Sufficient Attention not given to Consitutional Rights of Applicants in Refusal of Long Stay Visa Application for Spouse of an Irish National

Alison Ford and David Nwoke v The Minister for Justice and Equality

We bring to your attention the recent judgement of Mr Justice Eager of the High Court, dated 19th November 2015, which sheds light on the current position of the rights of Irish citizens to have their spouse reside in the State with them, in light of the current INIS policy on financial requirements.

The facts of the case involve Ms Ford’s application for a long stay visa for her husband Mr Nwoke to join her and permanently reside in the State. Ms Ford is an Irish citizen residing in the State with her three children, two of whom are minors. Mr Nwoke is a Nigerian citizen residing in Nigeria. Ms Ford is married to Mr Nwoke.

Ms Ford was introduced to Mr Nwoke by a mutual friend. Ms Ford and Mr Nwoke began communicating online in 2010, and met in London in January 2011. Ms Ford and Mr Nwoke continued their regular online communication after meeting, and became very committed to each other. In 2013 Ms Ford travelled to Nigeria in order to marry Mr Nwoke. After the marriage, the couple proceeded to make an application for a long stay visa in order that Mr Nwoke could join his wife and reside permanently in the State with her and her children.

The application was refused due to the cost to public funds and public resources. The refusal noted that Ms Forde had not provided sufficient financial evidence for the three years preceding the application. Ms Ford was in receipt of lone parent support.

The applicants submitted an appeal of the decision containing a personal letter from Ms Ford explaining to the visa officer in detail the effects of the refusal, her inability to relocate to Nigeria as was suggested in the visa officer’s refusal, and proof that she and the children maintained continuous communication with Mr Nwoke despite their distance.

Mr. Justice Eager in his consideration of the facts before him referenced the decisions in the cases of Gorry X.A (a minor) & Ors v EA and PA; PokShum v Ireland, and Osheku v Ireland.  The court in its decision noted that the appeals officer relied on the applicant’s right to respect of family life under Article 8 of the European Convention of Human Rights and not under Article 41 of the Constitution. The Court held that consideration under Article 8 does not preclude consideration of the facts under Article 41. The Court made reference to Section 2 of the European Convention on Human Rights Act 2003 as follows:

“In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Conventions provision .”

Mr Justice Eager stated in his decision;

“in this case the appeals officer did not pay sufficient attention to, or consider appropriately Article 41 of the Constitution”.

The Court also held that no consideration or weight was given to the personal letter of Ms Ford or the proofs of continuous communication and modern social media as a means of contact in general.

The Court granted an order of certiorari quashing the decision of the respondent to refuse a visa to Mr Nwoke and that the application be reconsidered by the Minister for Justice.

This is a welcome and helpful judgement to consider and rely on in many similar applications we are currently working on for our clients.

Anna Butler

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