Applicants left in the dark: what is the process and criteria required when granting non-EEA family members permission to live in Ireland?
Cillian Bracken BL examines recent family reunification decisions.
Increasing curial deference in relation to family reunification decisions
The criteria by which non-EEA family members are granted visas and permission to live in the State has puzzled immigration practitioners for some time. How and in what circumstances the terms of the Non-EEA Family Reunification Policy Document are exercised in favour of applicants continues to remain mysterious. Recent decisions of the Court of Appeal have now added to this mystique, compounding the difficulties faced by applicants, and even the Minister when applying it.
Background
The Policy Document applies to all situations where a person lawfully resident in Ireland – whether, for example, an Irish citizen or a Stamp 4 holder – wishes to have a non-EEA family member reside with them, other than those who can avail of the International Protection Act 2015.
While the Policy Document is prescriptive in some respects, for example the financial criteria, it is reasonably vague as to how family life rights arise and are dealt with and the actual process by which the Minister assesses the various factors and comes to a conclusion. Of course, such applications are by their very nature contextual so hard and fast rules simply couldn’t apply – but that said, the detail left unelaborated does mean that applicants are left in the dark.
Gorry
Following the Supreme Court’s decision in Gorry v Minister for Justice,[1] these ambiguities were both enlightened and obscured. The Court, upholding the Court of Appeal, held there was no prima facie right to cohabit but the Minister was required to have regard to the right of an Irish citizen to reside in Ireland; their right to marry and found a family; the obligation to guard with special care the institution of marriage; that cohabitation is a natural incident of marriage and the family; and that a decision to prevent cohabitation may make it difficult, burdensome, or even impossible elsewhere. That these are matters that ‘regard’ must be had to, and what weight they carry, continues the confusion.
The Court held that the fact of marriage should be given the same weight whatever its length or circumstances, and the duration of a relationship is weighed separately as an enduring relationship that must be valued and respected. This seems to suggest that marriage regardless of length enjoys some respect in the decision-making process given its premium under Article 41, but that an enduring relationship should be accorded weight too. What that means for more recent marriages, marriages that may not for a variety of cultural or religious reasons have been preceded by a lengthy relationship, and how the quality of an enduring relationship interacts with the fact of a marriage are unclear.
[1] [2020] IESC 55.
Recent Decisions
The Court of Appeal have recently considered these issues. While these decisions are welcome in some ways, in others they continue to obscure how to approach these applications.
BB v Minister for Justice concerned the refusal of a visa to an Algerian national to join her Irish citizen husband.[1] The Applicants sought judicial review primarily in relation to the standard of proof and assessment of the evidence by the Minister and the interpretation and application of Gorry. Ní Raifeartaigh J began by describing the approach to be taken in such an appeal – the High Court was reviewing ministerial fact-finding within the parameters of judicial review and the Court of Appeal in turn must consider whether the High Court fell into error in its approach to how the Minister conducted that exercise.
In relation to the assessment of the evidence and standard of proof, the Court stated that the burden falls on an applicant to satisfy the Minister of factual matters. The burden is to produce sufficient evidence in support of those facts and to prove those on the balance of probabilities. Regarding Gorry, the Court held that the Minister had lawfully examined the evidence regarding the pre- and post-marriage relationship and its circumstances.
While this may seem anodyne, it belies the actual central issues in these applications as to what does constitute sufficient evidence – while the Minister may be unconvinced that a matter has been proven, the deference given by the Court here suggests that not only is it up to the Minister to decide sufficiency, but that the standard of proof is itself entirely malleable, leaving applicants none the wiser as to whether something submitted is even capable of constituting sufficient evidence.
The Court also did not grapple with the main issue arising from Gorry – the interrelation between the fact of marriage and the pre- and post-marriage relationship and how the Minister should have regard to these. While the Court was content with the Minister’s assessment, it’s not fully clear why or how this adheres to Gorry (to be fair, this more to do with Gorry than with the Court of Appeal’s analysis), and, all other things being equal, at what point a relationship is sufficiently enduring and, if not, whether the fact of marriage changes matters.
In the similar case of LTE v Minister for Justice, Ní Raifeartaigh J, relying on BB in relation to the standard of proof, again, endorsed the Minister’s approach and analysis of Gorry, and that the Minister was entitled to explore all aspects of whether there was an enduring relationship which included their relationship (if any) before the marriage.[2] LTE is afflicted by the same issues as BB, really not bringing us closer to further clarity.
Finally, in A v Minister for Justice, to evidence their relationship, applicants had provided hundreds of pages of messages between each other, and the Minister had refused the application on basis they were not translated.[3] The Applicants argued this was contrary to their right to privacy and that the messages’ content was not relevant – rather the fact and frequency was what mattered, and the High Court agreed. On appeal, Meenan J held the Minister had doubted the provenance of the correspondence, and that Gorry makes it clear that a qualitative assessment as to the nature of the relationship is required and the Minister should be able to read those messages.
In a way, the recognition that the quality of the relationship is central to the determination is useful. However, this does not answer what does and does not constitute sufficient evidence and raises uncomfortable questions as to the extent the Minister needs to be invited into the bedroom in order to do so.
Conclusion
While is understandable that the Court of Appeal should defer to the Minister, the lack of clarity that continues to pervade means that applicants are encouraged to take a maximalist, scatter gun approach, requiring the abandonment of their privacy. This is also surely deleterious to the Minister in making the decision, adding volume and complexity to an already complicated area.
Leave has been sought to appeal to the Supreme Court in BB, and should it be taken up, this would permit the Supreme Court to colour in the gaps of Gorry and the interaction between and weight of the marriage and an enduring relationship, but, potentially more usefully, provide guidance on the standard of proof that applies and how applicants and legal representatives navigate this amorphous landscape.
The views expressed above are the author’s own and do not reflect the views of The Bar of Ireland.
[1] [2024] IECA 36.
[2] [2024] IECA 114.
[3] [2024] IECA 125.
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