Tag Archive for: refugee

RECENT HIGH COURT JUDGMENT UPHOLDS DECISION TO REFUSE IRISH PASSPORT TO CHILD OF SUBSIDIARY PROTECTION HOLDER

RECENT HIGH COURT JUDGMENT UPHOLDS DECISION TO REFUSE IRISH PASSPORT TO CHILD OF SUBSIDIARY PROTECTION HOLDER

The High Court has recently delivered a judgement in T.R.I. (A Minor Suing by his Mother and Next Friend L.B.) v The Minister for Foreign Affairs and the Minister for Justice [2024] IEHC 96.

The case concerned a minor child born in Ireland in September of 2019, whose mother holds a declaration of subsidiary protection status.

Subsidiary protection is granted to individuals facing a real risk of suffering serious harm if returned to their country of origin, or their country of former habitual residence.

In August of 2021, the Applicant’s mother applied for an Irish passport on behalf of her child.

Section 6A(1) of the Irish Nationality and Citizenship Act 1956 states that a person born on the island of Ireland “shall not be entitled” to Irish citizenship unless their parent has, during the four years immediately preceding the birth, a period of reckonable residence of not less than three years.

However, Section 6A(2)(d)(i) qualifies that section 6A(1) does not apply to a child born on the island of Ireland if one parent is entitled to reside in the State “without any restriction” on their residence.

As the mother is a subsidiary protection holder, it was argued that she fell within this subsection of persons who are entitled to reside in the State without any restriction on their period of residence. This would mean the child was entitled to Irish citizenship by birth, even though the mother had less than three years’ reckonable residence in the four years immediately prior to the child’s birth.

This application was refused on the 15th of November 2022, on the basis that Section 6A (2)(d)(i) of the 1956 Act does not apply to a person with subsidiary protection.

The Applicant, through his mother, challenged this decision by way of Judicial Review proceedings in the High Court. It was argued that the mother is entitled to reside in the State without restriction, as the relevant law states that her permission “shall” be renewable, and it is not in any way restricted by time.

The Applicants relied on the Court of Appeal decision in AJK v The Minister for Defence [2020] 2 IR 800, where the Court found that subsidiary protection was “in effect an open-ended right of residence.”

Ms Justice Bolger considered the decision in AJK and stated that she did not consider it established an open-ended right of residence for a person with subsidiary protection. She stated that the comments of Donnelly J must be read in context of the entire judgement and highlighted that the case did not concern citizenship.

Ms Justice Bolger stated that although the law states that the subsidiary protection permission “shall be renewable”, its renewal is in fact conditional; firstly on the continuation of the circumstances that justified the grant of subsidiary protection in the first place, and secondly on there being no compelling reasons of national security or public order.

The Judge stated:

“The mother’s right to renew her permission to reside in the State via her grant of subsidiary protection… is and always was for a temporally restricted permission of a period less than three years subject to conditions.”

Ms Justice Bolger therefore upheld the decision of the Respondent to refuse the child’s application for an Irish passport.

The full judgement can be found here.

If you or a family member have any queries regarding Citizenship, please do not hesitate to contact us.

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.

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

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