About this case:

• Citation:
  [2023] IEHC 501
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Anthony Barr

Delivering the judgment, Mr Justice Barr found that the court was bound by previous precedence established in Ireland, which found that family reunification applications cannot apply retrospectively.

Further, the court found that the applicant had failed to exhaust all of the remedies available to her before bringing the High Court application.

Background

The applicant was a national of Zimbabwe. She arrived in Dublin in November 2019, and in February 2022 was declared a refugee pursuant to s.47(1) of the International Protection Act 2015.

In March 2022, she submitted an application for family reunification to the Family Reunification Unit in the Department of Justice and Equality. That application related to her three children, who were born in 2003, 2008 and 2014 respectively.

She was informed that the application would be processed in relation to her two youngest children, but that her eldest daughter’s application could not be processed, as she fell outside the provisions of s.56(9) of the 2015 Act. This was because the act defines a member of the family, for reunification purposes, as, inter alia, “the child of a sponsor who is under the age of 18 years at the date of the application”.

Her eldest daughter had, in the time period between when she applied for refugee status, and then sent the reunification request, “aged out” and was ineligible for consideration for family reunification.

The applicant maintained that the provisions of s.56 of the 2015 Act were inconsistent with EU law and were contrary to the right to equal treatment enshrined in the Constitution, by virtue of the fact that a declared refugee can seek family reunification which is ultimately dependent on the length of time that the application for refugee status takes to reach a determination.

It was submitted that this approach was contrary to the provisions of EU law, lacked legal certainty, and was contrary to the provisions of the Constitution and the European Convention on Human Rights (ECHR).

The applicant’s arguments

Counsel for the applicant referred to the opinion of Advocate General Hogan in Bundes Republik Deutschland v. SE (Case C-768/19), where the Advocate General opined that the entitlement to make an application for family reunification could not be made to “turn on the happenstance of the dates on which certain decisions were made by third parties”.

It was submitted that the State could not legislate in such a way as to undermine the declaratory nature of refugee status under EU law. It was further argued that s.56(9) of the 2015 Act breached principles of equal treatment and legal certainty, and was therefore repugnant to Articles 40.1 and 40.3 of the Constitution.

It was argued that despite no self-standing constitutional right to family reunification, the Oireachtas had seen fit to make provision for it through domestic provision. This, therefore, had to comply with basic constitutional principles, including the right to equal treatment and respect for existing familial relations.

It was further submitted that the impugned provision was incompatible with Articles 8 and 14 of the ECHR. Counsel for the applicant noted that in a number of cases it had been held that family reunification was an “essential right” of refugees.

They argued that the applicant had been treated differently to persons who were fortunate enough to have had their applications for international protection fully accessed and determined well in advance of their children attaining the age of 18 years.

The respondents’ submissions

The respondents objected to the application, on the grounds that the applicant had not exhausted her alternative remedies, and that the application had therefore been brought prematurely.

In particular, she had not sought to make an application under the Minister’s policy document on Non-EEA Family Reunification. This remedy had been recognised by the Supreme Court in A, SS & I v. Minister for Justice [2020] IESC 70.

They also referred to MT v. Ireland (Application No. 54387/20), where the European Court of Human Rights held that an applicant’s failure to exhaust available domestic remedies rendered his application inadmissible.

The respondents also relied on a judgment delivered by Ferriter J. in SH & AJ v. Minister for Justice & Ors. [2022] IEHC 392. The SH case found that a declaration of refugee status did not have retrospective effect in relation to the timing of benefits arising from such a declaration, which included the right to family reunification under s.56.

In relation to ECHR issues, it was claimed that the right to asylum was a fundamental right, but that Article 18 did not explicitly or impliedly provide for a right to family reunification. Further, the applicant could not point to any difference in treatment between her and any other person who had applied for family reunification on the same day as she had done.

Consideration

The court ultimately determined that the issues and arguments raised in the case were all canvassed and determined in the SH case. The court respectfully adopted the reasoning and conclusions set out by Ferriter J. in his judgment.

Ferriter J. held that all declared refugees are treated equally as of the date of their family reunification applications. There was no difference of treatment within that class. He noted that while there would always be cases that would fall just outside the cut-off dates, which might result in a “harsh result”, that did not prove that the provision was unconstitutional, or in breach of the ECHR.

Going further, the court in this case held that the existence of an alternative remedy, which the applicant did not avail of, was an additional ground on which the court would refuse the reliefs sought by the applicant in her notice of motion.

Conclusion

Ultimately, the court held itself bound by the decision in the SH case, and determined that the applicant was not entitled to the reliefs sought in her notice of motion, for the reasons set out in the SH judgment.

Sibanda v. The Minister for Justice & Ors [2023] IEHC 501