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2026 IECA 78

NO REDACTION NEEDED APPROVED THE COURT OF APPEAL CIVIL Court of Appeal Record Number: 2025/202 CA High Court Record Number: 2022/895 JR Neutral Citation Number [2026] IECA 78 Whelan J. Binchy J. Meenan J. BETWEEN/ NL APPLICANT/RESPONDENT - AND – THE MINISTER FOR JUSTICE AND EQUALITY AND THE MINISTER FOR BUSINESS, ENTERPRISE AND INNOVATION RESPONDENTS/APPELLANTS JUDGMENT of Mr. Justice Charles Meenan delivered on the 8th day of May 2026 Introduction: – 1. This is an appeal from the judgment (O'Higgins J.) and order of the High Court granting an order of certiorari quashing the decision of the first named respondent/appellant (the “Minister”) of 11 August 2020 imposing a five-year exclusion period on the applicant/respondent (NL) from making further Irish Visa applications until 10 August 2027. -2Background: – 2. NL is a Chinese national. She applied for a Stamp D Work Visa within the State and submitted supporting documentation on 20 May 2022. This application was refused by letter dated 24 June 2022 (the “June letter”). 3. The June letter stated, inter alia:“ID: – authenticity of documents. Following checks conducted by this officer the Visa Officer is not satisfied. Following checks conducted by this office, the Visa Officer is not satisfied that the current and proposed employment details provided by the applicant are genuine. INCO: – inconsistencies e.g. contradictions in the information supplied. Following checks conducted by this office, the Visa Officer is not satisfied that the employment details provided by the applicant are genuine. The applicant (NL) and their employer were contacted by this office to verify the applicant’s stated employment. The Visa Officer, having compared the responses received by both parties, in addition to the paperwork submitted by the applicant, identified a number of inconsistencies in the information presented by both the applicant and the employer. As such, the Visa Officer is not satisfied that the employment details provided by the applicant are genuine.” “The provision of false misleading/information is seen as a deliberate attempt to mislead the Visa Officer. As you appear to have provided misleading information, you are not entitled to appeal this decision.” “Furthermore, you signed a document confirming that you understood that the submission of false documentation/information may result in you being prevented from making further Irish Visa applications for a period of up to 5 years.” -3“Prior to a decision being made on this you have 14 days to submit any reasons why this exclusion period should not be made against you…” 4. On receipt of this letter NL instructed a solicitor who, by letters dated 5/6 July 2022, wrote to the Minister. In response to the “inconsistencies” referred to in the June letter, her solicitor stated: – “It is submitted that the employer, namely Cloud Intersoft Ltd CIL has confirmed that they have not received any correspondence from the Visa Officer in relation to our client’s employment position or indeed any form of confirmation correspondence via telephone, email or any form of communication (please see letter from Cloud Intersoft Ltd dated 29 June 2022 attached). For this reason, it is submitted that we wish to question as to whom exactly the Visa Officer has contacted in order to ‘verify’ the details of our client’s employment. Given the fact that the Visa Officer’s claim of our client’s alleged ‘false documentation/information for the purpose of the Visa application’ relies on the alleged communication with the Cloud Intersoft Ltd, if there were no verification communication, the allegation ought to be withdrawn immediately.” 5. In response, the decision of the Minister on the exclusion period was delivered in a letter dated 11 August 2022 (the “August letter”). The letter informed NL that the earlier decision excluding her for a period of five years from seeking a Visa was being upheld. The letter stated that concerns in relation to NL’s current employment continued. The letter further stated: – “It should be noted that this office did not contact the proposed employer in Ireland, however did contact the applicant’s employer in China. It is from this communication that inconsistencies arose. At the outset this office raised concerns -4in relation to your potential employment in Ireland. The Visa Officer continues to hold concerns in relation to the authenticity of that employer and employment. Following checks conducted by the Office, the Visa Officer is not satisfied as to the authenticity of Cloud Intersoft. The Visa Officer has serious concerns surrounding the company’s website and headed paper and other submitted documents, which do not contain basic elements which would be expected to be included in such media…” 6. In the proceedings an affidavit was filed by Ms. Melissa Brennan, Higher Executive Officer in the Visa Division of the Irish Immigration Service. In her affidavit Ms. Brennan exhibits a copy of contemporaneous notes and a narrative of all the actions that were taken in relation to NL’s Visa application. This document is titled “Staff Journal Entry” (the “Journal”). 7. The Journal records the telephone calls that were referred to in the June letter. On “inconsistencies” referred to, the Journal states: – “... (NL) working as finance director, company pays cash to her every month, that’s why I can’t see salary from bank statement. I noticed the same family name of the Chinese company’s legal person, applicant confirmed that is her brother. Called brother’s mobile phone, he said company pays salary by bank transfer. There’s some inconsistencies on the salary payment for her employment.” 8. Concerning the “authenticity” of Cloud Intersoft, the Journal records: – “…the Visa Officer has serious concerns surrounding the company’s website and headed paper and other submitted documents, which do not contain basic elements which would be expected to be included in such media…” Judicial review proceedings: – 9. By order of the High Court (Meenan J.) of 12 December 2022 NL was granted leave to seek the following reliefs by way of judicial review: – -5“(

  1. a)Order of certiorari quashing the decision of a servant or agent of the Minister dated 11th August 2022 affirming the refusal of NL’s application for a Visa to take up employment in the State and imposing a five-year ban on further application; (
  2. b)Such Declaration(
  3. s)of the legal rights and/or legal position of NL situated as this Honourable Court shall consider appropriate.” 10. The legal grounds for the challenge were set out in the statement of grounds. NL maintained that the August decision relied on a number of grounds not referred to in the June letter, namely: (
  4. a)A communication with NL’s employer in China, from which alleged inconsistencies arose; (
  5. b)The authenticity of Cloud Intersoft Ltd based on concerns surrounding the company’s website, headed paper and other submitted documents; (
  6. c)Concerns regarding NL’s current employment and alleged inconsistencies in relation to salary payments. 11. It was further stated that the Minister’s decision to impose a five-year ban on making further Visa applications was “arbitrary, irrational and lacked proportionality”. 12. Subsequently, the second named respondent, the Minister for Business, Enterprise and Innovation was joined to the proceedings and the following order was sought: “An order of certiorari quashing the decision of a servant or agent of the second named respondent dated 2 December 2022 revoking the applicant’s work permit on foot of the first named applicant’s decision dated 11 August 2022.” 13. The statement of opposition made the preliminary objection: – -6“The applicant is attempting to mount a collateral attack in respect of the decision of the first named respondent on the 24th June 2022 despite leave being granted only in respect of the decision of 11th August 2022…” Judgment of the High Court: 14. In a careful and detailed judgment the High Court granted NL an order of certiorari quashing the decision of the Minister dated 11 August 2022 imposing a five-year exclusion period, directing that the matter be reconsidered and that a fresh decision be made by a new decision-maker. 15. The trial judge upheld the preliminary objection of the Minister, stating: “30. While the primary focus in this case is the August decision upholding the fiveyear exclusion period, the applicant has also challenged in submissions the substantive refusal of the visa application communicated in the June letter. Having examined the applicant’s amended statement of grounds, it is clear that the only relief sought is an order of certiorari to quash the decision of 11th August 2022…. No relief is sought with respect to the June decision, and the applicant has not been granted leave to challenge that decision. I agree with the respondent’s objection in that regard. Therefore, it seems to me that the only decision properly under challenge in these proceedings is the August decision upholding the five-year exclusion period.” 16. In considering the nature and extent of the Minister’s powers in granting or denying visas the trial judge stated: “35. In RMR v Minister for Justice Equality and Law Reform [2009] IEHC 279 Clarke J. made it clear that the Minister is under no legal obligation to grant a visa, and that the grant or refusal of a visa is entirely a matter of the Minister’s discretion. It is for the applicant to convince the Minister that he or she should be granted a -7visa. Essentially, Government policy determines which foreign nationals require visas to visit, transit, or work in the State. This is an aspect of the inherent executive power of the State. It is also well established that the mere denial of a visa does not establish a breach of rights.” 17. In addition to underlining the limited scope for challenging a decision of the Minister to refuse a Visa, the trial judge referred to the heavy onus on a person, such as NL, in challenging the decision of August 2022: – “36. Case law makes clear that the onus of proof is on an applicant when making a visa application. Generally, the applicant must put their best foot forward and it is not the job of the respondent to chase up supporting documentation. Burns J. stated in Luqman that there is an onus on an applicant for a visa of this nature to make his application with all of the supporting documentation. There is no onus on the respondent to advise an applicant on their application with respect to deficient information or material. Faherty J. made similar observations in K.N. and Others v Minister for Justice and Equality [2017] IEHC 527 at para. 55.” 18. However, the trial judge placed much emphasis on the fact what was in issue in these proceedings was not the refusal of a Visa but rather the imposition of a five-year exclusion period. Such an imposition was more injurious to NL in terms of character and reputation than a decision to refuse a Visa. Thus a decision to impose the five-year exclusion period, in the view of the trial judge, required that the Minister adopt fair procedures. 19. The court below considered, in some detail, the letters of June and August and the solicitor’s letter of July 2022. The August letter clearly contained significantly more detail than the June letter. The concerns of the Minister as to the status of Cloud Intersoft were spelt out in some detail. There was no such detail in the June letter. Further, inconsistencies noted in relation to the manner of payment of NL’s salary in her then -8employment in China did not feature in the June letter. The trial judge concluded at para. 60: “(
  7. vi)The specific allegation the subject of ground

(1)above – namely that inconsistencies were noted in relation to salary payments by the applicant’s current Chinese employer – did not feature in the earlier June letter or in the notes of the telephone interview from 8th June, and appeared for the first time in the impugned August decision. Therefore, the applicant was not on notice of this specific allegation prior to the final decision being made. (vii) From the run of the correspondence, the respondent should have been aware that the applicant believed that the reference to “inconsistencies in the information presented by both the applicant and the employer” was a reference to Cloud Intersoft Limited, and not to her current employer in China. The respondent should also have been aware that it was the applicant’s position that, arising from the June letter, this allegation was mistaken or misconceived, because the Visa Officer had not, in fact, been in contact with Cloud Intersoft. The applicant was not put right about this at any stage prior to the final decision being made.” 20. The trial judge was critical of the Minister in two further respects. Firstly, the trial judge criticised the failure on the part of the Minister to identify what “basic elements” of the website and headed notepaper of Cloud Intersoft were missing or questionable. Secondly, on the length of the exclusion period the trial the judge stated: “58. … nor does the letter explain why the full extent of the five-year period was imposed, as distinct from any lesser period. In my view it is unsatisfactory that the court has not been provided with even basic information as to the criteria for imposing an exclusion period, or for determining its duration. It might be thought, for instance, that lesser infractions might warrant a lesser period being imposed, -9however we simply do not know because the relevant criteria have not been identified.” 21. The issue of severance was also considered. The August letter identified grounds for the five-year exclusion period other than issues with the Cloud Intersoft website, its headed notepaper and supporting documentation. However, in the circumstances of the case the trial judge was of the view that severance was not available, stating: – “59. In any event, what is clear from the correspondence is that, based on the grounds identified in the August letter, including the unidentified concerns surrounding the company’s website, headed paper and other submitted documents, a decision was made to ban the applicant from making further visa applications, and the maximum five-year exclusion period was imposed. Since the character of the impugned order is more potent and far-reaching than a mere refusal of the Visa, and its implications more enduring and serious, it is impossible to avoid the conclusion that the infirm ground may have affected the final outcome. Certainly, there is a strong possibility that the infirm ground may have been material not only to the decision in principle to impose a ban, but also as to the decision as to the ban’s duration.” 22. The trial judge was satisfied that there was no basis to quash the decision to revoke NL’s work permit by the second named respondent as the decision to refuse the Visa remained extant. Notice of Appeal: 23. Sixteen grounds of appeal were advanced by the Minister. These grounds required the court to consider the following issues: – (
  1. i)arising from the contents of the June and August letters, whether the Minister was obliged to and failed to apply fair procedures; - 10 (
  2. ii)whether the trial judge was correct in the significance he attached to the imposition of an exclusion period as opposed to a decision to deny a Visa (iii) whether the Minister was entitled to reach the decision without taking steps to contact NL’s proposed employer in Ireland; (
  3. iv)whether or not there was a legal requirement for the Minister to furnish the court with criteria to be applied in determining the imposition or length of an exclusion period; (
  4. v)whether the trial judge erred in law in applying the test for severance. Consideration of Appeal: 24. It is to be noted that there is no cross-appeal. Thus the decision of the trial judge upholding the Minister’s preliminary objection (see para. 15 above) is not challenged. Also, the trial judge’s decision concerning the revoking of the work permit is not challenged. It follows that what is in issue in the appeal is the imposition and length of the exclusionary period. 25. The imposition of a five-year ban on making further Visa applications is a penalty. What is being penalised is “the provision of false/misleading information” by NL as set out in the June letter. The imposition of such a penalty clearly has reputational damage for NL. I agree with the trial judge where he stated: – “41. An important matter of context, that in my view has a particular bearing on the fair procedures issue in the present case, is the fact that we are not dealing here with a visa refusal simpliciter. Rather, the August decision of the respondent goes much further and effectively bans the applicant from making any further Visa applications for a period of five years. An order of this nature has implications for a person’s reputation and may have long-term administrative implications affecting a - 11 person’s Visa status into the future. In my view, the impugned findings connote imputations of fraud or the usage of misleading documentation”. 26. The Minister is required to follow fair procedures before the imposition of the exclusionary period. This much is clear from the June letter which states: – “Prior to a decision being made on this you have 14 days to submit any reasons why this exclusion period should not be made against you...”. 27. For NL to submit “reasons”, she has to be aware of the basis upon which the Minister is proposing to impose the exclusionary period. As to whether or not NL was aware of the “basis” requires an examination, as was carried out by the trial judge, of both the June and August letters. 28. The trial judge was correct to identify deficiencies in the June letter. Firstly, concerns about the website, headed notepaper and other documentation of Cloud Intersoft, referred to in the August letter, did not feature in the June letter. Secondly, concerns which the Minister had over NL’s then-current employment (in particular the method of salary payments) were, unlike the August letter, only conveyed in general terms in the June letter. 29. In giving the reasons for the imposition of the five-year exclusion period the Minister made specific reference to what, she saw, as being serious deficiencies in the information provided by NL about her proposed employer in Ireland and the manner in which her salary was paid by her then-employer in China. However, NL, prior to the imposition of the exclusion period was not given an opportunity to explain or comment on these issues. I am in agreement with the trial judge that this amounted to a breach of fair procedures. 30. On receipt of the June letter NL instructed a firm of solicitors who wrote to the Minister by letters dated 5 and 6 July 2022. These letters set out NL’s submissions as to why the proposed exclusion period should not be imposed. It would appear from these letters that NL, and thus her solicitor, were under the mistaken impression that the - 12 reference in the June letter to “inconsistencies” in the information provided, were references to Cloud Intersoft rather than her then employer in China. 31. The trial judge concluded: “37. The main points pressed by the applicant under the fair procedures heading are, firstly, that she has no way of knowing the basis of the respondent’s concerns surrounding Cloud Intersoft’s website and headed paper. Secondly, in the circumstances of the case, fair procedures required that the applicant should have been alerted to these concerns and given an opportunity to address them. Thirdly, from the run of the correspondence, it should have been clear to the respondent that the applicant mistakenly believed that the respondent's references in the June letter to ‘inconsistencies in the information presented by both the applicant and the employer’ referred to her prospective Irish employer, whom the applicant insisted had not been contacted. Since this was the entire thrust of the solicitor’s letters of the 5 and 6 July 2022 the respondent was under a duty to disabuse the applicant of mistaken understanding and put her on the right road before issuing the final decision”. 32. In reaching this conclusion the trial judge referred to the decision of Faherty J. in AA, WM and MA v. the Minister for Justice [2024] IECA 57. In that case, the court confirmed the general principle that there is no obligation, per se, on the Minister to give advance warning to an applicant about perceived deficiencies or contradictions in the documents submitted with a Visa application. However, in the circumstances of AA, Faherty J. found that a failure by the Minister, prior to issuing the refusal decision, to highlight deficiencies in the applicant’s qualification and work experience in relation to prospective employment deprived the applicant of any real or effective opportunity to - 13 address these perceived inadequacies. I am of the view that such circumstances arise in the instant case. 33. The trial judge was correct in concluding that it ought to have been clear to the Minister from the said solicitor’s letters that NL had misinterpreted the June letter. In any event, none of this would have arisen had the Minister provided to NL the detailed information contained in the August letter when seeking submissions as to why a five-year exclusion period should not be imposed. 34. The trial judge was critical of the Minister for failing to provide the criteria to be applied for the imposition of a period of exclusion or determining its length. He stated at para. 58: – “… Nor does the letter explain why the full extent of the five-year period was imposed, as distinct from any lesser period. In my view it is unsatisfactory that the court has not been provided with even basic information as to the criteria for imposing an exclusion period, or for determining its duration. It might be thought, for instance, that lesser infractions might warrant a lesser period being imposed, however we simply do not know because the relevant criteria have not been identified”. I would not share this criticism. 35. I am not of the view that the Minister was obliged to provide such criteria. As a matter of general principle, it seems to me that in requiring such criteria the court was, in effect, directing the Minister to provide rules or guidelines. This approach risks crossing the Constitutional boundary between the courts and the executive. In any event, the judgment of Ferriter J. in Kiongera v. the Minister for Justice [2021] IEHC 755 is of assistance. - 14 36. In Kiongera, the applicant was a citizen of Kenya who befriended the second named applicant (“Ms. Sheehy”) whilst she was in Kenya. Ms. Sheehy’s mother died in April 2019 and Mr. Kiongera was granted a temporary Visa to travel to Ireland for the funeral. However, he could not attend owing to prior commitments. Later that year Mr Kiongera came to Ireland for a period of six weeks returning to Kenya when his Visa had expired. 37. Subsequently that year, 2019, Mr. Kiongera applied for a Visa which was granted to him to visit Ireland for the period 17 November 2019 to 10 February 2020. However, on his arrival at Dublin Airport he was denied entry upon discovery of the fact that the passport he was travelling on had different details to those which appeared on a previous Visa application. In the previous month, October 2019, Mr. Kiongera had completed a “pre-clearance application for de facto partner of an Irish national” and submitted it to the Department of Justice. The concluding section of the form contained the following declaration: – “I understand that any false or misleading information, or false supporting documentation, may result in the refusal of my application without the option to appeal, and that this may result in me being prevented from making further preclearance applications for a period of up to 5 years.” A five-year ban was imposed. This ban was challenged in judicial review proceedings. 38. In the course of the hearing in the Kiongera case reliance was placed on the following passage from the judgment of Peart J. in Balc v. the Minister for Justice [2018] IECA 76, at para. 124: – “… the length of any such exclusion period is at the discretion of the Minister. Whether that is the case the Minister must provide reasons for the decision made. The person affected to such a significant degree is entitled to know why he is excluded for a period of five years, rather than some lesser period. Indeed, it is not - 15 necessary to include an exclusion period at all… The person is entitled to know why the exclusion order was considered necessary. If he does not know the reasons for these decisions it is impossible for him to challenge their legality”. 39. Ferriter J. was of the view that Balc was not of assistance to Mr. Kiongera stating: – "50. Quite apart from the fact that Balc was a case concerning a statutory decision in relation to an EU national, in my view, the decision in Balc does not advance the applicant’s case. The basis of the decision in Balc was that the relevant applicant there had been provided with no reasons as to why an exclusion order was considered necessary. The facts here are wholly different. This is not a case where it is impossible for the applicant to challenge the legality of the decision because he does not know that the basis for the decision was, or where no reasons at all were given in relation to the upholding of a five-year preclusion condition or where the case made by the applicant was ignored or not engaged with”. Ferriter J. then listed the false information that had been provided by Mr. Kiongera. 40. The trial judge sought to distinguish the instant case from Kiongera on the basis that what was involved in that case was a “clear-cut finding that bogus or fraudulent documentation was in fact used” (para. 48). 41. I would not be in agreement with the trial judge on this. In my view, the August letter makes very clear that, rightly or wrongly, false information was provided. It was on this basis that the Minister exercised her discretion to impose a five-year ban. 42. The decision of the Supreme Court in DE v. the Minister for Justice and Equality and Ors [2018] IESC 16 is instructive concerning the issue of the provision of criteria/guidelines in the area of immigration. This case related to a challenge to the refusal to revoke a deportation order in respect of an infant applicant on the basis of, inter - 16 alia, serious medical grounds. On the issue of the absence of guidelines/criteria Clarke CJ. stated : – “6.10 While it may be at least arguable that there could be circumstances in which a decision-maker such as the Minister might be required to set out the criteria by reference to which decisions of a particular type were intended to be made, I do not consider that it is arguable that a decision involving the very general type of residual discretion with which the Minister is concerned on an application such as this (in the absence of a contention that a legal entitlement arises) can place an obligation on the Minister to, as it were, narrow down the field by defining criteria. on the other hand, I am prepared to accept that it is arguable that the Minister must make details available of any criteria or guidance which are actually adopted”. 43. By reason of the foregoing, I would not uphold so much of the judgment of the trial judge as found that the Minister was legally obliged to provide criteria and/or guidelines in respect of both the imposition and the length of the exclusion period. 44. Turning now to the issue of severance. The August letter identifies other grounds for the five-year ban beyond the stated difficulties with the company website, headed paper and other documents. The question arises as to whether these stated difficulties could be severed so enabling the decision to remain based on other grounds. This requires the court to reach a conclusion as to whether or not issues concerning the company website, headed paper and other documents were central to the decision to impose a five-year ban. The trial judge referred to the decision of Humphreys J. in Olakunori v. Minister for Justice, Equality and Law Reform [2016] IEHC 473 which involved judicial review proceedings challenging a visa decision. Humphreys J. stated: “– 64. (
  5. i)Section 5 of the Illegal Immigrants (Trafficking) Act 2000 does not apply to a visa refusal; - 17 – – (
  6. x)If in a particular decision the correct test is not articulated in a precisely legal correct manner, that is not fatal as long as the correct test is applied in substance; (
  7. xi)The weight to be attached to various factors is quintessentially a matter for the decision-maker; – – – (xiii) Where a decision is based on a number of independent grounds each capable of supporting the result, the decision will not be quashed if any one or more grounds stand unaffected by any error in any impugned grounds”. 45. Looking at the contents of the August letter, of which NL did not have sufficient notice, it seems to me that the issues concerning the status of Cloud Intersoft were central to the imposition of the five-year exclusion period. The said letter characterised these as “serious concerns”. Though the Minister had concerns concerning NL's then employment in China, they were not characterised as being “serious”. Thus, I believe it is fair to conclude that in the absence of these “serious concerns”, a five-year exclusionary period may not have been imposed. It follows that the decision of the Minister cannot be rescued by severance. 46. More recently, the Supreme Court considered the issue of severance in BD, TD, and Ors v. International Protection Appeals Tribunal and the Minister for Justice [2025] IESC 38. In this case the International Protection Appeals Tribunal (the “IPAT”) found that (
  8. a)BD and others had shown a well-founded fear of prosecution but (
  9. b)they were able to avail of state protection. It was accepted by all parties that conclusion (
  10. b)was flawed, and that BD was entitled to an order of certiorari. The dispute arose as to whether the order would apply only to the flawed part of the decision with the effect that when the decision was reconsidered, BD would retain the benefit of the finding in respect of fear of persecution. The Supreme Court held that in the circumstances the doctrine of severance did not apply. In giving the judgment of the court O'Malley J. stated: – - 18 “85. The decision in question here involved the assessment of two central factors. Firstly, it was necessary to determine whether or not there was a well-founded fear of persecution. The IPAT accepted that there was. The second question was whether or not the respondents were unable or, owing to such fear, unwilling to avail themselves of the protection of their national country. 86. I have come to the view that the state parties are correct in saying that the relationship between the two elements to be assessed is too close to separate them in the fashion proposed by the Court of Appeal….”. 47. Though this judgment was delivered post the instant judgment and was not cited in submissions to this Court, it seems to me that the trial judge adopted the correct course in identifying and considering the relative importance of the reasons for the imposition of the five-year ban. He was correct in concluding that issues concerning Cloud Intersoft's website, headed notepaper and other documents were central to the making of the impugned decision. 48. As the appeal has been dismissed the provisional view of the court is that NL is entitled to her costs. Should the Minister wish to dispute this, he may do by furnishing written submissions (not more than 1500 words) within 10 days of the delivery of this judgement. Should the respondent wish to reply to these submissions she may do so (again, not more than 1500 words) within 10 days thereafter. 49. As this judgment is being delivered electronically, Whelan and Binchy JJ. have authorised me to record their agreement with it.

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