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Ford and Another v Minister for Justice

Applicant/Plaintiff: Alison Ford and David Nwoke
Respondent/Defendant: Minister for Justice and Equality
Citation/s: [2015] IEHC 720
Nature of Proceedings:Judicial Review
Court/s:High Court
Judgment Date/s: 19 November 2015
Judge: Eagar J.
Category:Residence, Visa
Keywords:Visa; Residence; Fair procedures; Reasons; Family rights; Marriage
Country of Origin: Ireland and Nigeria
Geographical Focus:Ireland

Facts:
The applicants were a married couple. The first applicant, the wife, was an Irish national. She had three children from another relationship who were all Irish citizens and aged approximately 21, 12 and 6. Her husband was a Nigerian national. She was introduced to him by a mutual friend in or around 2010 and they maintained contact via telephone and social media, including Skype, thereafter. She met him in person in the United Kingdom in January 2011, after which they commenced a relationship which continued after he returned to Nigeria in February 2011. Thereafter they maintained their relationship by electronic and telephonic communication. In October 2013 the first applicant travelled to Nigeria and remained there for two weeks, during which time the applicants were married. She did not intend living in Nigeria and assumed that her husband would be able to join her in Ireland.

In or around December 2013 / January 2014, the second applicant applied for a visa to join his wife in Ireland. His application was refused by the Minister for Justice in April 2014. He applied for a review, in the course of which his wife submitted a letter outlining their relationship and how they had maintained contact since they had met. She referred to daily telephone calls between them and also contact on Facebook and Skype. The review was not successful, a decision being made in June 2014 to uphold the refusal of the visa. An article 8 of the European Convention on Human Rights (ECHR) consideration was carried out, which noted that the couple had never lived together, that he was not dependent on his wife, and at the time they married, she could not have had any expectation that he would be permitted to join her in the State. It was considered that refusing the application would not breach their right to respect for family life under article 8(1) ECHR.

The applicants challenged the refusal of the review. They contended that it breached their rights under Article 41 of the Constitution and was unreasonable in assuming that the marriage could, in effect, be continued without their living together and on the basis of the first applicant’s visiting Nigeria.

The High Court quashed the decision.

Reasoning:
It considered that the letter and the manner in which the couple had kept in contact did not appear to have been considered in the appeals officer’s decision. It also considered that the refusal was vitiated by the fact the bulk of the consideration of family rights had been under article 8 ECHR and that insufficient consideration had been given to Article 41 of the Constitution. In its view, family rights under Article 41 were not merely theoretical and their essence had to be respected. The refusal decision, however, effectively compelled the married couple to live apart and represented a very significant interference by the State with the core principle valued and protected by Article 41.

Decision:
The High Court quashed the refusal of the visa.

Principles:

This decision emphasises the extent to which novel means of communication, such as social media, can be important in establishing the existence of article 8 ECHR rights and similar constitutional rights for the purpose of making immigration-related applications, such as an application to join a spouse or, in the context of international protection, an application for family reunification. The decision also indicates that, when assessing such applications and the “family rights” at play,, decision-makers should give proper regard to the provisions of the Constitution, and not restrict their focus to article 8 ECHR.


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