AJ v Minister for Justice and Equality

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Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2013] IEHC 296
Nature of Proceedings:Judicial Review
Judgment Date/s:18 Jun 2013
Judge:Clark J.
Keywords:Member State (Remain in the), Protection (Humanitarian), Refoulement, Residence
Country of Origin:Afghanistan
Geographic Focus:Ireland


The first applicant, an Afghan national, sought to quash a positive decision granting him leave to remain in circumstances where he had not challenged a decision by the Minister for Justice to refuse visa applications made in respect of his family, who were living in Iran. The Minister had a general policy not to permit any person, whether related to the subject of the grant or not, to join or visit him in the State. The applicant contended that there was no reasoned basis for the decision to grant him leave to remain or, alternatively, that it was based on recognition by the Minister that returning him to Afghanistan would breach the prohibition on refoulement.


The High Court held that the case was not concerned with any lack of clarity in the decision granting leave to remain, but constituted an attempt to circumvent the failure to challenge the refusal to grant the visa applications, whereby the decision could be transformed into one based on refoulement considerations, which would assist the first applicant in making an application for family reunification. It said that it was clear from the evidence and the decision granting him leave to remain that it was his humanitarian representations as to his mental health that had been decisive in his being granted leave to remain and that the grant of leave was not based on a belief that returning him to Afghanistan would breach the prohibition on refoulement.


The High Court therefore refused him relief and refrained from considering whether the blanket refusal of family reunification to persons granted leave to remain was compatible with the Constitution or the European Convention on Human Rights. It also declined to rule on the question of whether a person granted leave to remain was entitled to a full statement of the reasons for that decision, or indeed whether all positive decisions which relied on discretionary powers had to be accompanied by reasons.


A person the subject of a grant of leave to remain will not necessarily be entitled to reasons why that grant was made, at least in circumstances where it is open to the High Court to infer from the evidence what those reasons were.

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