The recent High Court judgment of Mr Justice Barrett in the joined cases of A. vs The Minister for Justice and Equality and S. and S. vs. The Minister for Justice and Equality has held as unconstitutional the statutory provision excluding family reunification rights to the spouses and civil partners of refugees whose marriage took place after the granting of refugee status.
This is a very favorable development for the holders of refugee status or subsidiary protection who wish to apply for family reunification for their spouse/civil partner but who were not married at the time that they made their application for protection in the State.
These joined cases raised the question, as to whether s. 56(9)(a) of the International Protection Act 2015 is unconstitutional and/or incompatible with the European Convention of Human Rights.
The context of this judgements is that previously, under the Refugee Act 1996, now repealed, refugees were eligible for family reunification with their spouse whether or not they had been married at the time at which they made their application for protection in the State.
Under the more recent International Protection Act 2015, section 56(9)(a) and (b) provides that holders of refugee status and subsidiary protection are only eligible for family reunification with their spouse where their marriage took place prior to the date of their application for protection in the State.
In his judgment, Mr Justice Barrett declared that Section 56(9)(a) is “repugnant to the provisions of the Constitution” and is therefore “invalid and does not have the force of law.”
The Court found that there was no objective and reasonable justification in this context for a differentiation in treatment between couples married pre-flight to those married post-flight, referring to the European Court of Human Rights case Hode and Abdi v. UK, in which that Court had objected to differentiation in treatment on the basis of the time of marriage.
The Judge went on to state that although it was no longer necessary as the section had already been declared unconstitutional, the court would also have declared that Section 56(9)(a) is incompatible with the State’s obligation under Article 14 ECHR read together with Article 8 ECHR, the latter protecting the rights to family and private life.
The Court in this ruling has notably departed from the judgment of RC or VB v. The Minister for Justice  IEHC 55, which dealt with a similar question.
This judgment has significant implications for refugees and beneficiaries of subsidiary protection who have applied for their spouse or civil partner to be granted family reunification and who have been refused on the basis that their marriage took place after they made their application for protection in the State.
The judgement also opens to the door for refugees who failed to submit an application for family reunification for their spouse or civil partner under the 2015 Act, on the basis that they believed they were not eligible under Section 56 (9) (a).
If you believe this may affect you please contact the office with your questions and we will seek to assist you in the next steps.