High Court: Minister fettered discretion to extend time to appeal

About this case:

• Citation:
  [2023] IEHC 629
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Anthony Barr

Delivering judgment for the High Court, Mr Justice Anthony Barr held that “it is clear that the Minister cannot apply her policies in a fixed manner. She must consider the circumstances of each case presented to her, on their own merits. This does not require an extensive decision from the Minister, akin to that of a judgment of the Superior Courts, but it must require some engagement with the material presented by the applicant.”

Background

The first applicant fled Afghanistan on 4 June 2011 due to his family’s concerns that he was at risk of indoctrination by the Taliban. The applicant was arrested in Dublin Airport on 6 June 2011, and was taken into the care of the HSE as an unaccompanied minor. He was eventually granted refugee status by the respondent on 15 February 2016.

The first applicant’s family reunification application in respect of his parents and three younger siblings was granted by the respondent on 20 April 2017, and he became a naturalised Irish citizen on 21 April 2017. He married an Afghan woman on 20 December 2017, with whom he had two children, both being Irish citizens.

The first applicant applied for a join-family D visa and acted as a sponsor in respect of his wife, his older brother and his family, and his first cousin, the second applicant, on 20 October 2021. The first applicant’s wife was granted a D-visa by the respondent on 24 January 2022.

The second applicant was stated to be at risk of serious harm from the Taliban, due to his profession as a doctor and due to his provision of care to ‘enemies’ of the Taliban.

The respondent refused the visa application in respect of the second applicant by letter dated 29 April 2022, citing that insufficient documentation had been submitted, that he had failed to show a clear link to the first applicant, and that the first applicant’s finances were insufficient to sponsor him. The letter provided for an appeal within two months of the date of the letter.

The first applicant swore an affidavit to the effect that he had instructed his solicitors to lodge an appeal within one week of the refusal, but due to a heavy workload in the solicitor’s firm and the personal circumstances of the solicitor handling the case, the appeal was not submitted by 4 July 2022, rendering his appeal out of time.

On 5 July 2022, the first applicant’s solicitor sent an email notifying the respondent of the appeal and stating that more information and supporting documentation would be forthcoming. On 15 and 16 August 2022, the appeal and supporting documents were sent via courier to the respondent.

The respondent replied on 16 August 2022, advising that no hard copy appeal was received and that the visa office did not accept appeals by email. The respondent sent a further email on 18 August 2022, stating that both the hardcopy appeal and the appeal sent by email had been received, but as the hardcopy appeal was only received on 18 August 2022 at the Embassy, the time to submit the appeal had expired.

On 9 September 2022, the solicitors for the first applicant sent an email requesting that the respondent accept the appeal as being lodged in time via the email, or to extend the time limit within which to lodge the appeal, on grounds that the appeal was lodged late through no fault of the applicants.

The email further highlighted the discretion of the respondent to accept the appeal, stating that it would be disproportionate not to accept the appeal in light of the consequences for the family. On 12 September 2022, the respondent reiterated that she could not accept the appeal, and adopted the position set out in her email of 18 August 2022.

The applicants sought leave to challenge that decision by judicial review, which was granted on 14 November 2022.

The High Court

The matter came before Mr Justice Barr who began his analysis by setting out paragraph 1.12 of the Policy Document on Non-EEA Family Reunification, which provided for the discretion to grant family reunification in cases that on their face do not appear to meet the requirements of the policy in exceptional circumstances.

Referring to A & B v. Minister for Justice [2022] IESC 35, the judge noted the Supreme Court’s finding that in the absence of a clear restriction in the legislation, it could not be said that the decision to extend time to lodge an appeal under the International Protection Act 2015 lay outside of the scope of the executive power, as such would be an excessive restriction of a fundamental State power.

The court considered that the position set out by the Supreme Court was reflective of the approach to be taken by the respondent in relation to the discretion provided for in the Policy Document. Finding that the respondent was required to retain an unfettered discretion to extend time to lodge an appeal, Mr Justice Barr noted that this discretion could not be exercised in a rigid manner by the respondent, as per Ezenwaka v. Minister for Justice [2011] IEHC 328 and Mishra v. Minister for Justice [2015] IEHC 222.

Continuing that the respondent could not apply her policies in a fixed manner, the court emphasised that in line with S.R. v Minister for Justice [2023] IECA 227 and Pfakacha v. Minister for Justice and Equality [2017] IEHC 620, the circumstances of each case were to be considered on their own merits by engaging with the material presented by an applicant.

Accepting that the respondent was entitled to insist upon the lodging of hard copy documents for the purposes of the appeal, the court was satisfied that the respondent could reject the email of 5 July 2022 as ‘stopping the clock’ in relation to the lodging of an appeal.

Nonetheless, Mr Justice Barr determined that applicants’ delay did not alter the requirement for the respondent to exercise her discretion to extend time, and that the decision of 12 September 2022 did not demonstrate that the respondent considered her discretion in light of the humanitarian circumstances proffered by the applicants, having failed to set out that she considered the material and had decided not to exercise her discretion.

Conclusion

The court concluded that the respondent had failed to engage in any meaningful sense with the application made by the applicants to extend the time within which to lodge their appeal, and as the respondent had unlawfully exercised her discretion in a rigid and inflexible manner, the decision of 12 September 2022 was quashed, and the matter was remitted to the respondent for fresh consideration.

S.F. & Anor v Minister for Justice and Equality [2023] IEHC 629