Friday, February 24, 2012

High Court finds in favour of Irish citizen married couple fighting for a right of residence in the State for their dependant parents

We are delighted (and relieved!) to announce the successful outcome in the case of O’Leary and Lemiere v The Minister for Justice. You may recall our previous blog posting on this case. 

This morning, Mr Justice Cooke delivered judgement approving our clients’ application to set aside the Minster for Justice’s decision to refuse to grant permission to reside for their dependant elderly parents.  He confirmed the Minister’s decision to refuse their application for permission to reside as a disproportionate decision not based on a fair and reasonable assessment on the facts of the case.

Mr Justice Cooke dismissed the State’s argument that the applicants’ case did not trigger the protections of Article 41 of the Constitution. The High Court confirmed that the applicants, as adult Irish citizens and their dependant elderly parents, did constitute a family within the meaning of Article 41 Constitution, and as such invoked the protections envisaged by that Article. He confirmed Mr Justice Hogan’s previous findings that these protections include the entitlement of the family to order its own internal life and affairs without interference from the State, unless such interference is objectively justified in the interests of the individual family members or necessary in the over riding public interest. 

For the purposes of assessing the rights deriving from Article 41, Mr Justice Cooke confirmed that what is important is the context of the family relationship, as opposed to how that relationship is defined. In other words, the reality of the family situation is to be assessed.

Having accepted the O’Learys and the Lemieres constituted a family within the meaning of Article 41 of the Constitution, Mr Justice Cooke proceeded to the “central issue ” of the case - whether the reasons given by the Minister to refuse the applicants permission to reside constituted a lawful exercise of the Minister’s discretion pursuant to Section 4 (7) of the Immigration Act 2004, or whether the decision was illegal in that it was unreasonable and disproportionate or inadequately explained.

On a thorough review of the submissions made in support of the application, and the Minister’s responses, Mr Justice Cooke concluded as follows;

“It is difficult to avoid the impression given by the cumulative effect of the reasons as stated, that the decision made was more concerned with finding and articulating grounds which would support a refusal rather that seeking to give an overall assessment of the merits of the application in a balances and objective manner.”

Mr Justice Cooke assessed individually the two principle grounds for refusal of the application – (1) that there is no express provision in Irish legislation for an Irish national to apply on behalf of a non EU national who is their dependant to join them in the State, and (2) that there was a lack of good faith by the applicants in their dealings with the Department.  In dismissing both grounds for refusal, Mr Justice Cooke confirmed that it is manifestly the case that the Minister has the power in his discretion to extend any permission to be in the State granted to a non national pursuant to Section 4 of the Immigration Act 2004. He also confirmed that it was the Court’s judgment that it was highly questionable that the motives attributed to the applicants in the decision were consistent with the relevant material, describing the O’Learys as open and candid in their efforts to find a way of having the grandparents to remain in Ireland.

For these reasons, Mr Justice Cooke found that the Minister’s decision must be quashed, as it was based on justifications erroneous in law.

Mr Justice Cooke then added some further comments of note in respect of the cental issue of dependency: he found that the Minister was incorrect to assess dependency only in respect of financial grounds, when dependency had been argued on a much broader context. Furthermore, he found that the Minister was incorrect to find that financial dependency did not exist, as the financial assistance went beyond what is extremely welcome but non-essential support. Mr Justice Cooke indicated that it was the judgement of the Court that the Minister had applied an unbalanced approach to isolate the financial aspect of dependency and find dependency only to be relevant in cases of outright destitution.

We believe that this case has established important new rights for Irish citizens pursuant to Article 41 of the Constitution. In particular, it has established that adult Irish citizens have rights to have their dependant and financially self sufficient (non EEA) family members reside with them in the State, and while these rights are not absolute, they are strong enough to place a weighty obligation on the State to objectively justify any infringement of those rights.

We wish to congratulate the O’Leary and Lemiere family on their successful outcome today.

Brophy Solicitors
24.02.12


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