Facts: The appellant, a Nigerian national, arrived in Ireland in February 2013. He applied for international protection, but this application was unsuccessful.
In October 2016, the appellant applied for leave to remain pursuant to section 3 of the Immigration Act 1999, as amended. He had been in a relationship with his partner, a Zimbabwean national, since 2013. His partner’s application for international protection had also been unsuccessful. In the ‘Examination of File’ of his application for leave to remain, it was noted that the appellant had been in the State for over five years, living with his partner in a religious marriage and acting in loco parentis for his partner’s child. It was also noted that the appellant’s partner was awaiting the outcome of her and her child’s applications for leave to remain and there was a possibility she would be granted this permission in line with the recommendations of the Working Group on Improvement in the Protection Process.
In February 2017, the Minister refused the appellant’s application for leave to remain and he was issued with a deportation order. Nine months later, the appellant’s partner and her child were granted leave to remain. The appellant brought judicial review proceedings arguing that the Minister failed to determine his partner’s application prior to or in tandem with his application, or, failing that, failed to afford him the benefit of certain assumptions made by the decision-maker as to the outcome of his partner’s application.
The High Court refused to grant leave to seek judicial review. The appellant appealed this refusal in the Court of Appeal.
Faherty J examined whether the grounds raised in the statement of grounds amounted to ‘substantial grounds’ upon which the appellant could be granted leave for judicial review. The case centred on the question of whether it was arguable to the requisite standard that, due to the particular factual matrix presented in the appellant’s case, the decision-maker should have been obliged to consider the appellant’s and his partner’s applications in tandem and determine the partner’s application prior to giving consideration to that of the appellant.
Decision: Leave was granted for judicial review on two reformulated grounds. The first of which was that, when presented with the appellant’s de facto family unit and the possibility that the appellant’s partner and her child might be granted leave to remain, the Minister failed, as a matter of fairness and good administration, to first determine the appellant’s partner’s application. In the context of the requisite weighing exercise, this thereby deprived the appellant of the benefit of his partner’s favourable outcome.
The second ground was that when the Minister engaged with the hypothesis that the appellant’s partner and her child would be granted leave to remain, it was done in a manner that deprived the appellant of a lawful consideration of the benefit of that favourable factor. As such, the Minister failed to consider the impact of his deportation on their family life in the requisite weighing exercise. This ground also included the Minister’s consideration of the favourable outcome for the appellant’s partner’s application solely through the prism of a future family reunification application, whereas the appellant was instead seeking permission to remain in the State in the context, inter alia, of being part of a de facto family unit.