Facts: SMR, the second named applicant, was born in Pakistan and married an Irish national in 2004. He moved to Ireland in 2005 and is now a naturalised Irish citizen. The couple had two Irish citizen children. The applicant submitted that his marriage was subsequently dissolved in accordance with Pakistani law around 2011. SMR is the guardian of their children. NZ, the first named applicant, is a Pakistani national, who married SMR in Pakistan in 2017.
Following the 2017 marriage, SMR returned to Ireland and they applied for a join family visa for NZ. This visa was refused in 2018, as was the appeal in 2019. The couple had a child, MUSR, the third named applicant, in 2020.
Following his birth, a new visa application was submitted. This was refused in 2022 due to insufficient explanation for inconsistencies in the application, including with regard to the validity of the divorce between SMR and his first wife, and thus the validity of the subsequent marriage between SMR and NZ. The refusal decision considered the constitutional rights of the applicants, with broad reference to Articles 2, 40.3.1., 41.1 and 41.3.1. The visa appeals officer found that because the marriage was not recognised, the child was considered to have been born outside of a lawful marriage and therefore did not have rights under Article 41 of the Constitution. In terms of the best interests of the child, it was held that the minor’s relationship with his father could be sustained at a distance (e.g. through electronic means of communication). The applicants appealed this decision by way of judicial review in the High Court.
Reasoning: In the High Court, Phelan J. agreed with the visa appeals officer’s finding that the information on the divorce of SMR from his first wife was insufficient and that the applicants failed to provide evidence to address the concerns of the officer. Phelan J. also agreed with the ensuing finding that there was insufficient information to confirm the validity of the marriage, which in turn meant Article 41 of the Constitution was inapplicable.
Nonetheless, Phelan J. held that the position of the child, MUSR, required further scrutiny. The applicants had not applied to register the birth of the child as an Irish citizen on the Foreign Births Register at the time of the visa decision, with an application only initiated after the proceedings in this case commenced. Phelan J. agreed with the respondent, the Minister for Justice, that prospective rights of the child would be too remote given that no application had been made for Irish citizenship for the child at the time of the decision.
However, Phelan J. recalled that it is established in case law that children who are not citizens and who do not fall under Article 41, still have constitutional rights due to the ‘inherent characteristics of human personality and the nurturing relationship between parent and child’ (para 41). These rights are not absolute and are limited by both the common good and the State’s legitimate interests, with a balancing exercise to be conducted by the decision maker.
In the visa appeals officer’s decision, while Article 41 was inapplicable and although it was accepted that the family have rights under Article 8 of the ECHR, there was no analysis of the rights of the child under Article 40 and Article 42A. No reference is made to the child’s constitutional rights irrespective of the marital status of his parents. It was recalled that while constitutional and ECHR rights overlap, they are not synonymous and interchangeable and must be considered separately. The decision maker must conduct a balancing exercise between the State’s interests and the rights of the child to the care and company of both parents under Articles 40 to 42A of the Constitution.
Decision: The refusal decision failed to fully consider the constitutional rights of the child in the balancing exercise between the State’s interests and the rights of the child under the Constitution. Phelan J. thus quashed the decision.
