Facts: The applicant is an Iraqi national who arrived in Ireland in 2011. She was granted subsidiary protection status in 2015 and in 2018 married an Iraqi national by proxy. She applied for a visa for him to join her in Ireland in 2019 under the Policy Document on Non-EEA Family Reunification. The Minister refused this application and the appeal of this refusal. The application was refused for several reasons including that the sponsor was dependent on social welfare (in the form of Disability Allowance) and that it was considered likely that the family would become a burden on public funds. In making the decision to refuse, the Minister conducted a weighing exercise between the right to family life and the countervailing interest of the State to pursue immigration control. A relevant factor in this weighing process was whether family life could be established elsewhere. In this regard, it was alleged that the applicant had travelled to Iraq in 2016. The applicant challenged the Minister’s decision by way of judicial review.
Reasoning: Phelan J. found that no reference was made in the decision of the impact on the applicant’s subsidiary protection status in Ireland and her ability to establish a family life elsewhere.
Phelan J. found that the Minister never informed the applicant that it was thought she had travelled to Iraq in 2016, which was integral to the question of whether the applicant could safely return to Iraq to maintain a family life with her husband. The applicant denied such a trip took place, stating that she had travelled to Iran. Due to not being informed of the Minister’s information, she was not given an opportunity to address it in her visa application. Phelan J recalled that persons with protection needs are treated differently when it comes to family reunification and noted that had the applicant been married when she was granted subsidiary protection status, she would have been eligible for the family reunification provisions under the International Protection Act 2015.
Decision: Phelan J. held that the refusal to grant the visa without proper consideration of the impact on the applicant’s subsidiary protection status and her family life, and her ability to live together with her spouse was legally unsustainable. Phelan J. proposed to make an order quashing the Minister’s decision.
