High Court: Refusal of visa extension quashed for inadequate reasoning

Killian Flood BL

About this case:

• Citation:
  [2021] IEHC 521
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Max Barrett

Delivering judgment in the case, Mr Justice Max Barrett held that the Minister had failed to provide adequate reasons for the decision, stating that “anodyne utterances” had been provided to the applicant.

Further, the court held that the Minister acted improperly by failing to consider Article 8 ECHR (regarding spousal separation). The court rejected the Minister’s submission that she was entitled to postpone consideration of the Article 8 point until the applicant was formally being deported from Ireland.

Background

The applicant, Ms Jaimee Middelkamp, was a Canadian national. She had moved to Ireland with her husband (also Canadian) in 2018 for her husband to study as a dentist. The husband had a student visa which entitled him to remain in Ireland until his four-year course ended.

However, Ms Middlekamp had a different visa, which only granted an entitlement to remain in the State for two years. This was extended to September 2021 following the outbreak of Covid-19.

In light of the fact that Ms Middelkamp’s visa would end before her husband was finished his education, she applied for an extension of her visa in December 2019. Under section 4(7) of the Immigration Act 2004, the Minister could extend or vary the terms of a permission to remain in the State.

The application by Ms Middelkamp was extensive and ran to nearly 200 pages. A significant part of her application focused on her right not to be separated from her spouse pursuant to Article 8 ECHR.

In January 2020, the Minister issued a letter to Ms Middelkamp refusing the application. The relevant reasoning was short and stated: “Having considered the full facts of your case, all your personal circumstances and representations provided and all rights arising, it is concluded that the interest of public policy and the common good in maintaining the integrity of the immigration system outweigh such features of your as might tend to support a decision to vary permission under section 4(7) of the 2004 Act.”

As a result of the letter, Ms Middelkamp issued judicial review proceedings against the Minister on two principal grounds. First, it was argued that the Minister had failed to provide adequate reasons for the decision. Second, Ms Middelkamp submitted that the Minister had failed to consider her Article 8 ECHR rights. Accordingly, the applicant sought an order of certiorari for the decision.

The Minister made a number of submissions in response. It was argued that the applicant knew in general terms why the decision had been made. The Minister also sought to provide a fuller explanation of the reasoning at trial, stating that granting the application may cause difficulties with Ireland’s future international arrangements with countries such as Argentina or Chile.

On the Article 8 point, the Minister submitted that the issue did not arise because the applicant was not to be deported until September 2021. As such, it was argued that the Minister could postpone any decision on Article 8 until that time.

High Court

Dealing first with the lack of reasons, the court outlined several ways in which the reasoning was deficient. First, the court held that the Minister’s decision was “not at all clear” and that the Minister had only provided “anodyne utterances.” The court questioned how allowing the applicant to remain in the State could adversely affect public policy, particularly when the Oireachtas had expressly provided for a mechanism of extending visas under section 4(7).

Further, if the Minister was correct that Ms Middelkamp’s extended stay in Ireland would have negative consequences for the immigration system, then it should have been spelled out in the Minister’s letter.

It was not open to the Minister to expand on her reasoning during the course of submissions in the case, the court held. As such, the court’s analysis was limited to the reasons provided in the Minister’s letter (A.B. v. Minister for Justice and Equality [2021] IEHC 439). For example, the “international relations” reason advanced by the Minister at trial was not contained in the original decision and so could not be considered.

The court also said that, while the impugned decision claimed to have considered “all rights arising,” there was no indication of the specific rights or how they were weighed by the Minister. There was also no reference to the Article 8 issue, despite being raised by the applicant.

The court then considered the Article 8 point. The court noted that Article 8 was expressly excluded by the Minister from her consideration of “all rights arising.” The court stated that the Supreme Court had previously rejected an approach where the Minister would only consider certain issues at the time of deportation (Luximon and Balchand v. Minister for Justice and Equality [2018] 2 I.R. 542). In reality, Ms Middelkamp’s Article 8 point would never be considered if it was left over until she was to be deported, the court said.

The position to postpone any consideration of Article 8 was not in accordance with law, the court held. Instead, it was “an attempt to apply precisely the two-stage process of consideration of rights to which the Supreme Court took objection in Luximon.”

The court further held that the ECHR was clearly engaged in the case and should have been considered. However, there was “not a whiff” of any consideration of Article 8 in the decision. On this basis, it could not be said that the Minister considered the point. If she had considered the point, then she did not provide adequate reasons, the court said.

The court was also dismissive of the “far-fetched” alternative solutions which were suggested by the Minister to the court. These included 1) paying repeated 90-day visits to Ireland, 2) enrolling as a student in Ireland and 3) apply for a Stamp 0 visa designed for rich people. The court noted that the Middelkamps had modest means, so this final suggestion made the court wonder “whether the Minister had any proper understanding of the factual circumstances presenting in this case.”

Conclusion

The court duly quashed the decision of the Minister and remitted the matter for fresh consideration.