The Irish High Court has declared unconstitutional the refusal to allow family reunification for marriages entered into after asylum sought in Ireland.
The applicant in this case was granted refugee status in Ireland in July 2015 after fleeing Afghanistan. On 3 April 2017, he went to Pakistan to marry a woman born in Pakistan but who he had grown up with in Afghanistan. He returned to Ireland and submitted an application for family reunification on 19 April 2017. In October 2017, his application was refused by the Minister for Justice and Equality under Section 56(9)(a) of the International Protection Act 2015 on grounds that the marriage was in place when he applied for international protection in 2015.
The man brought a challenge against the decision of the Minister in High Court judicial review proceedings. The Irish Human Rights and Equality Commission was a notice party.
Mr Justice Max Barrett found Section 56(9)(a) to be unconstitutional, noting that Article 40 of the Constitution guaranteed the equality of all citizens before the law and required the State to vindicate the personal rights of the citizen. Additionally, Article 41 provided that the State must guarantee to protect the family and to “guard with special care the institution of marriage”.
The Judge accepted the applicant’s argument that, under Section 56(9)(a), his marriage was treated less favourably than those of refugees who married before they applied for international protection. He ruled that such a distinction was unconstitutional.
Justice Barrett rejected all of the reasons advanced by the Minister to justify the constitutionality of the provision, including arguments that the measure enables a refugee to reunite with their spouse from whom they had been forcibly and involuntarily separated. He stated that the Minister’s failure to justify the distinction created between refugees such as the applicant who married after he was granted refugee status in Ireland, and others who married before they made an international protection application resulted in differences of treatment “without any rationality or proportionality”, which is “another way of stating the said differences are arbitrary”.
Justice Barrett further held that if he had concluded that Section 56(9)(a) was constitutional, he would still have granted a declaration under the European Convention on Human Rights Act 2003 that the section was incompatible with the State’s anti-discrimination obligations under Article 14 of the European Convention on Human Rights, and the State’s obligation to respect the applicant’s private and family life under Article 8 of the Convention.
He considered the 2013 decision of the European Court of Human Rights (ECtHR) in Hode and Abdi v the United Kingdom where the ECtHR stated, inter alia, that if domestic law confers on certain categories of immigrant a right to be joined by their spouses, it must do so in a manner compatible with Article 14 of the ECHR, i.e. it cannot be discriminatory.
The judge also rejected the Minister’s argument that the applicant could apply under a separate non-statutory discretionary family reunification scheme, stating that it was “the reddest of red herrings” and distracted from the key issues in the case.
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