Man's residency refusal overturned after Minister's failure to consider impact on family

ireland
Man's Residency Refusal Overturned After Minister's Failure To Consider Impact On Family
The judge quashed the refusal and directed the Minister for Justice to reconsider the matter in line with the court’s findings. Photo: PA Images.
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There was an “unfathomable” failure by the Minister for Justice, when refusing a man's residency, to consider any impact on the mental-ill health of the Irish mother of his Irish-born child or the best interests of the child if the man was removed, the High Court has ruled.

In a judgment this week, Mr Justice Max Barrett upheld a challenge by the man, the woman and their four-year-old daughter over the Minister’s refusal to permit the man, a third country national, to remain here.

The judge quashed the refusal and directed the Minister to reconsider the matter in line with the court’s findings.

The man, Mr E, came here in 2001 on foot of a permission which expired in 2014. He and the woman, Ms F, met in 2007, dated for some years, and began a relationship in 2015.

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Their daughter, Miss Z, was born here in 2017. Mr E helps care for her and also acts in local parentis to an older child, whom Ms F had by a previous relationship.

Bouts of ill health

Mr E applied for residency in May 2018 based on his parentage of Miss Z. The main reason for the May 2020 refusal of residency was that refusal would not mean his daughter having to leave the EU and thus being deprived of her EU citizen rights.

The judge noted evidence Ms F suffers from bouts of serious mental ill-health and has to be medicated and sometimes hospitalised. Mr E has helped to lighten her burden as he helps to look after the children, he said.

The judge said, “quite remarkably in all the circumstances", the fact of Ms F’s mental ill-health was “nowhere touched upon” in the reasoning for the residency refusal decision.

Two letters, dated 2016 and 2019, from a distinguished consultant psychiatrist were before the Minister which indicated inter alia, the woman has an ongoing history of quite serious mental ill-health, he noted.

'Unfathomable'

The court was not suggesting, because a person may suffer from mental ill-health issues, they cannot cope with parental/familial responsibilities, he stressed. There are “doubtless many people who suffer from mental ill-health who are perfectly able to cope with such responsibilities”.

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In this case, the Minister rightly stated in her decision an assessment must be carried out to expressly consider several listed factors “in the best interests of the child”. The “gaping omission” was Ms F’s mental ill-health and any implications that flowed from that as regards Miss Z’s best interests if Mr E was removed from the family scene, the judge said.

The silence in the Minister’s decision as to Ms F’s mental ill-health, when that is a “key and critical aspect” of where Miss Z’s best interests lie, was “unfathomable” and suggested the representations as to Ms F’s mental ill-health were either partly or fully ignored or just not understood.

The residency refusal is invalid on grounds the Minister breached the principle of fair procedures, natural and constitutional justice in failing, refusing or neglecting to give any weight to, or to consider, the mental health of Ms F, he ruled.

Other grounds

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He rejected other grounds of challenge, including a complaint three factual errors, including typographical errors, rendered the refusal decision invalid.

While the wrong details should not have appeared, no practical consequence flowed from them for the applicants and none of the errors amounted to an error of law, he held.

Decision makers “are not expected to be perfect” and decisions do not fall to be quashed every time a factual or legal error occurs, he said.

His judgment has set out principles to be applied concerning the treatment of errors and in what circumstances they might result in a decision being quashed.

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