Tag Archive for: family reunification

REVISED POLICY DOCUMENT ON NON-EEA FAMILY REUNIFICATION – PUBLISHED 26TH NOVEMBER 2025

The Department of Justice, Home Affairs and Migration published a new Policy Document on Non-EEA Family Reunification on the 26th November 2025 (‘the 2025 Policy Document’). This has replaced the previous version published in December 2016.

The 2025 Policy Document sets out established criteria to be met to facilitate family reunification for certain categories of persons who are legally resident in the State. There are a number of key changes in this revised version of the Policy Document, which we have provided an overview of below.

Categories of Family Members

The 2025 Policy Document now outlines three categories of family members in respect of whom applications for family reunification can be made. The categories are Nuclear Family (which consists of spouse, civil partner, and unmarried children under the age of 18), Dependent Parents and Dependant adult children.

Notably, dependent children, aged between 18-23 years old and who are in full-time education are no longer considered to be members of the Nuclear Family, as was the case in the previous 2016 version of the Policy Document.

To fit within the category of Dependant adult children under the 2025 Policy Document, the adult child must be “dependent on the care of the parent sponsor for their subsistence due to a serious medical or psychological condition that makes independent life unsustainable.”

Immigration Status of Sponsor

There are three separate categories of eligible sponsors under the 2025 Policy Document.

Category A Sponsor – includes Irish citizens and persons who have been granted refugee status or subsidiary protection, who are not eligible to submit an application for family reunification pursuant to s.56 and s.57 of the International Protection Act 2015.

Category A sponsors are eligible to submit an application for family reunification at any time.

Category B Sponsor – includes Investors with a permission under the IIP, Entrepreneurs with a permission under the STEP, CSEP holders, Researchers on Hosting Agreements, ISD-approved scholarship programme students, Intra-company transferees, PhD student permission holders, Full-time non-locum doctors in employment, and Ministers of Religion under the relevant Scheme.

Category B sponsors are eligible to immediate family reunification with nuclear family members. There is a waiting period of 2 years for category B sponsors to submit applications for dependant parents or dependant adult children.

Category C Sponsor – includes General Employment Permit holders, Reactivation Employment Permit holders, and Stamp 4 holders.

There is a waiting period of 12 months on an eligible permission for Category C Sponsors to submit an application for family reunification with nuclear family members, and 5 years in respect of any other family members.

Financial Thresholds

The 2025 Policy Document confirms that the Minister will consider the income of “only one individual sponsor” to determine whether the relevant required financial threshold is met to be eligible to sponsor an application for family reunification.

Category A Sponsors are required to have a cumulative gross income of €40,000 over the three-year period prior to the application, to sponsor an application for their spouse, civil partner or de facto partner.

Under the 2025 Policy Document there is no financial threshold to be met for a Category B Sponsor to sponsor an application for their spouse, civil partner or de facto partner, as they are eligible for immediate family reunification, prior to any finances being accrued.

Category C Sponsors with no children are required to have earned a gross annual income of €30,000 in the year prior to the application, to sponsor an application for their spouse, civil partner or de facto partner. This is a change to the previous policy of a requirement of an annual gross income of €30,000 in the two years prior to the application.

As was previously the case, the financial threshold that a Category C Sponsor must meet to apply for family reunification increases dependent on the number of children that the sponsor has. In this instance, the net income of the sponsor must be higher than that applied by the Department of Social Protection in assessing eligibility for the Working Family Payment (WFP). The required annual net and gross income is outlined in Appendix D of the 2025 Policy Document.

Dependent Adult Relative Applications

For all categories of sponsors, the financial threshold applied to Dependent Adult Relative applications is a gross annual income in excess of 185% of the average yearly earnings in Ireland for one relative and 250% thereof for two relatives, in each of the three years prior to the application. This percentage will be increased for subsequent adult dependent family members. The minimum gross annual salary for these applications is outlined in Appendix D of the 2025 Policy Document.

Furthermore, we highlight that pursuant to the 2025 Policy Document, in the processing of all applications for family reunification, the Minister will rigorously assess the Sponsor’s ability to financially support and accommodate the Applicant in the State.

The 2026 Policy Document is available here.

Berkeley Solicitors are available to provide advice in respect of all matters relating to the family reunification application process.

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

UPDATE TO RE-ENTRY VISA APPLICATION PROCESS

ONGOING DELAYS IN VISA PROCESSING FOR JOIN FAMILY VISA APPLICATIONS

There are very substantial delays in the processing of visas and preclearance for family members of Irish, UK and Non-EEA nationals in the State.

This is causing undue hardship and is causing long term separation of families, often including minor children being separated from their parents.

The Minister for Justice’s own business target is to process visa applications for immediate family members of Category A sponsors, including Irish citizens and Critical Skills Employment Permit holders within 6 months and for other sponsors within 12 months.

For visas processed in the Dublin visa office at present these targets are not being met and processing times are well in excess of these business targets.

The Department of Justice has a specific policy on their visa decisions page which states that in very narrow circumstances a request for expedited visa processing may be facilitated, such as where a family member has been hospitalised, there is a life-threatening medical emergency, or in the circumstances of bereavement of an immediate family member.

We say substantial efforts should be made by the Minister to ensure that the business targets of 6 – 12 months are being met and to reduce the backlogs in the processing of join family visa applications in the Dublin visa office.

The Department of Justice has established a Visa Desk in South Africa to manage visa applications from residents of South Africa. The desk does not process preclearance applications or applications submitted pursuant to Directive 2004/.38/EC and the European Communities (Free Movement of Persons) Regulations 2015- those applications are transferred to Dublin visa office for processing.

Processing times in the South Africa Visa Desk are stated to be approximately 6 months for immediate family members of Irish Citizens or Critical Skills Employment Permit holders and 12 months for category B sponsors, such as a General Employment Permit holders of other Stamp 4 or Stamp 1 holders.

The South Africa visa desk outlines that expedited processing will only be considered in the case of serious travel emergencies.

For applications processed by the South Africa Visa Desk the published guidelines in respect of submitting a visa appeal is to submit the appeal via a VAC or VFS Centre. This differs from visas not processed by the South Africa Visa Desk, where the standard procedure is to submit the appeal directly to the visa office or Embassy that issued the decision, with the address to submit the appeal being stated on the visa decision letter itself.

Berkeley Solicitors is highly experienced in making join family visa applications and appeals, please feel free to contact our office if you wish to make such an application or you and your family are experiencing a delay in the processing of your visa application.

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

UPDATE TO RE-ENTRY VISA APPLICATION PROCESS

Lengthy delays in the processing of Join Family visas  

As of the 29th of April 2025, the Immigration Service Delivery have updated their visa decisions page outlining which visa applications and visa appeals are currently being processed by the Dublin visa office.

A notable change is that the dates of join family visa applications currently being processed has been updated. The most recent decision made on a join family visa application, where the sponsor is in category B, was issued for an application received by the Visa Office on the 22nd of November 2023. Appeals of the same category received on the 7th of December 2022 are also now being issued with decisions.

For join family visa applications where the sponsor is in Category A, or an Irish citizen, the Department has most recently issued decisions on applications received on the 7th of August 2023. Regarding appeals of applications falling into the same category, those received on the 2nd of February 2023 have been issued with decisions.

It is unusual that applications from Category B sponsors are being processed more expeditiously than those from Category A sponsors.

The ISD business targets for the processing of Join family visa applications for sponsors in Category A is 6 months and for Category B is 12 months. These business targets are not being met and the delay in the processing of join family visas has become a notable and stressful concern for clients.

Furthermore, it is concerning that the page had previously stated that applications received on 23rd July 2023 were being processed. This processing time was in place for over six months. This would indicate a complete stalling of the processing of applications, or that extremely few applications, if any, were processed in this time frame.

This delay in processing of visas for families is a source of concern. It is resulting in long term separation of families, including children and is a source of huge stress to our clients.

For more information on the processing times for visa applications being assessed in Dublin, please see the link below:

https://www.irishimmigration.ie/visa-decisions/

Berkeley Solicitors is available to provide advice and support for anyone commencing the Visa application process.

If you have any queriers relating to the processing time for visa applications please contact Berkeley Solicitors to arrange a consultation with one of our experienced legal advisor.

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

CLIENTS OF BERKELEY SOLICITORS GRANTED LEAVE TO APPEAL TO THE SUPREME COURT

CLIENTS OF BERKELEY SOLICITORS GRANTED LEAVE TO APPEAL TO THE SUPREME COURT

Clients of Berkeley Solicitors have received a positive determination granting leave to appeal to the Supreme Court to challenge the Court of Appeal decision FSH and Others v Minister for Justice [2024] IECA 44.

The case concerns a Somali woman residing in Ireland by way of family reunification under S.18(4) of the Refugee Act 1996.

The applicant subsequently applied for her minor children to join her in the State pursuant to the Policy Document on Non-EEA Family Reunification, and in particular paragraph 1.12 which states as follows:

“While this document sets down guidelines for the processing of cases, it is intended that decision makers will retain the discretion to grant family reunification in cases that on the face of it do not appear to meet the requirements of the policy. This is to allow the system to deal with those rare cases that present an exceptional set of circumstances, normally humanitarian, that would suggest that the appropriate and proportionate decision should be positive.”

The visa applications were refused.

The applicant subsequently challenged the decision to refuse her application by way of Judicial Review proceedings in the High Court. The Court quashed the Minister’s decision to refuse the visa applications for the four minor applicants.

This judgement was subsequently appealed to the Court of Appeal, and the judgement of the High Court was overturned.

The applicant applied for leave to appeal to the Supreme Court for an order quashing the order of the Court of Appeal.

The Supreme Court found that the case does raise matters of general public importance and granted leave to appeal to the Supreme Court. The Supreme Court found as follows:

“The Court is of the opinion that the proposed appeal does raise matters of general public importance relating to the operation of the Minister’s policy on Non-EEA Family Reunification, and in particular, the precise nature of the exceptional circumstances test, how that test is to be applied and the standard of review to be applied when decisions made by the Minister pursuant to the policy are challenged by way of judicial review. These issues may arise in a number of other cases, and it is in the public interest to obtain further clarity, particularly given the conflicting approaches in the High Court and the Court below.”

We are grateful the appeal has been accepted and that a Supreme Court judgement will soon bring clarity to the exceptional circumstances test.

CLIENTS OF BERKELEY SOLICITORS WIN THEIR CASE BEFORE THE HIGH COURT IN H AND ORS V MINISTER FOR JUSTICE 2022 No 553 JR

CLIENTS OF BERKELEY SOLICITORS WIN THEIR CASE BEFORE THE HIGH COURT IN H AND ORS V MINISTER FOR JUSTICE 2022 No 553 JR

Berkeley Solicitors would like to congratulate our client who was successful in her proceedings today.
The applicant is a Somali woman who issued proceedings to challenge the decision of the Minister of Justice refusing long stay visas for her four minor children to join her in Ireland.

The case was brought by way of Judicial Review and was heard by Mr Justice Barr.

In issuing his judgment, Mr Justice Barr found that the key issue in this case was the exceptional humanitarian circumstances that were at play. Justice Barr found that ‘there was no evidence that the decision maker engaged in any real way’ with such factors. Justice Barr submitted throughout his judgment that the respondent failed to take into account ‘the very significant personal dilemma that faced by (the applicant) at the time’ as well as the state of deep political and social unrest faced by citizens in Somalia.

The case concerned a Somali woman who had fled to Ireland to join her sister by way of family reunification under S.18(4) of the Refugee Act 1996. The applicant subsequently applied for her minor children to join her in the State pursuant to the Policy Document on Non-EEA Family Reunification, however her application, and appeal on this decision were refused.

The respondent submitted there was insufficient evidence to corroborate a familial link between the mother and the minor applicants, stating that in entering Ireland:

‘she relinquished her role as the primary caregiver, with the knowledge that the Family Reunification appeal may be refused.’

Mr Justice Barr submitted that such a finding by the Minister was harsh, unfair and irrational.

The respondents further submitted that the applicant was not an eligible sponsor for the visa applications for her children as she had not resided for longer than one year in the State as required by paragraph 16.4 of the Policy Document.

Mr Justice Barr submitted that this case is of an exceptional humanitarian nature and therefore the policy can be departed from in such circumstances pursuant to paragraph 1.12 of the Policy Document:

‘While this document sets down guidelines for the processing of cases, it is intended that decision makers will retain the discretion to grant family reunification in cases that on the face of it do not appear to meet the requirements of the policy. This is to allow the system to deal with those rare cases that present an exceptional set of circumstances, normally humanitarian, that would suggest that the appropriate and proportionate decision should be positive’
The respondents further submitted that the test in finding whether the case in question was of an exceptional humanitarian nature was whether it could be demonstrated that ‘their circumstances are more severe to that of other Somali citizens’

The court found that the decision maker fell into error in making this finding. Mr Justice Barr stated that in order to circumvent the requirements of the policy document it is only necessary for them to establish that they constitute an exceptional set of circumstances. It was found that this ‘does not mean they have to prove their circumstances within the particular country in question are exceptional by the standards of that country.’

Mr Justice Barr also submitted that any submission made by the Minister in relation to errors in spelling on the applicant’s documents, occurring as a result of translations, were of probative value and were made irrationally and unfairly.

Mr Justice Barr further submitted that the financial requirements of the policy document were applied against the applicant without proper consideration of the exceptional humanitarian circumstances.

Mr Justice Barr stated this it was a key issue of the case that the Minister did not engage in a real way the with the exceptional humanitarian circumstances of the case.

The court summarized the findings as follows:

‘In summary, the court holds that to have applied the eligibility criteria and the
financial requirements of the policy in refusing the visa applications on behalf of the
minor applicants, while effectively ignoring the past circumstances of the first
applicant and her children, together with their present circumstances in Somalia, and
in not considering whether these constituted exceptional circumstances, which
warranted a departure from the strict requirements of the policy, rendered the decision
irrational and unfair. On this basis it has to be set aside.’

The court ultimately issued an order of certiorari quashing the Minister’s decision to refuse the visa applications for the four minor applicants.
The full judgement can be accessed via the following link:

https://www.courts.ie/acc/alfresco/231745d1-c37c-45e1-a633-248484d0ebf0/2023_IEHC_316.pdf/pdf#view=fitH

We wish to extend our congratulations to our clients for this ruling.

EMPLOYMENT PERMITS ACT 2024 SIGNED INTO LAW

IMMIGRATION IN IRELAND STATISTICS MID-TERM REVIEW

 

The Department of Justice has provided up to date statistics from January 2022 to June 2022 in relation to, Residency and EU Treaty Rights, Visa, Citizenship statistics, International protection, and Removal/Deportation. The statistics were broken down by nationality, gender, and age group.

In relation to EU Treaty Rights Applications from January to June 2022, the data shows that nationals from Brazil, South Africa, and Pakistan were the top nationalities of applications received by the Department of Justice. 1356 applications were received from Brazil, 240 from Pakistan, and 153 from South Africa.

The statistics found that nationals from India, Egypt, and China were the top nationalities for Long Term Residency Applications. 30 applications for Indian nationals, 26 applications for Egyptian nationals, and 25 for Chinese nationals (including Hong Kong).

The total visas decided from January to June 2022 were primarily from India, Nigeria, and Turkey. With 21535 visas from Indian nationals, 3396 visas from Nigerian nationals, and 3019 visas from Turkish nationals. In total, most of the visas granted were for Indian (20736 visas), Turkish (2812 visas), and Chinese nationals (2477 visas). The most refused visas were for nationals from Nigeria (1568), India (799), and Pakistan (541), with an overall number of 5825 visas refused. The total decided re-entry visas from January to June 2022 were from Indian, Pakistani and Egyptian nationals.

From January to June 2022, there were 7039 citizenship certificates issued, mainly in respect of United Kingdom, Indian, and Pakistani nationals.

In total, there were 6495 applications received relating to International Protection Applications for 2022. Mainly from Georgia (1811), Somalia (938), and Algeria (698). Out of those applications, there were 1037 applications that have been approved, primarily from Somalia, Afghanistan, and Zimbabwe. Moreover, 1657 applications were refused primarily from Nigeria (216), Georgia (216), Zimbabwe (204).

In relation to Family Reunification Applications, there were 1137 applications submitted from January to June 2022, mainly from nationals of Somalia (489), Afghanistan (247), and Syria (69). 1911 applications for access to the labour market were submitted from January to June 2022, mainly from Somalia, Georgia, and Nigeria nationals.

There were 23 total removals effected, primarily from Romania, Lithuania, and Poland nationals. 54 deportations effected primarily from Pakistan, Nigeria, and Georgia nationals.

The book for the full statistics can be found here: https://www.irishimmigration.ie/wp-content/uploads/2023/01/Mid-Year-Review-Statistics-Booklet-2022.pdf

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

RECENT HIGH COURT JUDGMENT REGARDING ENTITLEMENT OF CHILDREN OF SAME-SEX PARENTS LIVING ABROAD TO IRISH PASSPORTS

RECENT HIGH COURT DECISION – REFUSAL OF REFUGEE FAMILY REUNIFICATION FOR NON-MARITAL PARTNER

Ms Justice Bolger of the High Court has recently delivered a judgement in the case of O v Minister for Justice [2022] IEHC 617.

 

The case concerned a Nigerian citizen who applied for refugee family reunification for his non-marital partner and three children in Nigeria pursuant to s.56 of the International Protection Act 2015. The applications for his children were granted, however the application for his partner was refused. The applicant sought to challenge this decision by way of judicial review proceedings in the High Court, seeking to quash the decision. The Court refused the application and did not grant the relief sought.

 

The application was refused on the basis that s.56(9) of the 2015 Act only permits unification with a marital partner, whilst the applicant’s partner was not married to him. Non-marital partners are covered by a separate administrative non-EEA Family Reunification policy.

 

The applicant claimed that s.56(9) is repugnant to the provisions of the Constitution and incompatible with EU law and the State’s obligations under the ECHR. He applicant also claimed that the administrative policy would not afford him reunification with his partner because he was unable to comply with its financial requirements. He argued that limiting statutory family reunification to a spouse will unfairly split non-marital families by leaving one parent isolated from the other and their children. The applicant argued that this limitation is contrary to Articles 40.1 and 40.3 of the Constitution on the right to equality and Article 41 family rights, as well as his rights under the ECHR to non-discrimination. The applicant also sought constitutional protection for his right to cohabit.

 

The Court rejected the argument that the applicant was being treated less favourably than a married refugee who has been separated from their spouse. The Court in making this determination considered the Minister’s submissions that the applicant was married to a third party and that this marriage had not been dissolved. The Court was satisfied that the applicant’s status is therefore that of a married person and he could not assert a constitutional right to equality of a non-married person to be treated equally to a married person.

 

The Court did not accept the assertion by the applicant that his non-marital relationship is akin to the marital relationship that is recognised under Irish law. The Court stated that insofar as the applicant contended that the relationship between him and his partner was akin to marriage, it could only be akin to a polygamous marriage, which is not recognised in Irish law.

 

In considering the applicant’s argument that there is a constitutional right to cohabit, the Court rejected that such a right existed. The Court further concluded that no EU rights are engaged in the application of s.56 of the 2015 Act and therefore the ECHR is not applicable.

 

The Court therefore found that it is not unlawful that unmarried partners are not included as family members under s.56 of the Act. The Minister has discretion in assessing the extent of family reunification to be afforded to refugees and is entitled to limit this. The Court found that applicants have a non-statutory procedure which they can use to apply for their unmarried partners, via a long-stay visa application, asking the Minister to disapply financial criteria if necessary. The Court found that the State had not breached the applicant’s constitutional rights by providing a different, and potentially more restrictive, non-statutory administrative policy for non-marital family reunification.

The full judgement can be found here:

https://www.courts.ie/acc/alfresco/d322aab5-cda8-461b-b019-dc363a071c70/2022_IEHC_617.pdf/pdf#view=fitH

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

RECENT SUPREME COURT JUDGEMENT REGARDING THE BEST INTERESTS OF CHILDREN IN THE CONTEXT OF DEPORTATION DECISIONS

IMPORTANT HIGH COURT JUDGEMENT ON FAMILY REUNIFICATION RIGHTS OF REFUGEES

On 27th June 2022, Mr Justice Ferriter of the High Court gave judgment in the judicial review cases of SH and AJ. Both cases address the application of s.56 of the International Protection Act 2015.

S.56(a)(d) of the International Protection Act 2015 states that the child of an applicant for family reunification must be under 18 years of age and unmarried at the time of application for family reunification.

A basic understanding of the cases of SH and AJ is necessary to understand the High Court ruling.

SH is a national of Syria. His wife and their three children, NH (born 31st May 2009), AH (born 24th April 2003) and ZH (born 29th April 2000) remain in Syria.

SH experienced significant delays in the processing of his application for international protection as the Minister reported that the department was experiencing delays due to the onset of Covid-19. Because of these delays, SH did not receive an IPO interview until the 14th May 2021.

SH was informed by letter of a declaration of his refugee status on 1st June 2021. SH’s son, AH, turned 18 on 24th April 2021.

On 7th July 2021, SH made an application for family reunification based on s.56 for his wife and three children. On 9th July 2021, the Minister denied SH’s application for family reunification because AH and ZH were aged 18 years and 21 years, respectively, at the time of application.

On 14th October 2021, SH applied under the Minister’s administrative Join Family policy document for long stay visas for AH and ZH. The application has not yet been determined.
AJ is a national of Somalia who fled the country to avoid persecution by Al Shabab, a terrorist group. AJ arrived in the State on the 8th August 2019 and applied for international protection the same day. AJ’s wife and three children remain in Somalia. AJ’s oldest son, MJ, was born on the 2nd January 2003. AJ’s twins were born on the 8th October 2005.
AJ was formally granted refugee status on the 11th November 2020. AJ’s son, MJ, turned 18 on 2nd January 2021.

On 29th January 2021, AJ applied for family reunification under s.56 for his wife and three children. The application was denied the same day on that basis that MJ was over 18 years of age on the date of application.

AJ requested a review of this decision; the original decision was upheld.

AJ then made an application for MJ under the Minister’s administrative Join Family policy document for a long stay visa. This application was refused on the 6th May 2021. AJ sought review of this decision. The review is currently pending.

Both SH and AJ hold that the delay in processing their applications led to a situation where their children aged out of eligibility for family reunification pursuant to Section 56.
The applicants further argued that the relevant date for reviewing the entitlement to family reunification is the date that the applicant applied for international protection, holding that family reunification is a right guaranteed by EU law.

Justice Ferriter held in this regard that Section 56 is a matter of policy choice by the legislature- “it follows that Section 56(9)(d) is not in breach of EU law.”
Applicant AJ also argued his entitlement for Francovich damages. The Court held that there was a breach of Article 22 of the Qualification Directive in respect of AJ’s case.

Mr Justice Ferriter concedes that both applicants likely would have been granted family reunification for all family members if not for the delays in processing their international protection applications, though the department does not bare legal fault for the lengthy processing of the applications.

Mr Justice Ferriter states that, in his view, there is no EU law right to family reunification in Ireland from the date of a refugee’s application of international protection.

Judge Ferriter referred to and relied on the Supreme Judgment of ASSI in his judgment, in which the constitutionality of Section 56(8) and Section 56(9)(a) of the 2015 were upheld.

Ultimately, Mr Justice Ferriter refused SH’s application for relief and adjourned for further review AJ’s claim for Francovich damages, stating that ‘it is difficult to form any view on the damages said to arise in circumstance where a review decision is still pending in respect of AJ’s scheme application’.

The Court held that the Court, nor the Minister was entitled to disapply a statutory provision that the applicants did not meet. The Court found that it could not re write the contents of Section 56(9)(d) and that to do so would amount to an improper usurpation of the Courts constitutional role.

The Court found that in absence of a free standing right to family reunification, the Legislature is entitled to put parameters on the rights to family reunification for the beneficiaries of international protection.

In relation to the Minister’s Policy Document on Non-EEA Family reunification, the Court commented that it is preferrable that guidelines do exist in respect of the operation of the Minister’s discretion in this area. The Court also commented that in it’s view there may be occasions, of cases of such a humanitarian nature, that to expect an applicant to wait 12 months for a decision would not be proportionate.

We submit that the provisions of Section 56 are too restrictive in nature and are causing devastation for families of refuges. We submit that the parameters of those provisions is a matter that should be revisited by the Legislature.

HIGH COURT JUDGEMENT ON TEST FOR DEPENDENCY IN EU TREATY RIGHTS CASES

On 10th June 2020, Mr Justice Humphreys delivered his judgement in the case of Asif Rashid and Qasim Rashid v The Minister for Justice and Equality [2020] IEHC 333.

The first-named applicant is a British citizen, and his brother, the second-named applicant, is a citizen of Pakistan.

The central issue in the case was whether the Minister for Justice had erred in finding that no relationship of dependency had been established between the first and second-named applicants.

The Court ultimately upheld the decision of the Minister for Justice to refuse the second-named applicant’s application for residence based on his dependency on his EU Citizen brother.

Mr Justice Humphreys emphasised that the test for dependency in EU Treaty Rights cases is “definitively to be found in the CJEU jurisprudence, the most helpful summary of which is at paras. 19-28 of Case C-423/12 Reyes v. Migrationsverket”.

The Court found that the concept of dependency as defined in national case law, most notably in the case of VK v Minister for Justice and Law Reform [2019] IECA 232, does not change or add to the test for dependency established by existing CJEU jurisprudence.

In this regard the Court stated at paragraph 10:

“…the test has been phrased in different ways in different cases so the V.K. judgment should most certainly not be treated as a statute imposing another finer mesh of procedural and substantive legal complexity on top of the existing law. The really central point is the one [Baker J] makes at para. 81 of her judgment that “The test for dependence is one of EU law”. Therefore, any paraphrases in national jurisprudence are just that; and any language in any Irish case that is not found in CJEU jurisprudence is not creating or changing the CJEU jurisprudence. The latter remains the primary source of the meaning of dependency irrespective of any decisions at national level.”

The Court stated that the key issues in establishing dependency are the regularity of money transfers to the dependant applicant over a significant period, the necessity of those payments in enabling the dependant to support himself or herself in their country of origin, the financial and social conditions of the dependant, and the demonstration of a real situation of dependence.

Importantly, the Court emphasised that the payment of significant sums on a regular basis to the dependant in the country of origin, will not, by itself, constitute sufficient evidence of dependency.

This judgment of the High Court can be seen as a more conservative approach to the concept of dependency in EU Treaty Rights cases.

The full judgement can be read here.

If you or a family member have queries about EU Treaty Rights, please do not hesitate to contact the office.

SUPREME COURT JUDGEMENT ON FAMILY REUNIFICATION FOR NATURALISED REFUGEES: M.A.M. (SOMALIA) AND K.N. (UZBEKISTAN)

Berkeley Solicitors are delighted to congratulate our client who won her appeal in the Supreme Court today in the joint test cases of – M.A.M. (Somalia) v The Minister for Justice and Equality and K.N. (Uzbekistan) and Others v The Minister for Justice. The judgement of Mr Justice McMenamin was a unanimous judgement of the Supreme Court in favour of the appellants, and was delivered on the 19th June 2020.

The judgement is very significant as it affects not just the individual families taking the appeal, but approximately fifty other applicant families who have cases pending in the High Court holding list awaiting the outcome of this Supreme Court appeal.

The case arose from a challenge to the decision of the Minister for Justice to refuse family reunification to our client’s family members under The Refugee Act of 1996 (as amended). The sole reason for the Minister’s decision was the fact that our client had become an Irish citizen by naturalisation prior to her family reunification application, and the Minister held she was not therefore entitled to the family reunification rights as a refugee.

During the course of the proceedings, the Minister accepted that the Department of Justice had previously interpreted Section 18 of the 1996 Refugee Act to permit naturalised refugees to apply for family reunification for their family members, and this favourable scheme was in operation between 2010 and October 2017. The Minister also accepted that in October 2017, following new legal advices, the Minister commenced a new procedure to preclude naturalised refugees from applying for family reunification. This change in policy resulted in many naturalised refugees being refused family reunification during the period of 2017 and 2018, prior to the commencement of the family reunification provisions of the International Protection Act 2015.

The Minister argued that in order for a person to have rights to family reunification under Section 18 of the 1996 Act, not only must they hold a declaration confirming their refugee status, but they must also be a refugee in line with the definition of a refugee in Section 2 of the Act. As this definition requires a person to be outside their “country of nationality” to be a refugee, the Minister’s argument was that a refugee who becomes naturalised is no longer deemed to be a refugee as they are not outside their country of nationality, when that country becomes Ireland.

The Supreme Court disregarded this argument, holding that there was nothing to suggest in the Act that the appellants’ “country of nationality” had altered from Somalia and Uzbekistan to Ireland, as their well-founded fear of persecution remained  in those countries and not Ireland.

The Supreme Court carried out a detailed statutory interpretation exercise in respect of the 1996 Refugee Act, and highlighted the absurdities that would follow if a refugee with a declaration of refugee status would also have to be “deemed” to be a refugee in order to avail of the important rights of family reunification.

The court stated:

“The consequence of the interpretation urged by the Minister would be to create substantial legislative uncertainty when the purpose of the 1996 Act was to achieve clarity. The case advanced would run counter to the legislative aim of the Oireachtas, which was, by a carefully devised procedure defined in the Act, to identify one definitive “mark” of recognition to persons who were entitled to refugee status in this State, which, in turn, would grant them benefits and entitlements.”

In conclusion, the Supreme Court held as follows:

“This judgement concludes that the fact that the appellants became citizens did not deprive them of the right to apply for family reunification under s.18 of the 1996 Act.”

This is a very welcome decision from the Supreme Court, because it gives certainty to the definition of a refugee and the interpretation of the family reunification provisions in the 1996 Refugee Act.

In effect it means that all the decisions issued by the Minister during the period of 2017 and 2018 to refuse applications for family reunification under the 1996 Act because the sponsors were refugees who had naturalised as Irish citizens, were unlawful.

It also means that the decisions granting family reunification to naturalised refugees during the 2010 to 2017 period are lawful, bringing legal certainty to the status of countless families now settled in Ireland.

We would expect that Minister will now agree to withdraw these previous unlawful decisions refusing family reunification, and reconsider and re determine the applications in line with the Supreme Court’s judgement.

We welcome the clarity that this judgement brings and look forward to working with our clients to have the unlawful family reunification decisions withdrawn and re determined.

The full judgement can be read here.

We are happy to advise further to anyone believes they are affected by this judgement.

Berkeley Solicitors