Facts: The husband is an Afghan national, who fled to Ireland in 2006 and naturalised as an Irish citizen in 2021. His wife, who he married in 1998, and four children were resident in Iran and then applied for international protection in Turkey in 2021. The wife and four children applied for long stay visas to come to Ireland in December 2021. These applications were refused due to, inter alia, insufficient evidence of emotional and social support, lack of evidence of ongoing social contact, and the lack of birth certificates in respect of the third and fourth child. This refusal was upheld on review. The applicants sought judicial review proceedings in the High Court.
Reasoning: On most of the grounds of appeal, O’Regan J found the decision making to be lawful and the evidence submitted to have been adequately assessed. O’Regan J was satisfied that the applicants did not demonstrate that Article 8 ECHR rights to family life were infringed or that the respondent failed to act in the best interests of the child.
However, on the consideration of the applicant’s rights under Article 41 of the Constitution and specifically on the institution of marriage, O’Regan J held that this was inadequately assessed. With reference to the Supreme Court decision in Gorry [2020] IESC 55, O’Regan J. recalled that where credible evidence is given that a decision may result in an Irish citizen being unable to cohabit in Ireland with their spouse and where it may be extremely burdensome to reside together anywhere else, the State would fail to have regard to and respect for the institution of marriage if it did not consider those factors and give them substantial weight.
It was held that the decision maker did not consider cohabitation options available to the couple, as well as other factors such as the length and duration of the marriage, that the current arrangement is not a choice of the applicants, that visits do not equate to an ability to cohabitate or a reasonable substitute, that the visa applicants are international protection applicants in Turkey currently without any future permissions to reside, that they were not married when their status was precarious and the possibility of whether they could reside in their country of origin.
Decision: O’Regan J held that the Minister’s consideration of Article 41 failed to recognise the relationship between the applicants and respect the institution of marriage. It was held that this aspect of the decision should be remitted for further consideration.
