By Aileen Gittens

Timeframe For Submitting Visa Appeals Is Not Rigid

Another reminder came from the Courts earlier this week that the Minister for Justice has an executive power to exercise discretion in the context of many immigration decisions.

In S.F. & Anor v Minister for Justice and Equality [2023] IEHC 629, the court held that in assessing applications under the Minister’s “Policy Document on Non-EEA Family Reunification”, the Minister cannot be rigid and inflexible, as to act in that way would unlawfully fetter the Minister’s discretion. Further, the Court highlighted that the Minister must consider the circumstances of each case presented to her, on their own merits. The Court found that 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. The Court found that the extent of the applicants’ delay should not alter the fact that the Minister is required to exercise her discretion to consider extending time for the lodging of an appeal. The Court found that “visible engagement with the reasons” on which the extension was sought is necessary to ensure that an applicant can know that the circumstances of their individual application have been considered.

The Court recalled the discussion of the Supreme Court in the case of A & B v. Minister for Justice [2022] IESC 35 that the Minister for Justice has an executive power to exercise discretion in the immigration context. In the A&B case, this was found to include a discretion available to the Minister to suspend a section 47 order (a refugee or subsidiary protection declaration) under the International Protection Act 2015 (as amended), which had the effect of extending the time the applicants had to appeal a recommendation of the International Protection Office to the International Protection Appeals Tribunal.

The finding in the A&B case came from the fact that there was nothing set out in legislation which restricted the Minister from suspending a section 47 order. 
The Court found that this “statutory discretion” was reflective of the discretion available to the Minister for Justice arising from the Minister’s “Policy Document on Non-EEA Family Reunification”.

The Court found that while the Policy Document allows for an appeal of a decision within two months of the date of the issue of the decision, the Minister must retain a discretion to extend the time for the lodging of an appeal “as an essential element of her unfettered discretion in relation to visa applications made in the State”.

The Court also referred to the case of Pfakacha v. Minister for Justice and Equality [2017] IEHC 620 in which the judge termed the “a bald application by the decision maker of the policies set out at para. 22.2 of the Policy Document” as a “fettering of the discretion vested in the respondent by s.4(7) of the 2004 Act”. The Court in that case criticised “the failure of the decision-maker to acknowledge that the guidelines expressed in the Policy Document were not set in stone”, and “the failure to engage in any meaningful sense with the submissions made by the applicants”.

The Court was satisfied that the Minister is entitled to insist upon the lodging of hard copy documents for the purposes of an appeal.

The Court found in this case that it did not appear that the Minister had considered her discretion to extend the time, in light of the humanitarian circumstances proffered by the applicants, and a refusal on that basis.

The Court quashed the decision of the Minister to refuse to extend the time allowed in this case to lodge an appeal and found that the Minister has exercised her discretion “in a rigid and inflexible manner, which is unlawful”.

The matter was remitted to the Minister for fresh consideration. 

If you or a family member have been refused a visa to enter Ireland, and if you would like advise as to whether there are grounds to appeal this decision, please feel free to contact our immigration team for advice. 

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