O’Leary v Minister for Justice

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Respondent/Defendant:Minister for Justice and Equality et al
Court/s:High Court
Nature of Proceedings:High Court of Ireland; Inter Partes; Application for Judicial Review
Judgment Date/s:24 Feb 2012
Judge:Cooke J
Keywords:Family Life (Right to), Immigration, Residence, Residence Permit
Geographic Focus:Ireland

The elderly South African parents of Mrs O’Leary, a naturalised Irish citizen, wanted to live with their daughter and her family in the State. Mrs O’Leary’s parents had often visited their family in Ireland, and her mother had looked after the grandchildren during the summer months every year since 1996. The applicants claimed that Mrs O’Leary’s parents were dependent on her daughter and son in law, and that their life in South Africa was insecure due to the high level of crime there. The Minister refused the applications, and the applicants sought to quash the refusals.

The Minister had refused the application for the following reasons:

  • that evidence that the parents’ names had been added to Mrs O’Leary’s credit card was inadequate proof of financial support;
  • that parents’ health problems and the issue of personal safety in South Africa due to crime levels would more properly be addressed by the repatriation division;
  • that the family’s citizenship and family rights did not confer on the parents an absolute right to reside in the State;
  • that the refusal would not dramatically impact the Irish citizens in circumstances where the grandchildren were no longer children; and
  • that it appeared that the South African parents had circumvented and manipulated the immigration system to their own ends, and were ‘shopping around’ for a country to live in.

The Court stated that the contested decisions fell to be assessed for their legality, not from the perspective of the South African parents, but from the perspective of their daughter and her family as Irish citizens, who seek to have the State permit them discharge the moral obligation they consider they have to support and care for Mrs O’Leary’s parents in their old age and reduced circumstances.

The Court, having considered the case law, stated that the applicants were not precluded from asserting that Mrs O’Leary’s parents were member of the family and that they had an entitlement to seek permission to discharge the moral obligations that they felt they owe them on the basis of Article 41 of the Constitution of Ireland. The Court said that the central issue in the case was whether the reasons given by the Minister for refusing residency constituted a lawful exercise of the Minister’s discretion under s. 4 of the Immigration Act 2004.

The Court stated that it found it difficult to avoid the impression that the decision maker was more concerned with finding and articulating grounds which would support a refusal rather than seeking to given an overall assessment of the merits of the application.

The Court said that while it may be true that there was no tailor-made application procedure for the particular circumstances of the case, it was manifestly the case that s. 4 of the Immigration Act 2004 gave the Minister power to extend any permission to be in the State to a non national and to prescribe conditions as regards duration which justly and reasonably meets the exigencies of a case.

The Court further said that it was part of the Court’s function to ensure that a decision which relies on a lack of good faith is very clearly sustained by the content and tenor of the material before the decision-maker, and that in the instant case, it was highly questionable whether the motives attributed to the applicants were consistent with the material before the Minister. Rather, the Court found, the picture that emerged was one of the O’Leary’s being extremely concerned at the plight of the grandparents and perhaps desperate to find a solution to the family dilemma.

The Court held that the erroneous view that the legislation could not accommodate the permission sought, and the unjustified attribution of improper motive and lack of good faith, were sufficient grounds to quash the decisions, and for the application to be given a fresh consideration.

The Court stated that contrary to the Minister’s decision, the monies provided went beyond what was merely extremely welcome, and, moreover, that the Minister erred in treating the applications as primarily based on financial considerations. The Court stated that any reconsideration of the applicants’ request that isolated the financial aspect would be unbalanced.


Contested immigration decisions where the immigrant has Irish family may, as in this case, fall to be assessed for their legality from the perspective of the Irish citizens.
In immigration-related administrative decision making, decision maker should seek to given an overall assessment of the merits of an application, rather than seek and articulate grounds to support a refusal.

S. 4 of the Immigration Act 2004 gives the Minister power to extend any permission to be in the State to a non Irish national and to prescribe conditions as regards duration which justly and reasonably meets the exigencies of a case.

Consideration of an applicant’s request under s. 4 of the Immigration Act 2004 cannot isolate the financial aspect of a case, lest it be unbalanced.

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