We are currently working on many applications on behalf of our clients to be joined in the State by their elderly dependant non EEA parent/s. The cases involve general Long Stay Visa applications, and sometimes Change of Status applications while the parent is already in the State.
This is an area now governed by the Minister’s “Policy Document on NON EEA Family Reunification” published in December 2013. The guidelines focus on the financial responsibility for the subject of the application. The matter of whether the subject is dependant or not is left to the sponsoring family member to prove. No definition of dependency is provided. The guidelines indicate that the onus is on the sponsoring family member to show that there is no viable alternative option other than the dependant parent residing in Ireland. The specific financial thresholds referred to in the guidelines include evidencing that the sponsoring family member is earning a minimum of €60,000/ €75,000 (net) for the three years preceding the application (depending on whether one or two parents are the subjects of the application).
The high financial thresholds will most likely act as a barrier to many applications such as this, if applied very stringently. However, we highlight that the policy guidelines are subject to the parameters of the law. In general, the law requires that each application is assessed on it’s individual merits, and a fair and reasonable outcome is reached, appropriate and proportionate to the circumstances at hand.
We have limited specific law in this area, other than the significant judgement in the case of Mr Justice Cooke in the case of O'Leary v. Minister for Justice [2012] IEHC 80 (High Court, Cooke J, 24 February 2012). Mr Justice Cooke gave weight to the moral institution of the family, as protected by Article 41 of the Constitution, and confirmed that dependant parents of an adult child remain members of the family unit within the meaning of Article 41. He referred to right to rely on Article 41 when seeking State intervention to discharge a “moral obligation” towards non national family members in need of support and care.
In terms of the lawfulness of any interference by the State in family life, Mr Justice Cooke stated as follows;
“The core value enshrined in Article 41 is 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 individual members of the family or necessary in the overriding public interest.”
Mr Justice Cooke emphasized in his judgement that it would be an unbalanced approach for the Minister to isolate an analysis of dependency to purely financial aspects. He also confirmed the definition provided by Mr Justice Hogan in the judgement granting leave, that while dependency must go beyond “welcome” support, it is not necessary that the receiver of support be in a situation of destitution.
We would submit that in cases where a legitimate relationship of dependency and financial self sufficiency exists, and there are no exceptional circumstances to warrant a lawful refusal, Mr Justice Cooke’s judgement in the O’Leary case gives much scope for applicants to argue their case outside the strict financial thresholds of Minister’s guidelines.
Karen Berkeley
