features, and facts and circumstances of the case, and the evidence put before the respondent.

…

25. I say that, insofar as the decision impugned in these proceedings referred to ‘stricter scrutiny’, this simply meant that, in light of the experience referenced above, decisions taken in respect of the programme involved a more careful analysis of the question whether an applicant met the programme’s financial criteria.”

63. The applicant complains that insofar as the respondent applied “stricter scrutiny” to the financial condition when assessing his application under the AAP, it breached his right to equal treatment in so doing. I do not accept that submission as being well-founded.

64. The case law on Article 40.1 of the Constitution as set down in the Donnelly

decision and as applied in subsequent cases, makes it clear that in relation to statutory schemes which create substantive rights for people, the Oireachtas may treat people differently as long as the difference in treatment is for a legitimate purpose and is not based on criteria that are arbitrary, capricious or irrational.

65. In relation to non-statutory schemes, it was set down in the Bode case that such schemes being purely ex-gratia do not give rise to rights that are enforceable at law. In the Bode case and in subsequent cases it was clearly stated that when setting up an exgratia non-statutory scheme, the Minister was entitled to impose such conditions as he and the Government thought fit for admission to such a scheme. The fact that a person may be rejected for entry onto the scheme or programme, did not affect any of their substantive rights either at common law, or under the Constitution, or under the European Convention on Human Rights.

66. I take that to mean that if the Government decides to establish an ex-gratia scheme to benefit a particular class of beneficiary, others cannot seek to be admitted to the scheme if they do not meet the qualifying criteria, because they have no right as such to be made beneficiaries of the scheme. Nor can they complain about the conditions imposed, because their substantive rights at law, whatever they were before the inception of the non-statutory scheme, were not affected by the existence of the scheme.

67. That does not mean that a person who ostensibly comes within the class of persons who would benefit under the non-statutory scheme has no rights at all. I am satisfied that if having set up a scheme, it was administered by the Minister in a way that was arbitrary, capricious or irrational among those who were otherwise eligible under the scheme; they would have a right of action. In other words, when administering the terms of the scheme itself, the Minister must act fairly and in accordance with the terms of the scheme.

68. The object of the AAP was to provide a response to the humanitarian crisis that arose upon the return to power of the Taliban in Afghanistan in August 2021. To that end, the Government introduced the AAP to enable Afghani nationals lawfully residing in the State to apply to bring to Ireland up to four members of their family. Criteria were set down to regulate who could make such applications. The applicant does not challenge the lawfulness of these criteria.

69. One criterion was that the applicant sponsor should have sufficient resources to fund or provide for the travel to Ireland of the proposed beneficiaries; the accommodation needs of the beneficiaries; and be able to maintain them until they would be in a position to support themselves. That was made abundantly clear in the AAP and in the explanatory documentation that accompanied it.

70. I accept the evidence on behalf of the Minister that he became aware in the Spring of 2024 that people who had been admitted under the programme had become dependent on state supports, which was not supposed to have happened. I hold that in these circumstances the Minister was entitled to instruct his staff that when they were considering such applications, that in the light of this experience, they were to pay greater attention to the financial conditions that applied to entry to the scheme.

71. The Minister was not introducing a new criterion for entry to the scheme. He was merely ensuring that the criterion which had existed all along, was complied with in a realistic sense. That was entirely reasonable and appropriate in the circumstances. I am satisfied that applying “stricter scrutiny” to this criterion, was lawful. I hold that in so doing, the Minister did not act arbitrarily, capriciously or irrationally.

72. The applicant in the present case does not allege that he can maintain the three beneficiaries whom he seeks to bring into the State. He is 42 years of age. He is married with two young children. On his own admission, he cannot read or write. He went to school from the age of 7 years to 10 years. He cannot use a computer. While not expressly stated, one has to assume that because he cannot read or write, he cannot speak English. Nor is there any evidence that he has any qualification as a mechanic.

73. In these circumstances, anyone considering his application in a fair and reasonable manner, would have to hold that were he to lose his current job in a garage owned by another Afghani national, his chances of getting alternative employment on the open market would be extremely low, as he would be competing against qualified mechanics, who can read and write.

74. Given his admitted level of earnings, and the limit on the number of occupants who can reside in his current rented dwelling, being a two bedroomed house, he will always require additional accommodation to house his parents.

75. In his application form it was stated that this would be provided by his friend and employer in his house. However, there would be no security to the provision of such accommodation. It would last only for as long as the applicant's friend was willing to have the applicant's parents living in his home.

76. The applicant’s stated earnings are €450 per week. It is not realistic to suggest that the applicant could pay rent on his own house and provide food and other necessaries for a total of seven people on that income.

77. In addition, the applicant's father is of advanced years and is in ill health. He relies on the applicant’s mother for care. The applicant's sister is in her early 30s. It is not clear what education she has received. It is not stated that she holds any qualifications. While it was stated in the application form that it was hoped that if allowed entry to the State, she would obtain employment as a hairdresser or cashier, there is no factual basis provided for this aspiration.

78. In these circumstances, any reasonable decision-maker would have to regard the prospects of the beneficiaries, and in particular, of the applicant's parents, being able to provide for themselves within the State, as being unlikely.

79. Taking all the circumstances into consideration, the applicant cannot complain about the decision that was reached at first instance, or on appeal in this case. The financial criterion for admission to the AAP was present from the start. Unfortunately, there was no realistic case that could be made that the applicant could satisfy this criterion. He was never eligible for admission to the programme.

80. In argument at the bar, it was submitted on behalf of the applicant that there had been an extraordinary delay on the part of the respondent in giving its decision on the applicant's application. That had only been done after the applicant had been obliged to institute two separate sets of proceedings seeking an order of mandamus directing the Minister to give a decision on his application for admission to the programme. The applicant relied on the decision in the NS case, as support for the proposition that where there had been a protracted delay on the part of the respondent in reaching a decision, that could give rise to a remedy where it transpired that the applicant had become ineligible for the scheme due to events that occurred during that period of delay. In the NS case the relevant fact was that her child had “aged out” in the period during which the respondent had delayed in issuing its decision on her family reunification application.

81. I am not satisfied that the NS case and the existence of delay in this case is sufficient to entitle the applicant to the reliefs that he seeks. Firstly, while there was undoubtedly considerable delay on the part of the respondent in reaching a decision on the application, one has to have regard to two facts: first, the applicant delayed until the closing date for applications before submitting his application. Secondly, as deposed to by Ms. McKelvey, the total number of applications greatly exceeded the permissible number of visas. This meant that at the closing of the scheme, there must have been a very considerable backlog of applications that had to be considered in some considerable detail. The nature of the matters that would have to be considered in each application have been set out earlier in the judgment.

82. Furthermore, this case is not the same as the NS case. In that case, during the period of delay an event happened which rendered the applicant ineligible for family reunification; namely the fact that her child attained 18 years. In this case, nothing happened that caused the applicant's application to become ineligible. The criterion in relation to financial resources was the same from the inception of the scheme. The applicant’s resources did not decrease during the period of delay. In fact, the position was to the contrary, because when he originally applied his income was of the order of €18,000 per annum, whereas by the time of the appeal it had increased to €23,000 per annum. In these circumstances, I am not satisfied that the case can be made that the delay was of such an egregious nature, or that the effects of it adversely affected consideration of the applicant's case, such that he can argue that his right to equal treatment under the Constitution has been breached.

83. Finally, an argument was made that the decision given on the appeal was not sufficiently reasoned. I am not satisfied that this argument has been made out. The appeal decision covered the essence of the case and made it abundantly clear to the applicant that his application was being refused because he had not satisfied the

decision-maker that he had sufficient resources to cater for the accommodation and maintenance and other requirements of the beneficiaries from the income that he had in the event that visas were granted to the three beneficiaries. There is no lack of reasoning in the decision.

84. For the reasons set out herein, the court refuses the reliefs sought by the applicant in his notice of motion filed on 11 March 2025, and in his statement of grounds.

Proposed Final Order.

85. It is proposed that the final order should be to refuse the reliefs sought by the applicant in his notice of motion and in his statement of grounds.

86. As this judgment has been delivered electronically the parties shall have two weeks within which to furnish brief written submissions of not more than 1000 words on the terms of the final order and on costs and on any other matters that may arise.

87. The matter shall be listed for mention at 10.30 hours on 5 May 2026 for the purpose of making final orders.