High Court upholds visa refusal for Ethiopian citizen who married Irish citizen in a proxy marriage

An interesting case appeared before the High Court in November 2022 in Ireland regarding visa application for a D-visa for the purpose of family reunification with an Irish citizen spouse.

Facts of the case

S.M. is a dual national of Ireland and Somalia. She arrived in Ireland with her mother and siblings 25 years ago through the Family Reunification process with her father who has been granted asylum. In 2001 she was granted Irish citizenship. She graduated from college with a master degree in 2019 and works full time as a healthcare professional.

T.A. is a citizen of Ethiopia. He lives in Jigjiga, Ethiopia, near the Somali border. He has been working with NGOs in Ethiopia for the last 6 years with a background in procurement and logistics.

They met online in 2017. It is understood that their families know each other and belong to the same tribe. S.M and T.A. developed a long distance relationship. They decided to get married in summer of 2018. The Nikkah-Islamic wedding took place on the 24th of June, 2018 without a presence of the bride because she had some major examinations at Dublin university at the time. In Islam, attendance is not a requirement, her mother represented her in the wedding and her father gave his consent to the marriage.

S.M. met T.A. in person in July 2019 in Ethiopia. And in August 2019 they had a “White Wedding Ceremony” in Jigjiga. They then lived together for 4 months but S.M. was having troubles securing a job and they decided to relocate to Ireland.

They maintained their once again long distance relationship through phone calls and Facebook as well as several visits in Ethiopia.

In December 2020 they applied for a long term D type visa at the Irish embassy in Addis Ababa in Ethiopia. On 15th of March 2021, the visa was refused. They sought an appeal and an appeal was unsuccessful by October 2021.

The couple sought judicial review of the unsuccessful appeal.

Initial refusal letter had 5 reasons for refusal.

FM – No automatic right for non-EEA nationals who are family members of Irish citizens to migrate on a long-term basis to Ireland.

ID – Referring to the quality of documents. It was found that the marriage certificate submitted was in the name of S and noted the date of marriage as the 24th of June, 2018. S.M. changed her name from Z to S on the 15th of March, 2019 – which is a date after the marriage took place.

ID – Referring to the insufficiency of documentation submitted in support of the application. In this regard, the following issues/matters were indicated as not supported adequately or at all:

• That S.M. was in the home country of T.A. at the time of marriage
• The extent to which family life exists between S.M. and T.A.
• The relationship history
• Ongoing routine communication both prior to and since marriage
• Face to face meetings prior to marriage
• Visits by S.M. to T.A.’s home country prior to and since marriage
• No full copy Irish passport from S.M. was submitted
• Why S.M. did not travel to Ethiopia for the marriage ceremony
• Accommodation details of S.M.

INCO – this refers to inconsistencies. There was no evidence to suggest that S.M.’s mother was in Ethiopia at the relevant time and represented her. Moreover, it was noted by the visa officer that the marriage was not registered until the 16th of March, 2020. The birth certificate of T.A. was not registered until the 16th of March 2020 also despite him being born on the 12th of April 1991 and that there was no explanation for this. It was also noted that the registration of T.A.’s birth and the registration of the marriage both took place on the 16th of March, 2020.

RH – this refers to relationship history. The visa officer refers to the fact that section 5.3 of the Policy Document on Non-EEA Family Reunification places the onus of proof as to the genuineness of the family relationship with the applicants and that same had not been sufficiently addressed in the application. In particular, it was stated “for immigration purposes, a relationship must include a number of face to face meetings (excluding webcam) between the parties”. The decision goes on to highlight that there was nothing submitted to suggest that the applicants met face to face prior to S.M. traveling to Ethiopia on the 30th of June, 2019.

Once a visa is refused, an applicant has 2 months to appeal the decision, which applicants in this case did.

Applicants submitted an appeal and included letters from Dublin university, the Dublin Mosque and the Islamic Court. They also submitted a USB stick with photos and videos of their wedding and family life as well as chat history of social media. For the purposes of proving accommodation in Ireland S.M. submitted a bank statement. She also tried to explain the change in name from Z to S claiming administrative error. 2 letters are used interchangeably in Somalia and she used both.

When refusing an appeal some of the reasons for refusal were repeated, but some new ones were added up.

F – referring to finance – the visa officer had concerns that the granting of a visa could result in costs to the State.

FM – repeated.

ID – referring to supporting documentation the visa offer found:

• the marriage certificate was unattested
• Insufficient information submitted regarding marriage by proxy has been submitted (in relation to S.M.’s mother being in attendance)
• Insufficient evidence to show extent to which family life exists between the applications.
• insufficient evidence of S.M. visiting T.A. in home country both prior and since marriage
• S.M. failed to submit full current Irish passport
• insufficient evidence relating to accommodation of S.M. submitted

INCO – referring to inconsistencies and contradictions – the visa officer found:

• The unattested marriage certificate submitted on appeal, has S.M.’s name as Z as opposed to the one submitted at first instance issued by the Federal Democratic Republic of Ethiopia Vital Statistics Registration which has S.M.’s name as S.
• Nothing was submitted to demonstrate that S.M.’s mother was in Ethiopia at the time the marriage was conducted on the 24th of June, 2018
• The visa officer noted that the marriage and the T.A.’s birth were both registered on the 16th of March, 2020 despite him being born on the 12th of April, 1991 and that no explanation had been provided for this given it was nearly 29 years after his birth. The visa officer also rejected the letter from the Ethiopian Registration Agency in circumstances where it did not meet with the conditions that such letters must be on official headed paper and give full contact details so that they can be verified.

PF/PR – referring to public funds/resources – the visa officer had reasonable concerns that the granting of the visa could result in costs to the State.

RH – referring to relationship history – the visa officer stated:

• As per Section 5.3 of the Policy Document the onus of proof as to the genuineness of the family relationship rests squarely with the applicants and that it had not been sufficiently addressed in the application.
• The applicants had not provided sufficient evidence of the stated relationship being in existence prior to and since the marriage. Full account of relationship history between the applicants not submitted.

Mistakes and things to consider when applying for a visa

The applicants did not make sure that they submitted all the required documents. It is vital to go over the requirements and double or even triple check if everything is in order. Our past clients for example, quite often forget to include the first page of the passport in their application when a copy of a passport is required. The documents must include the correct names and dates.

The documents submitted must be submitted in the form that they are accepted. For example, employment or educational references must be submitted on an official headed paper same as bank statements. Every translation must include a signature with contact details of the translator. Here, S.M. submitted an official letter from a government agency on a plane piece of paper with no full contact details. So the visa officer could not verify it and can not accept it.

They did not make sure that they explained everything in their initial application. We often tell our clients that if you don’t explain something, the visa officer will assume the worst. That is why if something is out of the order, for example, you are used to using 2 names. My name is Anzhelika (that’s used in passport) but I do have some older documents where my name is Angela, I used that name when I was studying in the US. If I ever apply I will need to explain why this name was used and when if I am submitting some documents that show that name as opposed to the name in my passport.

They submitted an USB stick which of course was never checked as it unacceptable and unverifiable under the immigration guidelines. So, in order to prove your family history you need to print out your chat history and photos. And yes, sometimes it results in a huge pile of paper and is absolutely not good for the environment and I do hope that soon we will see an electronic system that will allow applicants to upload documents and photos but we all have to work under the current rules and regulations.

If you are in the position that you have to appeal a visa decision, you have to make sure that you are addressing every reason for the refusal. For example, here S.M. was asked to confirm that she has a place to live and she submitted a bank statement, but the visa officer was looking for a rent agreement or mortgage account or a utility bill. She not only gave them a new reason because her bank statement did not have sufficient finances but she also did not appeal at least 1 of the reasons by doing so.

Decision of the visa officer

We can assume that the visa officer in Addis Ababa did not believe that applicants had a genuine relationship with each other both prior and after the marriage. They could not prove with documents that Nikkah marriage took place because they could not confirm that the mother was in Ethiopia to represent her daughter. They did not see enough evidence to prove that they in fact had a long distance relationship and kept it up through chats or calls. It was very suspicious that both marriage and birth were registered on the same date. Their documents looked suspicious too, some were not provided, others weren’t provided on a headed paper. And even though S.M. earned 40k euro in the last 3 years prior to the application, her bank balance was really low which gave the visa officer a reason to suspect that her husband will become a burden on the State.

Outcome and considerations

The court decided not to quash the decision to refuse visa despite the fact that the judge found some errors in the process of arriving at such a decision. The reason for that was that the application would still be unsuccessful on grounds described in the refusal letter.

Institution of marriage is constitutionally protected under the Irish law and the marriage by proxy can be accepted as valid under certain circumstances but it is the applicants who must prove that they not only met in person but that their relationship is a genuine relationship of husband and wife.

The judge also highlighted that the applicants were not given an opportunity to appeal the financial reasons for refusal because they only appeared after the appeal and were not part of the initial decision to refuse a visa.

Judge Phelan advised the applicants to resubmit their application with further and up to date supporting documentation including a full copy of S.M. ‘s passport and proof that her mother was present in Ethiopia at her proxy wedding and other relevant matters.

Review of the court decision was prepared by Anzhelika Samuilova, BCL

Time to Move Ireland provides support in applying for all types of visas to Ireland. Please contact us if you need assistance with your application or appeal.

Full judgement is available on court.ie website here and the Policy Document referred in the judgement is available on the INIS website here.