Tag Archive for: refugee family reunification

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 judicial review case before the High Court in N.I. V MJE 2022 / 442 /JR

Clients of Berkeley Solicitors win their judicial review case before the High Court in N.I. V MJE 2022 / 442 /JR

Berkeley Solicitors would like to congratulate our clients who have received a positive judgement from the High Court today in their Judicial review proceedings.

The applicant, a minor Somali citizen, issued proceedings through her aunt and next friend challenging a decision of the Minister for Justice to refuse the her visa appeal to join her aunt and family in Ireland following the death of both her parents in Somalia.

We argued on behalf of our clients that the Minister acted in breach of fair procedures on a number of grounds. In refusing to grant the visa, it was submitted that the Minister failed to fully consider the best interests of the applicant in light of her particularly vulnerable position as a 14-year-old orphan residing outside her country of origin, without familial support.

It was submitted by the Respondent that the Applicant had failed to show sufficient evidence of a familial link between the applicant and the sponsor. Furthermore, it was submitted that the sponsor did not prove that she ‘is, or ever had been, socially or financially dependent on the sponsor’. The Minister also considered that the adoption of the Applicant was not recognisable under Irish law in light of the fact that there is no bilateral treaty in existence between Ireland and Somalia governing adoptions and similarly, that Somalia is not a party to the Hague Convention.

As a result, the Minister held that neither Article 41 of the Constitution nor Article 8 of the ECHR protecting the right to family life were applicable to the Applicant and the sponsor.
In setting aside the decision of the Minister, Mr Justice Barr held that the decision maker erred on a number of grounds in failing to recognise that a 14-year old orphan, ‘without any family support in a very unstable country, was not in an extremely vulnerable position, such that it constituted exceptional circumstances’.

Acknowledging the importance of family reunification in situations where individuals had fled persecution, Justice Barr held the Respondent was wrong in concluding that ‘there was no documentary evidence of familial relationship between the applicant and sponsor’. It was accepted that a number of important documents to this effect had been submitted by the Applicant, including a court order transferring guardianship of the application to the sponsor.

Furthermore, the emphasis placed by the decision maker on the issue of adoption as a basis for refusal, ‘an argument that was never put forward by the applicant, nor was put to her for comment’, was held to have breached the applicants right to fair procedure, rendering the decision ‘fatally flawed’.

Referring to the case of Tanda-Muzinga v France (2260/2010), the following passage was highlighted by the Court:
‘there exists a consensus at international and European level on the need for refugees to benefit from a family reunification procedure that is more favourable than that foreseen for other aliens, as evidenced by the remit and the activities of the UNHCR and the standards set out in Directive 2003/86 EC of the European Union’.

It was highlighted by the Court that this obligation is envisioned under Irish law in s.56 of the International Protection Act, 2015. Similarly, in line with our duties under Article 10.1 of the Convention of the Rights of the Child, that ‘applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner’.

Significantly, it was held that the Appeals officer hadn’t sufficiently considered ‘the extremely adverse consequences’ the refusal decision represented for the applicant. As a result, the Court held that the decision clearly constituted ‘exceptional circumstances of a humanitarian nature, which would have justified a departure from the financial requirements of the policy’.
The Judgement will be available on the High Court webpage in the coming days.

Our office wishes to congratulate our clients on this positive development in their case today and would also like to thank our counsel for their dedicated work on this case.

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.

NEW VISA REQUIREMENTS ANNOUNCED FOR NATIONALS OF BOTSWANA AND SOUTH AFRICA

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.