AMS v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 20 November 2014
• Neutral Citation: [2014] IESC 65
• Court: Supreme Court
• Docket Number: [Appeal No: 89/2014]
• Date: 20 November 2014

[2014] IESC 65

THE SUPREME COURT

Denham C.J., Murray J., Hardiman J., Clarke J., Dunne J.

[Appeal No: 89/2014]

Between/

A.M.S. (Somalia, Family Reunification)

Applicant/Respondent

and

The Minister for Justice and Equality

Respondent/Appellant

Appeal –Immigration – Refugee Status – Family Reunification – Judicial Review Proceedings – Refugee Act, 1996, sec 18 – Proportionality of discretion – Ministerial Discretion – Economic considerations

This is a case that concerned a Somalia refugee, applicant, seeking to extent the benefits of his refugee status to his family members, namely his mother and youngest sister. Irish law does make provisions for family reunification like the one in cases where a member of the family concerned has successfully obtained refugee status in the State. After an initial refusal by the minister for Justice and Equality, the applicant successfully had that decision quashed in judicial review proceedings in the High Court. The Minister for Justice and Equality, appellant, appealed to the Supreme Court against the decision to quash the refusal decision. The issue came before justices Denham C.J., Murray J., Hardiman J., Clarke J. and Dunne J.

The court first considered the determination of the trial judge as to the proper interpretation of section 18 Refugee Act, 1996 and the question of the proportionality of the decision of the Minister in refusing family reunification in the circumstances of this case. The trial judge carefully deciphered s.18, which permitted ministerial broad discretion in regards to the wider range of family members. One of the reasons the minster gave for his initial refusal was that allowing the reunification would be strain on the already precarious Irish economy. The court accepted that section 18 was quite vague in regards to what criteria the minster must address in making a decision about family reunification. In regards to denying the application for reunification because of legitimate economic interests of the State, the court decided that this was a real interest that was rightfully considered by the Minster in the initial refusal. The court concluded that the trial judge was incorrect in forming the view that the potential financial consequences for the State of allowing a discretionary family reunification application cannot be taken into account in the overall assessment. In relation to the proportionally of the minister”s decision, the court considered the minster”s balancing exercise in the case. The court decided that it was difficult to see how the weight to be attached, in the context of family reunification, to the general right of the State to control immigration, could outweigh the factors which favor family reunification in this case. The court ruled that a decision to refuse reunification was outside of the range of proportionate decisions, which were open to the Minister on the facts of this case. The court dismissed the appeal and affirmed the decision of the High Court.

Appeal dismissed.

Mr. Justice Clarke

Judgment of Mr. Justice Clarke delivered the 20th November, 2014.

1 1. Introduction

1.1 Irish law makes provision for the possibility of family reunification in cases where a member of the family concerned has successfully obtained refugee status in the State. Two classes of family member are described in the relevant legislation which is s.18 of the Refugee Act, 1996 (‘1996 Act’). Under s.18(3) of the 1996 Act spouses, unmarried minors and parents of minor refugees are given an automatic entitlement to reunification. Under s.18(4) a discretion exists in respect of a wider range of family members. This case is concerned with an application which relates to members of that wider group.

1.2 The applicant/respondent ("Mr. S") was born in 1985 and is a citizen of Somalia. He came to Ireland as an asylum seeker in May 2007 and was declared to be a refugee on the 8th January, 2009.

1.3 An initial decision to refuse permission to enter the state, in respect of a number of persons said to be members of Mr. S's family, was made in July 2011. That refusal was quashed by the High Court (Cross J.) in A.M.S. (Somalia) v. Minister for Justice and Equality [2012] IEHC 72. Thereafter, a second application was followed by a second decision to refuse made on the 20th July, 2012. Judicial review proceedings were brought seeking to quash that second refusal. Those second judicial review proceedings were concerned only with the mother of Mr. S and his youngest sister. The proceedings were successful in the High Court (A.M.S. v. Minister for Justice and Equality [2014] IEHC 57). The respondent/appellant ("the Minister") has appealed to this Court against that decision. Two main sets of issues arose on the appeal. The first concerned the determination of the trial judge as to the proper interpretation of section 18. A number of separate questions potentially arise under that heading. Second, the question of the proportionality of the decision of the Minister in refusing family reunification in the circumstances of this case was brought into question.

1.4 In order to properly understand the issues in detail it is necessary to turn first to the background facts in more detail.

2 2. Background Facts

2.1 Mr. S, having been granted refugee status on the 8th January 2009, applied to the Minister, under s.18 of the 1996 Act, by letter dated 11th May 2009, for family reunification in respect of his wife, mother, daughter, two sisters and two brothers. Mr. S completed the questionnaire (as required of a refugee seeking reunification with his family) without the assistance of a lawyer. In response to questions posed in the questionnaire, Mr. S explained that he had lived as a unit with all of the named family members while in Somalia and that his family were, at the time of his application, in a refugee camp outside Mogadishu. The siblings of Mr. S were all minors at that time. Mr. S did not respond to a question seeking information on financial dependency on the part of the relevant family members towards him. Mr. S responded ‘no’ to a question as to whether any family members were employed. Mr. S stated that he was looking for a job in response to a question asking how he proposed to support the relevant family members if granted reunification. Mr. S failed to respond to a question concerning social welfare benefits. As is normal practice under the requirements of the 1996 Act, the questionnaire and any other relevant materials are considered by the Office of the Refugee Applications Commissioner ("ORAC") and a report prepared for the Minister. The report, in this case, was forwarded by ORAC to the Minister on the 1st September 2009 but was not made available to Mr. S at that point.

2.2 In February 2010, Mr. S. received the tragic news that his daughter and one of his brothers had been killed in a bomb attack, in January 2010, while the family were making their way from the refugee camp outside Mogadishu across the border to Ethiopia.

2.3 Mr. S engaged the assistance of solicitors who came on record on the 18th February, 2010. The solicitors for Mr. S entered into correspondence with the Minister and provided documentation and further information in support of Mr. S”s application. The Minister was informed that the family were now residing in rented accommodation in Addis Ababa with the financial assistance of Mr. S. The family are undocumented in Ethiopia and have no permission to reside there. The family members are all unemployed and rely on remittances from Mr. S. The Minister was also informed of health issues concerning Mr. S”s mother, including hypertension, chronic liver disease, chronic rheumatism, dementia and depression.

2.4 Almost one year later, solicitors for Mr. S wrote to the Minister, on 10th January, 2011, requesting a decision within twenty-eight days. In response the Minister requested further information to assist in the decision-making.

2.5 Thereafter, the application of Mr. S for reunification with his wife, under s.18(3) of the 1996 Act, was granted on the 4th May, 2011. However, a decision to refuse the applications in respect of the remaining family members was issued, under s.18(4) of the 1996 Act, on the 6th July, 2011.

2.6 As noted earlier, that later decision (of the 6th July, 2011) was quashed by Cross J. for the reasons set out in a judgment entitled A.M.S. (Somalia) v. Minister for Justice and Equality [2012] IEHC 72, on the 14th February, 2012. On the 5th April, 2012, Mr. S renewed his application for reunification with his mother and remaining siblings (one brother and two sisters), and in this respect, made additional submissions to the Minister.

2.7 The second decision concerning Mr. S”s application for reunification issued on the 20th July, 2012, and again contained a refusal. It is this decision to refuse which was the subject of judicial review proceedings before MacEochaidh J. and which is now before this Court. Those judicial review proceedings were confined to seeking orders designed to quash the refusal in respect of the mother of Mr. S and one of his female siblings who was a minor.

2.8 In that particular context it is necessary to turn to the reasons given by the Minister for that second refusal. It is accepted that the Minister's reasons can be found in a document entitled ‘Family Reunification Consideration’, prepared by Mr. Barry McGreal of the Family Reunification Unit of the Irish Naturalisation and Immigration Service ("the reasons document").

3 3. The Reasons Given

3.1 The reasons document acknowledges that the first decision to refuse was successfully challenged and that Mr. S”s application for family reunification was to be reconsidered in the light of that fact. The document noted that the Minister expressed concern as to identity in his earlier decision. The Minister was unable to...