OLeary Ors - v- Minister for Justice Equality and Law Reform
Neutral Citation IEHC 80
High Court
Judgment was delivered on Feb 24th 2012 by Mr Justice Cooke
Judgment
A decision to refuse the South African parents of an Irish citizen, and the grandparents of her Irish children, permission to reside in Ireland was mistaken and legally unsound, and took an overly narrow view of what constituted a family under the Constitution.
Background
The applicants in the case were an Irish citizen, Diarmaid OLeary, and his South African-born wife, Desiree, also an Irish citizen, along with her parents, the Lemieres, who were South African citizens. The couple lived in Ireland with their two daughters and were seeking permission for Mrs O’Leary’s elderly parents to live with them, following the couple experiencing increasing difficulties in relation to their health and security in South Africa.
They had visited Ireland annually for the summer months from 1996 to 2003, and again in 2005, taking care of the children during the school holidays while the parents worked. As South African citizens they did not require a visa. They now wanted to move and the O’Learys wanted to take care of them in Ireland.
The couple arrived in Ireland in February 2009 with return tickets booked for August that year. Mrs Lemiere was given permission to stay for six months, while Mr Lemiere was given permission to stay for 30 days and asked to contact the Garda National Immigration Bureau, which he did. There, they were told by the immigration officer that they would receive six-months permission if they had health insurance. This was immediately arranged with the VHI. However, when they went back the following week, a different immigration officer spoke to them who was not willing to extend the permission. It was also stated that the six-month permission for Mrs Lemiere had been issued in error and it was amended to expire on May 31st.
Their solicitor then submitted an application for residency on their behalf, based on their dependency on their family in Ireland, and asked that they be granted temporary residency while the application was being considered. The permission was extended until September 2009, but another immigration öfficial told them that it was not possible for non-visa visitors to stay on and change their status. It would be necessary to have “to reside with relatives” stamped on their passports, they were told.
In order to comply with this, they left the state in August and came back two weeks later, but were told at the airport there was no such stamp. They applied for residency, but this was refused on various grounds, including that they were not “dependent” on the family in Ireland, that there was no provision in Irish immigration legislation for granting of permanent residency and that they had sought to “manipulate” the immigration system.
Decision
Mr Justice Cooke disagreed with the view of counsel for the Minister that the concept of the “family” in the Constitution was restricted to the nuclear family of parents and minor children. Such a concept of “family” would have been unknown to the population of the State when adopting the Constitution in 1937, and the jurisprudence of the European Court of Human Rights did not so restrict family rights, he said.
The OLeary family therefore were not precluded from asserting that the Lemieres were members of their family. Commenting on the reasons given by the decision-maker for rejecting the application for residency, Mr Justice Cooke said: “The Court finds it difficult to avoid the impression that the decision-maker was more concerned with finding and articulating grounds which would support a refusal rather than seeking to give an overall assessment of the merits of the application in a balanced and objective manner.”
Referring to the statement that there is no provision in Irish immigration law for a non-EU national dependent to join an Irish citizen in the State, he said this did not constitute a valid answer to the request made, as the Minister had power in his discretion to extend any permission to be in the State to a non-national.
He quashed the refusal of permission and remitted the matter to the Minister.
The full judgment is on courts.ie
John Finlay SC and Michael Lynn BL, instructed by Kevin Brophy solrs, for the applicants; Robert Barron SC and David Conlon Smyth BL, instructed by the Chief State Solicitor, for the State.