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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.