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THE HIGH COURT
[Record No. 2023/1467JR]
[2025] IEHC 231
BETWEEN
SK
APPLICANT
AND
THE MINISTER FOR JUSTICE
RESPONDENT
JUDGMENT of Mr Justice Barr delivered electronically on the 8th day of April 2025.
Introduction.
1. The applicant is an Afghan National. He arrived in the State in 2015 when he was 17 years of age. His request for refugee status was refused in May 2019; however, he was given a declaration of subsidiary protection effective from 18th May 2019. He is employed as a chef and manager in a restaurant.
2. The applicant is the sponsor of the six applicants who applied for family reunification visas to enable them to live with the applicant in Ireland.
3. The applicants for the visas (hereinafter referred to as 'the family') are the mother of the applicant (55 years) and the applicant's five siblings, aged 20 years, 15 years, 13 years and twins aged 9 years. The applicant also has three sisters who are not minors. They did not apply for visas to enter the State.
4. The applicant was refused family reunification visas in respect of his family on two previous occasions on 11 March 2020 and 12 May 2021; on the first occasion, it was refused because the visas had been sought for two minor siblings, but not for their mother on whom they were dependant; and on the second occasion, because the application was made out of time.
5. The applicant submitted a further application seeking family reunification for the six family members. This was refused at first instance on 30 November 2021. The applicant, through his solicitor, lodged an appeal and made further submissions thereon. In a decision dated 20 September 2023, the respondent refused the application for family reunification visas on behalf of the family. It is this decision that is the subject matter of the challenge in this application.
6. While the applicant has challenged the lawfulness of that decision on a number of grounds, his main arguments were as follows: that in considering whether there were exceptional circumstances of a humanitarian nature that might justify a visa being granted notwithstanding the failure by the applicant to pass the financial threshold required under the relevant policy document; the respondent failed to have regard to the fact that the applicant had been granted a declaration of subsidiary protection, which meant that he could not return to Afghanistan without facing a risk of serious harm; meaning that family reunification in that country was not an option.
7. The applicant submitted that that fact was a crucial element in the consideration of whether there were exceptional circumstances which would justify the grant of visas on humanitarian grounds. In this regard, the applicant relied upon the decision in IAH v Minister for Justice, Ireland and the Attorney General [2023] IEHC 117.
8. The second primary ground of challenge was that the decision maker had failed to have any regard in the decision to the humanitarian crisis in Afghanistan after the takeover of power by the Taliban in 2021. In particular, it was submitted that the respondent had failed to have regard to the fact that the applicant's family were hostile to the Taliban, as his grandfather had had connections with the Armed Forces of the previous regime and his father had been abducted in 2015 by the Taliban and was presumed dead. In addition, there was the fact that the applicant's mother was a widow, who was caring for the applicant's five siblings on her own, which presented particular difficulties given the treatment of women under the Taliban regime.
9. The applicant submitted that both matters should have been weighed in the balance when the respondent was considering if there were exceptional circumstances of a humanitarian nature which would justify the grant of visas in this case. It was submitted that neither of these matters had been considered by the respondent when giving the appeal decision.
10. In response, the respondent submitted that the impugned decision made it clear that the grant of subsidiary protection to the applicant had been taken into consideration in the decision. In relation to the second main ground of challenge to the decision, it was submitted that that had not been pleaded in the statement of grounds and therefore was not an issue that was before the court.
Background to the Appeal.
11. The applicant arrived in Ireland in 2015, when he was 17 years of age. He obtained a declaration of entitlement to subsidiary protection on 8 May 2019. The applicant is now 27 years of age. He has worked since in or about 2020 as a chef/manager in a restaurant. It is common case that he earns approximately 26,000 per annum/500 per week.
12. For the purpose of the appeal, the applicant had submitted a large volume of documentation, including the following: identity documentation in respect of him and in respect of the family applicants; bank statements for his bank account in Ireland; evidence of MoneyGram transfers that had been made by him to members of his family and to others in Afghanistan, showing that in the two-year period prior to the appeal, he had transferred approximately 17,000 to his family. He also exhibited call logs showing WhatsApp communication between him and his eldest brother. He had submitted the documentation grounding his original application for refugee status/subsidiary protection. He had also made extensive submissions in relation to the situation in Afghanistan and to his holding subsidiary protection.
13. In the submissions lodged by his solicitor, the applicant had argued that given his family's connections to the previous regime in Afghanistan, and in particular, his grandfather's work with the army, his father had been abducted in 2015 and was presumed dead. It was submitted that due to these connections, the applicant's family lived in constant fear that they would be killed by the Taliban.
The Appeal Decision.
14. The appeal decision was handed down on 20 September 2023. For the purposes of this application, it is only necessary to give a brief outline of the main points in that decision.
15. The decision began by noting that the applicant had obtained a subsidiary protection declaration effective from 8 May 2019. It noted that he had been refused family reunification twice, on 11 March 2020 and on 12 May 2021. The decision went on to outline the identity and ages of the members of the family who were applying for the visas. It noted that there were three other children who would not be travelling to the State. The decision went on to note the passport details of the applicant and the visits to foreign countries that he had made. It also gave the passport numbers in respect of the family members.
16. The decision noted that a number of call logs had been furnished showing WhatsApp calls made by the applicant. However, the decision noted that it was not possible to decipher the content of the conversations/messages as they had not been translated. It was also not possible to determine who the conversations were between. The decision noted that no photographs had been provided by either the applicant or the family members to support evidence of their relationship.
17. The decision then looked at the financial situation of the applicant's family members. It noted that as per their application forms, none of the family members were in employment. All the minor children were stated to be in full-time education. The decision noted that the applicant had stated that he had made regular financial contributions to his family in Afghanistan. In this regard, it noted that there was evidence of the making of 43 money transfers; showing a total transfer of 17,315 to the family members in Afghanistan over a two year period. The decision noted that there were different people nominated as recipients of these transfers. A significant number had been made in the name of his deceased father. Others were made to other individuals. The decision noted that in a letter dated 9 February 2022, the applicant's solicitor had explained that due to the law in Afghanistan, it was not possible for the applicant's mother to be the recipient of the funds. For that reason, the funds had been sent in the name of his father. These funds would be collected by the applicant's adult siblings, who would use their father's identity papers to obtain the funds. Some of the funds were sent to an uncle and to a friend of the applicant, who would then transfer the funds to the family.
18. The decision noted that having reviewed the applicant's bank statements, there were repeated debit and credit transactions for MoneyGram payments. However, it was not possible to link the MoneyGram receipts provided, with that that on the bank statements. The decision stated that no explanation for these frequent transactions had been provided by the applicant.
19. The decision went on to deal with the financial situation of the applicant. It noted that he was earning approximately 500 per week. It referred to the relevant payslips that had been furnished by him.
20. The decision went on to deal with the accommodation details of the applicant. In this regard he had furnished a letter from his landlord showing that he was a tenant of a two bedroomed house.
21. The decision went on to carry out an assessment under the policy document on non-EEA family reunification. It noted that there had been lump-sum lodgements into the applicant's bank accounts in Ireland, for which no explanation had been given. The decision stated that in addition, the applicant had multiple debits on his bank accounts to MoneyGram, which had not been satisfactorily explained. It noted that these activities did not match the receipts provided, so it was not possible to determine what they related to. The decision stated that it was not clear how the sponsor had funded the very frequent financial transfers that had been made via MoneyGram to people in Afghanistan. It noted that the applicant earned 26,000 gross per annum; he did not appear to be in receipt of any social protection payments; he resided in accommodation which cost 900 per month and he had declared that he would obtain private health insurance for his family once they arrived in Ireland.
22. The decision went on to state that the applicant had failed to satisfy the visa appeals officer as to the source or level of income that he had in Ireland. It concluded that the low level of income demonstrated, may result in a reliance on public funds or resources.
23. The decision went on to note that the evidence provided was deemed to be insufficient to demonstrate that the family members were being supported by the applicant in Ireland as stated by him. Having referred to the fact that a number of transfers had been made into the name of his deceased father, the visa appeals officer concluded that he was not satisfied that the sponsor was providing ongoing financial support to the family members.
24. The decision went on to consider whether the family members were in fact dependent on the applicant. The respondent concluded that sufficient supporting documentation had not been provided by the family members showing their dependency on the applicant. It was held that they had failed to provide satisfactory evidence of an ongoing relationship. The source of funds of the applicant was unclear. The recipients of the money transfers between Ireland and Afghanistan were held to be unclear. The financial circumstances of the family members was unclear. The decision stated that the nature and extent of the relationship between the family members and their uncle or uncles in Afghanistan was also unclear. They had been listed as recipients of some of the money transfers, but it was unclear as to the extent of the support they provided to the family. It was held that the provisions of clause 14.2 of the policy, which required that it be established that the family members abroad were dependent on the sponsor in Ireland, had not been met. This portion of the decision concluded that the applicant had failed to demonstrate that he had the financial resources available to sustain himself and the family members without recourse to public funds. The respondent stated that having considered all the information submitted, he had determined that the family members had not demonstrated exceptional/humanitarian circumstances in this case which would warrant the granting of a visa.
25. The decision went on to give consideration to the application under Art.41 of the Constitution. It concluded that all the factors relating to the position and rights of the family had been considered and these had been considered against the rights of the State. In weighing these rights, it was submitted that the factors relating to the rights of the State were weightier than those factors relating to the rights of the family. In this regard, the respondent made the following conclusions: he found that insufficient documentary evidence of ongoing social support between the sponsor and the family applicants had been submitted. The family members had failed to provide satisfactory evidence of a subsisting relationship with their brother/son. The pages of untranslated message logs provided no insight into their relationship and therefore could not be considered.
26. In relation to the provision of financial support by the applicant to the family members, the decision noted that that had been examined in an earlier section of the decision. Having reviewed the documentation, the respondent found that insufficient documentary evidence of ongoing financial support between the applicant and the family members had been submitted. The decision went on to hold that having regard to the financial circumstances of the applicant, should the family members be granted visas to join him in the State, it was likely that they would become a burden on the State.
27. The conclusion in the appeal decision was in the following terms:
"All matters concerning the sponsor and the applicants insofar as they have been made known, have been considered.
It is noted that the sponsor does not meet the financial threshold considered necessary to be self-supporting of himself and the applicants which gives rise to reasonable concerns that the applicants would be reliant on the social welfare of the State should the visas be granted as sought.
All factors relating to the position and rights of the family have been considered and these have been considered against the rights of the State. In weighing these rights, it is submitted that the factors relating to the rights of the State are weightier than those factors relating to the rights of the family in this matter.
In weighing these rights it is submitted that a decision to refuse the visa application in respect of the applicants is not disproportionate as the State has the right to uphold the integrity of the State and to control the entry, presence, and exit of foreign nationals, subject to international agreements and to ensure the economic wellbeing of the country.
Discussion and conclusions.
28. It was common case between parties that the applicant did not meet the financial threshold to sponsor his family coming to Ireland. In order to come within the financial requirements of the policy document, he would have had to have had a weekly income of circa 960. The applicant's weekly income was approximately 500.
29. The applicant accepted that to be successful in obtaining visas for his family members, the respondent would have to be satisfied that the case came within clause 1.12 of the policy document, which is in the following terms:
"While this document sets down guidelines for the processing of cases, it is intended that decision-makers will retain the discretion to grant family reunification in cases that on the face of it do not appear to meet the requirements of the policy. This is to allow the system to deal with those rare cases that present an exceptional set of circumstances, normally humanitarian, that would suggest that the appropriate and proportionate decision should be positive."
30. The applicant submitted that he had made a strong case in his submissions prior to the appeal that there were extraordinary circumstances of a humanitarian nature which were in favour of visas is being granted in this case. In particular, he submitted that the decision-maker should have taken into account the fact that he had been granted a declaration of subsidiary protection. It was submitted that being a recipient of subsidiary protection was, in and of itself, a special humanitarian consideration. It was submitted that this had been clearly recognised in the IAH case. It was submitted that the respondent had failed to consider this crucial factor and had not therefore engaged in an adequate consideration of the application in this context.
31. In the IAH case, Phelan J had to consider the application that had been made by an Iraqi woman who had been granted subsidiary protection in the State. She had applied for family reunification with her husband who was in Iraq. The judge noted that the issue at the heart of the case was whether there had been a failure to properly consider the fact that the applicant had subsidiary protection status, in consequence of which she could not safely return to Iraq to establish family life, which embraced the right to cohabit with her husband in their country of nationality, when weighing the respective rights and interests of the applicant and the State.
32. The court noted that the European Court of Human Rights in Tanda-Muzinga v France App No. 2260/10 (ECHR, 10 July 2014), had recognised the heightened vulnerability of protection applicants who seek family reunification.
33. The court also noted that in S, S, S & I v Minister for Justice [2020] IESC 70, Dunne J. had noted that the decision of the ECHR in the Tanda-Muzinga case encapsulated the importance of allowing those who had fled persecution to resume normal life with family members. That case had recognised the fact that there was a consensus on the need for refugees to benefit from a family reunification procedure that was more favourable than that foreseen for others. Phelan J accepted that the case before her was one where the possibility of special humanitarian considerations arose and required to be factored into the mix by the decision-maker by virtue of the applicant's protection status in the State. She stated as follows at para. 42:
"... The fact that the applicant enjoys subsidiary protection status means that the application for spousal reunification in the State cannot be summarily dismissed as not requiring a further and full consideration in view of the failure to demonstrate financial eligibility or otherwise satisfy the first respondent's normal policy requirements, albeit these factors remain relevant. The applicant's subsidiary protection status constitutes a red flag that there are safety considerations which are required to be measured and weighed if proper consideration is to be given to the applicant's rights, most particularly if a visa refusal is sought to be justified on the basis of an ability to maintain family life in Iraq."
34. The learned judge stated at para. 51 that she considered that the fact that the applicant had a recognised protection status was of some real consequence given that such status arose from an acceptance of serious safety concerns for the applicant in her country of origin. The judge went on to state that the fact of protection status raised special concerns regarding the ability to maintain a family life elsewhere, including as an incident of same the ability to cohabit or reside together, and required to be measured when weighing competing considerations and arriving at a proportionate decision (see para. 62).
35. The applicant in the present case submitted that apart from a single reference to his holding a subsidiary protection status in the introduction portion of the appeal decision, there was no reference to this crucial factor in the consideration of exceptional circumstances that had been carried out by the decision-maker. It was submitted that the decision should be set aside for failure to consider this crucial element.
36. In response, Mr Kitson BL on behalf of the respondent, accepted that the fact that the applicant was the holder of subsidiary protection status, was a relevant fact that had to be placed in the equation. However, it was submitted that the fact that a person enjoyed subsidiary protection was not, of itself, an extraordinary circumstance that would oblige the Minister to grant a visa. It was submitted that in the present case, the respondent had considered the fact that the applicant held subsidiary protection status in arriving at his decision.
37. Counsel's argument in this regard was somewhat oblique. He accepted that there was no explicit reference to the fact that the applicant held subsidiary protection status, apart from the reference to it in the introduction section. However, he submitted that because the respondent had not found that the family unit had been voluntarily sundered by the departure of the applicant from Afghanistan in 2015; nor had the respondent found that the applicant could re-establish family reunification by relocating to Afghanistan; the absence of these findings in the decision meant that the respondent had had regard to the applicant's subsidiary protection status. Thus it was submitted that while not explicitly stated in the decision, it was clear that the decision-maker had had regard to the fact that the applicant held subsidiary protection status when reaching his decision.
38. The court is satisfied on the basis of the decision in IAH, that the fact that the sponsor holds subsidiary protection status is a material factor that must be weighed in the balance by the decision-maker when considering whether there are exceptional circumstances which would justify the grant of a visa, despite the sponsor not passing the required financial threshold.
39. I accept the submission made by counsel for the respondent, that the fact that the sponsor may enjoy subsidiary protection status, is not, of itself, an exceptional circumstance which would oblige the respondent to grant a visa. However, counsel for the applicant did not argue for that proposition. He merely argued that it was a crucial factor that had to be taken into consideration as part of the overall consideration of whether exceptional circumstances existed in the case.
40. I cannot accept the submission made on behalf of the respondent that because certain findings were not made in the decision, that the absence of these findings means that the fact of the applicant holding subsidiary protection status was taken into account by the decision-maker. That would be speculation. One cannot argue that because certain findings do not appear in the impugned decision, that the reason for their absence can be attributed to some unstated reasoning on the part of the decision-maker. When examining the legality of a decision, and in particular what factors were considered by the decision maker in reaching his decision, the court has to have regard to what is stated in the decision itself.
41. Having regard to the content of the decision, I find that the respondent failed to take into consideration the fact that the applicant was the holder of a declaration of subsidiary protection. That being the case, the respondent failed to give consideration to a relevant matter when considering whether the case came within the exceptional circumstances provided for in clause 1.12 of the policy document. On this basis, the decision must be set aside.
42. I also accept the second main argument put forward by the applicant that the respondent failed to have any or any adequate regard to the severe humanitarian crisis that has arisen in Afghanistan following the takeover of power by the Taliban in 2021; and in particular, to the hazardous circumstances of the applicant's family given their familial connection to the previous regime.
43. That was a significant part of the applicant's submissions made on the appeal. He made the case that his family were in extreme danger from the Taliban and in addition, that his mother, as a widow, was facing extreme difficulties in looking after her remaining minor children, given the prejudicial attitude towards women in that country due to the Taliban regime.
44. In response, the respondent pleaded that this ground of challenge had not been pleaded in the applicant's statement of grounds. While this aspect could have been pleaded with more particularity, it was highlighted in the submissions made to the respondent prior to the appeal and is referred to in para. 5 of the statement of grounds.
45. There is no evidence in the decision that the Minister gave any consideration to this aspect when considering the issue of exceptional circumstances of a humanitarian nature in the case. The decision must be struck down on this ground as well.
46. As the court is satisfied that the decision must be set aside on these grounds and as the court is further satisfied that the decision could not stand on the basis of any remaining findings set out in the appeal decision, it is not necessary to deal with the remaining grounds of challenge to the decision, as there will have to be a fresh appeal in any case.
47. Accordingly, the court will make orders in the terms of paras. 1 and 2 of the applicant's notice of motion dated 16 February 2024, setting aside the decision of the respondent dated 20 September 2023 and remitting the appeal back to the respondent for fresh consideration.
48. As this judgment has been delivered electronically, the parties shall have three weeks within which to furnish brief written submissions on the terms of the final order and on costs and on any other matters that may arise.
49. The matter will be listed for mention at 10.30 hours on 13 May 2025 for the purpose of making final orders.