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Nwosu v Minister for Justice and Equality

Respondent/Defendant: Minister for Justice and Equality
Citation/s: [2017] IEHC 372
Nature of Proceedings: Judicial Review
Court/s: High Court
Judgment Date/s: 10 March 2017
Judge: Faherty M.
Category:Visa, Residence
Keywords:Family Member; Family Reunification; Immigration; Third-Country National; Visa; Spouses; Minimum income threshold
Country of Origin: Nigeria / Ireland
URL: http://courts.ie/Judgments.nsf/0/99BDC9D3988FC61E802581E0003D27DA

Facts:

The first named applicant was a health care worker and an Irish citizen. The second named applicant was a business owner and a Nigerian citizen. The first named applicant was born in Nigeria but moved to Ireland in 2002. In 2008, she was granted three years permission to remain in the State. In her grounding affidavit, the first named applicant averred that she met the second named applicant in 2009 when she went to Nigeria on holiday. During that time they became romantically involved. After she returned to Ireland they maintained their relationship by way of electronic communication. The first named applicant returned to Nigeria to visit the second named applicant on numerous occasions thereafter. 


In 2011, the first named applicant’s permission to remain in the State was renewed for a further three years. On 27 June 2014, the applicants were married in a registry office in Lagos. The first named applicant remained in Nigeria until July 2014. On 20 September 2014, she became an Irish citizen. In or about February 2015, the second named applicant applied to the respondent for a visa to join the first named applicant in Ireland. This application was refused by the respondent by decision dated 8 April 2015. 

On 19 May 2015, the applicants, through their solicitor, applied for a review of the respondent’s decision. By letter dated 11 June 2015, the second named applicant was informed of the respondent’s decision to refuse the application for a review. In summary, the reasons for the refusal were the same as those which were set out in the first instance refusal, namely that the granting of the visa “may result in a cost to public funds” and “may result in a cost to public resources”. The applicants were informed that their appeal had been examined in accordance with the “Policy Document on Non– EEA Family Reunification” (the Policy Document) which, the applicants were informed, had been prepared “in accordance with public policy and in observance of the constitutional, ECHR and other rights of the parties and of society in general” and that such rights had been examined in the particular circumstances of the second applicant’s case including the correspondence dated 19 May 2015 from the applicants’ solicitor and all supporting documentation. The applicants subsequently instituted judicial review proceedings challenging the refusal of the visa and leave was granted by MacEochaidh J. on 13 July 2015.

The applicants submitted that the Minister erred manifestly in law and acted unreasonably and irrationally and fettered her own discretion in solely applying the terms of the Policy Document in order to refuse the application. It was argued that the Minister applied the Policy Document to the application in respect of the finances of the first named applicant and refused the application as a result without also and simultaneously considering and weighing in the balance, the rights of the applicants pursuant to the European Convention on Human Rights (the Convention) and the Constitution. It was further contended that the proportionality exercise undertaken by the Minister was unlawful as the visa was refused based solely on financial considerations and prior to any assessment of the individual rights in question. The applicants also complained that the Minister fettered her own discretion in applying strictly the terms of the Policy Document in order to refuse the application by applying the strict and rigid policy in all of the circumstances and failing to consider at all the first named applicant’s current and future income and employment status in the State. This was so in circumstances where there was evidence before the Minister that the first named applicant’s financial position had altered dramatically since the original application.

Reasoning: 

In relation to the application of the Policy Document regarding minimum financial income which the applicants did not meet, Faherty J. rejected the challenge to the rationality and reasonableness of the finding that the second named applicant’s presence in the State was likely to put pressure on the family’s financial resources with the likelihood of a cost to public funds and public resources. Having regard to the minimum income threshold set out in the Policy Document (namely a cumulative gross income over and above any State benefits of not less than €40,000 in the preceding three years), and the fact that the applicants fell short of this threshold, it was held that the Minister’s decision was within the parameters of reasonableness. Faherty J. also rejected the applicants’ complaint that the decision-maker did not properly assess or weigh the applicants’ rights under the Constitution or otherwise fettered her discretion, and accordingly refused the reliefs sought.

Decision:

Application dismissed.

Principles:

The Minister was entitled to refuse an application for a join spouse visa on the basis that the applicants did not meet the minimum income threshold set out in the  INIS Policy Document on non-EEA Family Reunification and therefore finding that the grant of the visa was likely to put pressure on the family’s financial resources with the likelihood of a cost to public funds and public resources.  


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Key European case law

A Member State is obliged to examine an asylum application if transfer would expose the applicant to a serious risk of a violation of fundamental rights

Court of Justice of the EU ruling on the transfer of asylum seekers under the EU Dublin Regulation Cases C-411/10 and C-493/10 M.E.


McCarthy: Rights of EU citizens to regularise the residence of their non-EU spouse

Court of Justice of the EU judgment in the case of McCarthy v Secretary of State for the Home Department (in UK).


Zambrano: Rights of non-EU parents of a child with European citizenship to live in the EU

Court of Justice of the EU judgment in the case of Zambrano v Office national de l’emploi (in Belgium).

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