Posts

SUPREME COURT TO HEAR APPEAL ON A DECISION CONCERNING THE DEFINITION OF “CHILD” IN FAMILY REUNIFICATION LAW

The Supreme Court is set to hear an appeal from the State over the definition of “child” as referred to in the International Protection Act 2015.

Section 56 the 2015 International Protection Act sets down the procedure for refugees and the holders of subsidiary protection to make an application for family reunification.

The State’s appeal specifically concerns Section 56.9(d) which provides as follows:

“(9) In this section… “member of a family” means in relation to the sponsor-

(d) a child of the sponsor who, on the date of the application under subsection 1 is under the age of 18 years and is not married.”

In 2018, Mr Justice Barrett ruled that non-biological or adopted children are eligible for family reunification. Delivered in May, the High Court decision involved ‘Mr X’ who held subsidiary protection in Ireland and subsequently applied for family reunification for a 14-year-old boy and 13-year-old girl to whom he was the sole guardian of.

After refusing to undertake a DNA test, as requested by the Minister, the application was refused in 2017. Mr X made a second application which was also refused and therefore brought judicial review proceedings with the aim of quashing the Minister’s refusal.

In his decision, Mr Justice Barrett acknowledged that “there is a “wide diversity” of familial structures and the 2015 Act does not exclude non-biological relationships. He further found that a “cookie cutter” definition of children which only recognised biological children, “would doubtless be easier for the State to police…but it is not what the Act provides”. Mr Justice Barrett’s decision acknowledged that it is not always a straightforward task in defining who is a child of someone. He therefore directed the Minister for reconsideration of the matter.

Chief Justice Frank Clarke, Ms Justice Iseult O’Malley and Ms Justice Mary Irvine have accepted a “leapfrog” appeal by the Minister and State against the High Court decision. This means that the State’s appeal will bypass the Court of Appeal and be directly heard by the Supreme Court.

The judges have emphasised that the definition of “child” in relation to the 2015 Act has the potential to relate to any case regarding non-biological minors who are claimed to be the child of person who has international protection.

The question as to which minors may benefit from family reunification is “a matter of general public importance”, they have underscored.

A hearing date for the appeal has not yet been fixed.

 

UPDATE ON VISA DELAYS – ATIF AND MAHMOOD CASE

UPDATE – A few months ago, we published a blog regarding the considerable delays in the processing of EUTR visas for the family members of EU citizens. In Atif and Mahmood, several applicants challenged the legality of such delays.

In Atif and Mahmood, the High Court in Ireland ruled in favour of the applicants indicating that any delay over six months in processing visa applications was too long. However, the Minister appealed this decision to the Court of Appeals in Ireland. In order to make a decision in this matter, the Court of Appeals referred to the European Court of Justice (ECJ) for guidance.

Specifically, the Court of Appeals sought a preliminary ruling on how to interpret Article 5(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004. This article addresses the free movement rights of EU citizens and their families and requires the Member State “to issue a visa as quickly as possible to the spouse and family members of a Union citizen exercising free movement rights.”

The Court of Appeals set forth these questions to the ECJ for preliminary ruling:

  1. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when the delays in processing an application for EUTR visas for the family members of EU citizens exceed 12 months?
  2. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when delays in processing are due to ensuring that the application is not fraudulent or an abuse of rights, for instance, a marriage of convenience?
  3. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when delays in processing are due to background and security checks on applicants coming from third world countries for security purposes?
  4. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when delays in processing are due to a “a sudden and unanticipated surge in such applications coming from certain third countries which are thought to present real security concerns”?

To the above questions, the ECJ has made a decision regarding this matter.

“Since, however, all of the visa applications at issue in the main proceedings were the subject of negative decisions, which were contested by means of court actions which were not upheld, and since the referring court has noted that the Court’s answer can no longer benefit the applicants in the main proceedings, as is clear from paragraphs 18 and 20 of the present order, the dispute in the main proceedings has become devoid of purpose and, consequently, an answer to the questions referred appears to be no longer necessary.”

Since all of the applications in question had already been determined, the ECJ deferred from making a decision in this matter. Essentially, the ECJ determined that issuing a decision in this case would no longer be beneficial to the applicants and therefore there is no point in pursuing the matter further. Thus, the issue of how to interpret Article 5(2) of Directive 2004/38/EC in regard to visa delays remains unresolved.

Read more about visa delays in our full blog here.

Read the full decision in this matter  here.

FAMILY REUNIFICATION FOR NATURALIZED REFUGEES

On the 26th February 2018, Mr Justice Humphries delivered his judgement in the three test cases concerning the Minister of Justice and Equality’s recent decisions to refuse family reunification to naturalized refugees.

The cases were chosen to represent a larger number of cases currently in the High Court, all challenging the Minister of Justice and Equality’s recent decisions to refuse family reunification to naturalized refugees. These decisions were issued by the Minister contrast to the former policy to accept that naturalized refugees continued to have the rights to family reunification pursuant to the 1996 Refugee Act. An internal policy change implemented by the Minister, without notice to the applicants, resulted in the refusal of a large number of applications in circumstances where they would have previously been granted family reunification.

The Minister argued that a refugee ceases to be a refugee on acquiring Irish citizenship pursuant the definition of a refugee in national and international law, and a formal statutory provision for the revocation of their refugee status is not required.

The applicants argued that a formal withdrawal or cessation of refugee status is required by statutory provision, and while this is implemented in the International Protection Act 2015, it was not implemented under the Refugee Act 1996 as amended.

Mr Justice Humphries found in favour of the State, indicating that the cessation of refugee status is declaratory in nature, and refugees who become naturalized automatically cease to be a refugee, thus losing their refugee rights to family reunification.

The High Court decision is now the subject of an appeal to the Court of Appeal. We will post further updates on this case when there are any developments in the Court of Appeal.

Berkeley Solicitors