Tag Archive for: family reunification

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.

STAMP 0 PERMISSION ACCEPTED AS RECKONABLE RESIDENCE FOR NATURALISATION

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

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.

HIGH COURT DECISION RELATING TO REVOCATION OF AN EU RESIDENCE CARD AND THE IRISH PASSPORT OF MINOR CHILD

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

REFUSAL OF NATURALISATION APPLICATION ON GOOD CHARACTER GROUNDS OVERTURNED BY HIGH COURT

HIGH COURT DECISION ON 12 MONTH TIME LIMIT FOR REFUGEE FAMILY REUNIFICATION

On 29th October 2019,    Mr Justice Humphreys delivered his judgement in I.I (Nigeria) v Minister for Justice and Equality in relation to the 12-month time limit to apply for Family Reunification under Section 56(8) of the International Protection Act 2015. The high court judge found in favour of the State.

The case concerned an Applicant who, in October 2011, was left in the care of her maternal Aunt. The Child and Family Agency acted on the Applicant’s behalf at material times thereafter. The Applicant was subsequently granted refugee status on 25th September 2014 and applied for family reunification in respect of her mother, in July 2018. This was refused on 3rd December 2018.

The Applicant sought review of the refusal and a declaration that the 2015 International Protection Act is contrary to the Constitution, ECHR and EU law.

The Applicant argued they were unable to make a family reunification application in the four years previous as the whereabouts of her mother was unknown.

The judge held that the genuine inability of the Applicant’s Aunt or Child and Family Agency to contact the Applicant’s mother or family members within the statutory time limit of 12 months, from date refugee status was granted, for applications for family reunification was not satisfied.

The judgement highlighted that no application had been made under the non-EEA policy document nor had visas for the Applicant’s family been made- something which Judge Humphreys suggested might have achieved family reunification.

The Applicant argued that she carried the right to apply under s. 18(3) of the Refugee Act 1996 without any time limit and this right was carried forward beyond the repeal of the Refugee Act 1996 act in 2015.

Mr Justice Humphrey’s vehemently opposed this argument, stating that such an interpretation:

Para 13. “would deprive the concept of repeal of much of its meaning, creating intolerable uncertainty and giving the Refugee Act 1996 a ghostly after-life such that years or even decades after its repeal, it could violently jerk back into life without warning at the whim of an applicant such as this one.”

The judgement also highlighted that an application for family reunification could have been made within the time limit, on the basis that efforts and inquiries were being made to contact the relatives.

Notably, the court held that an alternative remedy could have been made under the non-statutory Policy Document on Non-EEA Family Reunification 2015 or by applying for visas. [para 21]

Mr Humphrey’s opined that:

Para 23. “as there is a separate procedure which could potentially achieve the family reunification for the applicant’s relatives, particularly if the age of an applicant is a factor to be taken into account in that process. It would be an improvident use of the power to strike down legislation to embark on consideration of a challenge to that legislation where the applicant has not even applied under that separate procedure, let alone been refused.”

Mr Humphrey’s continued in Paragraph 25 affirming:

 “it is not a breach of any particular constitutional right to have a twelve-month time limit for family reunification or even to have a time limit that legal guardians must exercise on behalf of a person who is a minor at the time… The mere fact that a person has been admitted into the State for some purpose including international protection does not create a constitutional obligation on the State to admit any or all family members… does not generate a free-standing constitutional right on the part of others to enter the State which they did not otherwise possess. It is worth noting that… family reunification is encouraged by interested agencies but is not a legal obligation. Even if there is such a right, a generous twelve-month time limit is not disproportionate and thus no breach of substantive rights arises, and is well within the margin of appreciation of the Oireachtas.”

In this regard, Mr Justice Humphrey’s found that the window to apply for family reunification was not availed of and therefore dismissed the application.

The judgement places a significant obstacle against family reunification for refugees, and has an adverse impact on many people.

We understand this judgement is to be appealed to the Court of Appeal, and we will continue to post updates on the developments of this important appeal.

The full judgement can be read in full here

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.

 

IMPORTANT HIGH COURT RULING DEEMS REFUSAL OF FAMILY REUNIFICATION TO SPOUSES/CIVIL PARTNERS OF REFUGEES/SUBSIDIARY PROTECTION HOLDERS UNCONSTITUTIONAL

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 [2019] 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.

 

UPDATE ON CHANGES TO IMMIGRATION RULES FOR FAMILY MEMBERS OF CRITICAL SKILLS EMPLOYMENT PERMIT HOLDERS

The new Pre -Clearance Procedure for family members of CSEP (critical skills employment permit) holders has commenced.

The recently welcomed policy change for the spouses and de facto partners of CSEP holders has been followed by another very encouraging update of a new Pre-clearance Scheme which was officially launched on April 1st 2019.

This Pre-clearance Scheme essentially allows for the spouses and de facto partners of CSEP holders to confirm their permission to enter the State in advance of arrival.

Prior to the launch of this Pre-clearance Scheme the spouses and de facto partners of CSEP holders who were also non-visa required nationals, did not have access to a procedure that would allow them to confirm their permission of entry to the State prior to arrival.

This may have been a cause for concern of a non-visa required spouse or partner, such that they must anticipate the possibility of refusal of permission to reside following their arrival to the State.

In addition, the maximum time frame of an approved visit entry is a 90-day period which is a seemingly unrealistic time-frame for many to successfully apply for and regularise their immigration status, particularly when taking into consideration the current waiting times for decisions.

The new Preclearance Scheme requires both visa exempt and visa required nationals who are the spouse or de facto partners of CSEP holders to ‘pre clear’ their entry before arriving in the State.

This scheme ultimately affords the spouse or partner much more certainty in their plans and concrete confirmation of their permissions to enter the State prior to their time of travel.  It allows the holders of pre clearance approval to enter the State and simply present for registration on Stamp 1G permission without the need to make any further application.

Furthermore, in following the previous update regarding the removal of the need to obtain a separate work permit for these family members of CSEP holders, this essentially allows the spouse or partner to acquire an almost instant access to the labour market upon arriving in Ireland- following their registration.

It should be noted that the rules for visa requirements in Ireland (outside of the aforementioned category of newcomers) still do not distinguish between short and long-term stays.  At present there is still no pre clearance procedure for non-visa required nationals outside of this new scheme.

This means that for foreign nationals who are non-visa required, the process of applying for permission to reside and/or work in the State can be an uncertain and understandably difficult experience.  Persons are required to come to the State, request entry at the border and if permitted entry make an application from inside the State. This usually results in a person becoming undocumented and being restricted from the labour force until their application is determined. It also comes with the risk that the application could be ultimately refused.

The unknowing and uncertain prospects for these applicants are wholly unsatisfactory and can ultimately become the cause of significant consequences for the applicant and the State.

We feel it could be in the best interests of all parties to further extend the pre clearance procedure in respect of non-visa required nationals, who are applying to reside in Ireland with their family.