On 15 August 2023, the Irish High Court upheld the constitutionality of section 56 of the International Protection Act, 2015 (‘section 56’) and affirmed that the Family Reunification Unit (‘FRU’) is entitled to refuse to process a family reunification application in respect of children who have reached the age of 18 before that application was lodged – even where such children were minors as of the date of the application for international protection status. Barr J, in finding that he was bound to adhere to the recent High Court ruling of Ferriter J in SH & AJ v Minister for Justice & Ors [2022] IEHC 392, concluded that there is “no self-standing constitutional, ECHR or EU law right to family reunification for a member of a beneficiary’s family, who resides outside the State” and in that in the absence of such a right, “it was open to the Oireachtas to choose as a matter of policy those children of beneficiaries of international protection status who would be conferred with the right to family reunification”.
The Court accordingly dismissed the reliefs sought by the applicant, which included a declaration that section 56 was unconstitutional and inconsistent with EU law. Counsel for the applicant has noted that the applicant intends to appeal the ruling to the Court of Appeal.
The Zimbabwean applicant’s three children were under 18 years of age at the time that she applied for international protection status in November 2019, but her eldest daughter was over 18 years of age when the applicant was recognised as a refugee in February 2022 and when the applicant applied for family reunification in March 2022. The FRU, acting in accordance with section 56, refused to process the family reunification application in respect of her eldest daughter.
The applicant submitted that section 56 was contrary to EU law and to the constitutional right to equal treatment, on the grounds that the ability of a refugee to reunite with their minor children is “dependent upon the length of time that [their] application for refugee status takes to reach a determination”. The applicant contended that the act of formally recognising refugee status was a declaratory act (i.e. a person declared to be a refugee was necessarily a refugee before that formal recognition was granted) and sought to rely upon the European Court of Justice’s ruling in case C-550/16 (A&S) that it is contrary to EU law to make the right to family reunification dependent upon the moment at which a competent national authority formally recognises a person’s refugee status.
The respondent’s arguments included a submission that the applicant had not exhausted the domestic remedies available to her before bringing the case (in that she had not applied for family reunification under the non-statutory discretionary visa scheme), and a submission that the applicant’s substantive arguments had been comprehensively dealt with by Ferriter J in the SH case.
Barr J preferred the submissions made by the respondent, noting that the ‘Worldport’ principles obligated him to follow the judgment of Ferriter J in the SH case (as that judgment had, with detailed consideration, dealt with all of the issues that were raised before Barr J in the present case). In this regard, Barr J found that there was no self-standing constitutional or EU law right to family reunification for non-resident family members of a declared refugee, that the selection of the date of the family reunification application (rather than the date of the international protection application) as the relevant date in this sphere was therefore “within the margin of appreciation afforded to the Oireachtas”, and that, ultimately, section 56 was constitutional and in line with EU law. Barr J also accepted the respondent’s submission that the applicant’s omission to apply for family reunification under the non-statutory scheme meant that she had not exhausted her domestic remedies before bringing her application, and that the Court would be inclined to consider this omission as another ground for refusing the reliefs sought by the applicant. Final orders regarding this matter will be made at 10:30am on 11 October 2023.
Click here for the judgment in Nkosinosizo Sibanda v The Minister for Justice & Equality & Ors [2023] IEHC 501.