S K v The Minister for Justice

APPROVED NO REDACTION NEEDED THE COURT OF APPEAL CIVIL Court of Appeal Record Number: 2025/164 High Court Record Number: 2023/1467JR Neutral Citation Number [2026] IECA 58 Whelan J. Pilkington J. Meenan J. BETWEEN/ SK APPLICANT/RESPONDENT - AND – THE MINISTER FOR JUSTICE RESPONDENT/APPELLANT JUDGMENT of Mr. Justice Charles Meenan delivered on the 20th day of April 2026 Introduction: – 1. This is an appeal by the above-named respondent/appellant (the “Minister”), from a judgment and order of the High Court (Barr J.) granting the applicant/respondent (“SK”) -2- an order that the decision of the Minister dated 20 September 2023 be set aside and the appeal be remitted back to the Minister for fresh consideration. Background: - 2. SK is a national of Afghanistan who came to this State as an asylum seeker in August 2015. He was granted subsidiary protection in December 2018 effective from 8 May 2019. 3. In 2020 SK had applied for family reunification in respect of three of his brothers, but this was refused on the basis that siblings are not treated as family members for the purposes of s.56 (9) of the International Protection Act, 2015 (the “2015 Act”) unless the sponsor is under 18, which at the time SK was not. Later that year SK applied again but this time he was refused as the application was made outside the 12 month time limit imposed by s. 56 (a) of the 2015 Act. 4. Over the course of 19 August 2021 and 25 August 2021, Join Family Visa applications were made by: – (i) SK’s mother: DK (DOB: 21 March 1970) (ii) SK’s brother OK (DOB: 11 May 2004) (iii) SK’s brother IK (DOB: 15 June 2009) (iv) SK’s brother SK (DOB: 9 April 2011) (v) SK’s brother AE (DOB: 27 July 2015) (vi) SK’s brother AK (DOB: 27 July 2015) Each of these foregoing applications was sponsored by SK. 5. The said applications were supported by legal submissions made by SK’s solicitors. 6. SK was informed by letter dated 30 November 2021 that the applications for Irish visas had been refused. This letter stated, inter alia: – -3- “In relation to the application of the exceptional circumstances ground to your case, such considerations apply within particular circumstances of an individual’s case where the family relationship has been established as coming within the scope of non-EEA Join Family Policy. This is not the case for you, as outlined above…” 7. SK appealed this decision. In support of the appeal SK’s solicitor made a lengthy submission set out in a letter dated 4 February 2022. 8. The said submission set out SK’s financial circumstances, stating that he was earning some €20,800 net per year. It was further stated that over a period of some 13 months SK had transferred a sum in the order of €7,217 (€481 per month on average) to Afghanistan. 9. The submission set out SK’s family background in Afghanistan in some detail, stating: – “Mr. SK is a 23 year old Afghan National from XXX Province, Afghanistan… He came to Ireland in August 2015 when he was 17 years old. He was granted subsidiary protection status in December 2018. SK always wanted to be reunited with his mother and five younger brothers who are in XXX Province, unable to go out of the house, unable to continue their education, unable to make a living for themselves. The Sponsor’s mother is a widow. Her husband was killed by the Taliban in or around 2016, because the Sponsor’s grandfather had been assisting the Afghan Army and police.” The submission further stated: – “ …[i]t is submitted that this is an application that ought to be granted on humanitarian grounds. There are exceptional circumstances that warrant the waiving of the financial requirements in this case…” The submission was accompanied by voluminous documentation. -4- 10. The appeal against the refusal to grant the visas was dismissed in a decision by the Minister dated 20 September 2023. Decision of 20 September 2023 (the “Decision”): - 11. The Decision sets out the background to the Visa applications stating: – “(SK) entered State on 7 August 2015 and claimed asylum. A request for a refugee declaration was refused in May 2019 and the Sponsor was instead given a Subsidiary Protection Declaration, effective from 8 May 2019…” 12. The financial information furnished by SK was considered in detail as was the dependency of the applicants. The Minister concluded: – “The applicants have not provided sufficient supporting documentation regarding their dependency on (SK). They have failed to provide satisfactory evidence of an ongoing relationship. The source of funds of the Sponsor (SK) is unclear. The recipients of the money transfers between Ireland and Afghanistan are unclear. The financial circumstances of the applicants is unclear.…” 13. The proposed arrangements for the accommodation of the applicants were they to arrive in Ireland was considered as follows: – “A letter from the Sponsor’s (SK) landlord permitting the applicant to reside there has been submitted along with the letting agreement dated 1 April 2022. An Internet search shows this property to be a two-bed house. The Sponsor (SK) has not indicated how the applicants will share this space. 1The landlord has not provided any utility bills or mortgage statements as proof of ownership.” 14. In refusing the appeal the Minister stated: – “I have considered all the information submitted with the Visa application and the appeal, and have determined that the applicants have not demonstrated -5- exceptional/humanitarian circumstances in this case which would warrant the granting of a Visa.” and: – “All matters concerning the Sponsor (SK) and the applicants, in so far as they have been made known, have been considered.” Judicial review proceedings: – 15. By order of the High Court of 12 February 2024 (Hyland J.) leave was granted to seek the following relief by way of judicial review: – (1) An order of certiorari quashing the respondent's (the Minister) decision on the Join Family Visa appeal that was sponsored by the applicant (SK) in respect of his family members in Afghanistan which said decision was made on 20 September 2023 and is identified by reference numbers –. 16. Under the heading “Legal Grounds” in the statement of grounds the following is stated: – (1) The respondent’s (the Minister) decision failed to consider the special humanitarian considerations which arise as a result of the applicant’s (SK) protection status in the State (Subsidiary Protection Status). Judgment of the High Court: – 17. In his judgement the trial judge helpfully identified what the primary issue was in the proceedings: – “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. -6- 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.’” 18. As per the statement of grounds, referred to at para. 16 above, in these proceedings the “exceptional set of circumstances” were that the Minister failed to consider special humanitarian considerations that arose as a result of SK being given a Subsidiary Protection Declaration. 19. The decision of the High Court relied, to a considerable extent on the judgment of Phelan J. in IAH v Minister for Justice [2023] IEHC 117. (IAH). The trial judge stated at para. 33: - “… 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 paragraph 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 -7- 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 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.’” 20. The central findings of the trial judge were as follows: – “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.” Notice of appeal: – 21. Though a number of grounds are advanced the substance of the appeal is as follows: – “(1) The High Court erred at paragraph 41 of the Judgment and at all other places where the same or similar findings were made, in concluding that the Respondent/Appellant -- failed to take into consideration the fact that the Applicant/Respondent -- was the holder of a declaration of subsidiary protection.” -8- ––– “(6) The High Court erred – – – in concluding that the appellant failed to have adequate regard to the ‘severe humanitarian crisis that has arisen in Afghanistan.’ The Respondent was not given leave to pursue any such ground for judicial review. (7) Without prejudice to the generality of the foregoing, the High Court erred at paragraph 44 of the Judgment in relying on the Respondent’s submissions to the Appellant when defining the limits of the pleaded case that the respondent had been given leave to pursue in these proceedings.” Consideration of appeal:- 22. In considering the issue as to whether or not the Minister took into consideration the fact that SK was the holder of a Declaration of Subsidiary Protection, it is necessary to look both at the documentation that was before the Minister and the impugned decision. 23. SK’s solicitor made a lengthy submission to the Minister set out in a letter dated 4 February 2022. This letter specifically refers to the fact that SK “was granted subsidiary protection status in December 2018…” (para. 10). I have referred to the extract from the submission set out at para. 9 above which sets out the difficulties encountered by SK’s family in Afghanistan. Specific reference is made to the fact that SK’s mother is a widow as “her husband was killed by the Taliban and in or around 2016, because the sponsor’s (SK's) grandfather had been assisting the Afghan army and police.” 24. Turning now to the impugned decision, the fact that SK was given a Subsidiary Protection Declaration is specifically referred to. Further, section 1.12 of the policy document is set out and the following is a statement by the Minister under the heading “Conclusion”: – “I have considered all the information submitted with the visa application and the appeal, and have determined that the applicants have not demonstrated -9- exceptional/humanitarian circumstances in this case which would warrant the granting of a visa.” 25. In light of this I do not think that the trial judge was correct in concluding that the Minister failed to take into consideration the fact that SK was the holder of a Declaration of Subsidiary Protection. 26. I do not think that the trial judge put sufficient weight on the statement by the Minister in the impugned decision, that “I have considered all the information submitted with the visa application and the appeal..” 27. The Minister referred this court to the decision of the Supreme Court in G.K. v Minister for Justice [2002] 2 IR 418. In that case the Minister had issued a letter to the effect that in reaching his decision all material and representations had been considered. It was submitted that the terms of the letter failed to establish an appropriate level of engagement on the part of the Minister that submissions had been considered. In giving the judgment of the Supreme Court Hardiman J. rejected this, stating at pages 426/7: – “If this submission were correct, the time would have to be extended, and the application for leave to proceed on the basis only of the pure hypothesis that what was said in the respondent’s letter might not be correct, and was therefore inadequate unless confirmed by an affidavit by or on behalf of the first respondent. I do not believe that this is the position in law. A person claiming that a decision- making authority has, contrary to its express statement, ignored representations which it has received must produce some evidence, direct or inferential, of that proposition before he can be said to have an arguable case.” 28. More recently this issue was again considered by the Supreme Court in Rana and Another v the Minister for Justice [2024] IESC 46. These proceedings again concerned what was described as being a “duty to engage” on the part of the Minister. The impugned - 10 - decision contained words to the effect that all material had been taken into consideration in reaching the decision. This submission was rejected by the Supreme Court. O'Malley J. stated, at page 34: – "91. The next question, then, is whether the decisions adequately comply with the duty to give reasons and engage with what was put before the decision-makers. The respondents say that they did not, because they did not expressly engage with the good conduct evidence. 92. The decision of this Court in GK makes it clear that a statement by a decision- maker that they have considered all the material put before them is sufficient, without further affidavit evidence, unless there is some evidence based reason to think that they did not..” and: – "93. I would therefore hold that it is not, in general, necessary to support a statement that all material has been considered with further evidence to prove the veracity of the statement.." 29. Applying the foregoing principles to the facts of this case it is clear that the Minister was aware that SK had been given a Subsidiary Protection Declaration and such is stated in the impugned decision. Further, the Minister was aware of SK’s family's difficult circumstances in Afghanistan, it had been referred to in his solicitor’s submissions. The Minister’s statement that all information submitted had been considered was not questioned or contradicted by other evidence adduced by SK. SK produced no evidence by way of affidavit or otherwise to the effect that the Minister’s statement was untrue. 30. SK’s reliance upon the decision in IAH is misplaced. Firstly, the judgment in that case does not take from or undermine the principles as stated in GK and Rana set out above. Though Phelan J. stated that having a subsidiary protection declaration was a “red - 11 - flag” for the purposes of the Minister exercising her discretion under clause 1.12 of the policy document the fact remains that such was stated to have been considered by the Minister in reaching her decision. 31. The submission that the Minister “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” is not well founded. Firstly, an examination of the statement of grounds establishes that SK did not seek leave on this basis. Rather, what is stated under the heading “legal grounds” is: – “1. The respondent’s decision failed to consider the special humanitarian considerations which arise as a result of the applicant’s protection status in the State (Subsidiary Protection Status).” 32. As leave was not granted on grounds concerning the “severe humanitarian crisis” in Afghanistan it follows SK is not entitled any relief on this ground. 33. In any event, the “humanitarian crisis” was referred to in the submission made by SK and how this situation had very seriously impacted on his family. Thus, in fact, this was, as stated, considered by the Minister in reaching her decision. 34. By reason of the foregoing, I would allow the appeal and set aside the order of the High Court. 35. On the issue of costs, as the Minister has been “entirely successful” in his appeal the provisional view of the Court is that he is entitled to his costs both in this Court and in the High Court. In the event that SK wishes to take issue with this, he may do so by furnishing written submissions (not more than 1500 words) within 14 days of the delivery of this judgment. Should the Minister wish to respond he may do so, again by written submissions (no longer than 1500 words) within 14 days thereafter. - 12 - 36. As this decision is being delivered electronically Whelan and Pilkington JJ. have authorised me to record their agreement with it.