We are working on a number of cases where the Visa Office has relied on a “General Policy” to refuse our clients' family members a right of entry and residence to the State. The policy has been described to one of our clients as follows;
“It is not the general policy of the Department of Justice and Law Reform to allow extended family members to automatically migrate on a long term basis to Ireland”
Thus, a blanket policy appears to be in place to the effect that a very large number of potential applicants could be refused. However, this policy was not made available to the public domain.
We raise the questions of who constitutes an extended family member as per this general policy? Why is applied in some cases and not others? In respect of whom can an exception be made?
It appears to us to be very unsatisfactory that the Minister is relying on policies which are not made public, to make decision effecting fundamental rights in respect of family life.
We draw attention to the obligation on the Minister to make available to the public all policies he will seek to rely on. Under Section 16(1) of the Freedom of Information Act 1997 the Minister is required to prepare and publish ‘rules, procedures, practices, guidelines and interpretations used by that body … for the purposes of decisions’ and section 16(5) requires them to be made available to the public
It has been emphasised by both Irish and UK courts, the importance of making State policies available to the applicants. Furthermore, the superior courts have refused to uphold a decision whereby reliance was made on a blanket policy without full reliance on the applicant’s individual circumstances. Of useful reference are Ezenwaka and Anon v MJELR [2011] and of the UK Superior Courts, Quila and Bibi v Secretary of State for the Home Department [2011].
We are concerned at the appearance of such a blanket policy and await the Minister’s response to our query.
Brophy Solicitors.
