Thursday, August 7, 2014

VISIT VISAS – DETAILED EXPLANATIONS FOR REFUSALS REQUIRED

We have recently obtained leave to bring Judicial Review proceedings on behalf of client who has been refused a visit visa for his mother and brother to visit him on a short term basis to attend a family event. The applications were refused on a numerous grounds including their possible failure to abide by the terms and conditions of the visa, and possible risks of financial burden on the State. The visa applicants have a clear immigration history and had pledged to abiding the terms and conditions of their visas. Our client has sufficient funds to support them for the stay. The visa refusals, which have the most serious consequences for the our client and his family, were based upon an un-founded suspicion as to the true motivation as to why they were travelling to Ireland.

Also it was noteworthy that our same client had obtained a visit visa the year previously for his mother in law, in exactly the same circumstances. Why was his mother’s case treated differently?

There was also doubts at to the extent of the consideration of the appeal given that the decision issued on the same day as the appeal submissions were received. 

We challenged the decision before the High Court on the basis that the decision to refuse the visit visas was unreasonable, arbitrary and disproportionate. The High Court granted leave for our client to bring Judicial Review proceedings against the Minister without difficulty. 

On the 30th July 2014, Mr Justice McDermott of the High Court delivered a judgement in a case that raised similar issues in respect of the quality of decision making in respect of visit visas. The case, Razzaq and Mohammed v The Minister of Justice, concerned a challenge to the Minister’s decision to refuse the parents of an Irish citizen a visa to come to Ireland for a four week holiday. The Applicants in questions comprised of a retired pensioner and a fulltime teacher in Baghdad, Iraq, whose son is a naturalised Irish citizen, living in Ireland with his wife and four children. 

Following the initial refusal of their application the clients submitted a substantial appeal letter addressing the concerns raised in the refusal; namely incomplete financial information, insufficient identification document and an insufficient obligation to return home being the main grounds of refusal. The appeal was once more refused on the grounds of not demonstrating a sufficient obligation to return home once their visa had expired.

Leave to apply for judicial review was granted in December of 2013 on the grounds that there was “no reasonable, rationale, lawful or evidential basis” for the respondent’s decision and that the decision was void for uncertainty due to the lack of published guidelines for the criteria applied in considering a visa.

On the bringing of the judicial review, it was held that the decision was not void for uncertainty as the respondent had clear provided a reason for the refusal that they were not satisfied the applicants would return home. However, the matters of whether the reasons for the refusal were adequately furnished and whether the decision was based on reasonable grounds were decided differently. The respondent contended that there was no obligation to elaborate on the reasons for refusal once a reason had been provide. 

In coming to a decision the court followed the reasoning of Henchy J in The State (Keegan) v. The Stardust Compensation Tribunal [1986] IR 642, that “in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common-sense”. The judge identified shortness of the reasoning. While stressing that the court was not condemning the use of short reasoning, it also stressed that “the reasons given for a particular decision must be clear and cogent”. It was felt that in order for fair procedures to be upheld, a more detailed explanation for refusal was needed.

In finding the decision of the respondent to be fundamentally flawed, the court granted an order of certiorari of the appeal decision.

1 comment:

  1. Hi. We have similar case: refusal of visit visa for mother. We would like to know what does mean the decision the Court made? Were the parents finally granted permission to visit Ireland? Thanks in advance.

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