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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

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.

 

IMPORTANT DEVELOPMENTS ON THE RIGHT TO WORK FOR ASYLUM SEEKERS

 

The Government is to lift some of the restrictions facing asylum-seekers seeking work and allow for greater access to social welfare payments and alternative accommodation. Last May it was declared by the Supreme Court that the ban on asylum seekers entering employment was unconstitutional “in principle” and the cabinet agreed to lift the ban last November, in line with a European directive.

Currently asylum-seekers who are in direct provision in Ireland currently have a weekly allowance of €21.60 and can buy food using a recently introduced points system. As of December 2017, there are 5,096 people within direct provision. Before the 20-year-old ban preventing people seeking asylum from working was lifted the direct provision program was undeniably restrictive and rigid. About 3,000 people face a wait of about a year and a half for a decision on their asylum claim.

The proposals regarding the conditions under which the ban will be lifted will be announced by Mr Flanagan and Minister of State David Staunton. The proposals come a year after the Supreme Court found the ban on asylum seekers working in this country was unconstitutional. The ban however is not lifted in its entirety. There are still restrictions on certain occupations that cannot be accessed by asylum-seekers within direct provision. Asylum seekers will be able to seek any form of employment except with An Garda Síochána, the Defence Forces or the Civil Service.

Government claim the decision to deny access to the Garda, the Defence Forces and the Civil Service was due to the permanent nature of the positions. “It is not clear whether all asylum seekers will become permanent residents and therefore until that is clear, they will not be in a position to work in those three sectors. However, they will be able to work elsewhere.” With this in mind it is still a massive step forward regarding the status of asylum-seekers. Access to social welfare payments will also be permitted to those who find employment.

Granting people, the right to work brings Ireland into line with other European countries. The governments justification for the ban in Ireland has been that it will create a pull factor, increasing the number of asylum seekers looking to seek refuge in Ireland. It is the topic of constant debate.

People can also be asked to pay towards the cost of their direct provision accommodation if their earning exceeds certain limits, but this contribution will be capped at around €35 per

day, the cost to the state of providing direct provision per person. If a person is granted permission to gain employment and have been working for over 12 weeks, their direct provision allowance of €21.60 will be reduced or withdrawn. Children’s allowance will not have their allowance taken and will not be charged for their accommodation if their parents are working.

Refugee support groups are welcoming new measures which open the Irish labour market to asylum seekers.

We at Berkeley Solicitors also welcome this development which we submit now brings Ireland in line with our legal obligations towards asylum seekers. We believe that it is logical that asylum seekers are given the opportunity to support themselves while they await the outcome of their application for protection. It will also create a fairer and more humane asylum system.

Berkeley Solicitors

FAMILY REUNIFICATION FOR NATURALIZED REFUGEES

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

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

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

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

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

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

Berkeley Solicitors