We are working on many cases involving the ongoing fight of some Irish citizens to acquire a right of residence for their non EEA spouses. Some of these cases involve long stay visa applications for newly weds. Often they are refused on the basis that they did not have sufficient face to face meeting prior to their marriage. Frequently, this ground of refusal is relied on in respect of arranged marriages, where the Irish citizen and their spouse were not permitted to meet prior to their marriage. From our experience, if the couple arrange a number of holidays together post marriage, and evidence the genuine ongoing relationship, and there are no countervailing circumstances, the visas should be granted.
However, the cases where the refusal is based on an event prior to marriage cause more difficulty. A common example is the often-cited ground of refusal of the poor immigration history of the visa applicant. This is more difficult to deal with as the applicant cannot undo what has already been done.
We wish to highlight the recent High Court judgement Gory v The Minister for Justice and Equality, delivered by Mr Justice MacEochaidh on the 30th January 2014. The judgement is very helpful in reviewing the manner in which the Minster must balance the interests between the State and the Irish citizen in cases where the applicant may have a poor immigration history.
The case concerned Mr and Mrs Gory, a Nigerian and Irish citizen and married couple who sought to challenge the Minister’s decision to refuse their application to revoke the a deportation order previously issued against Mrs Gorry prior to their marriage. The revocation application was refused on the basis of Mrs Gory’s poor immigration history. The Minster had found that there were no insurmountable obstacles to Mr Gory moving to Nigeria to live with his wife.
Mr Justice MacEochaidh found that this was an incorrect test to apply. He referred to both Irish UK case law which had previously established that the “insurmountable obstacles” test is no longer an appropriate test to apply to family life assessments. He confirmed that the test now to be applied is the test of reasonableness – i.e. is it reasonable for the Irish citizen to leave this State in order to carry on his/her family life with his/her non EEA spouse.
Mr Justice MacEochaidh also reviewed the Article 41 case law in the area. He confirmed that it is clear from the jurisprudence that marriage between an Irish national and a non national may engage the right of residence which could only be denied for countervailing purposes. He confirmed that the Minister must balance the potentially competing interests in a proportionate and fair manner.
In summary he stated as follows ; “Having reviewed all of these decisions, it is my view that as Irish national married to a non Irish national has a constitutional right to reside in Ireland with that other person, subject to lawful regulation. The right is not absolute. The State is not obliged in every case to accept the country of residence chosen by such a couple. Though I believe such a prima facia right exists, not every set of circumstances will engage the right.”
Considering the case before him, Mr Justice MacEochaidh took into account the fact that the applicants had acknowledged there had been a breach of immigration law, and that there was no question of non immigration criminality or any disregard for the family or marital rights. He noted that they demonstrated commitment to their marriage, and that Mrs Gory had left the State in compliance with the deportation order. In these circumstances, Mr Justice MacEochaidh found the Minister’s decision to refuse to revoke the deportation order was unlawful, and directed that the decision be overturned.
We submit the deciding officer must therefore apply a presumption that the spouse of the Irish citizen in a genuine and subsisting relationship will be granted permission, unless countervailing circumstances should warrant otherwise, and no such exceptional circumstances exist. Further, poor immigration history alone will not be a sufficient countervailing circumstances to render a decision to refuse the non EEA spouse residence permission as proportionate or reasonable.