C v The Minister for Justice and Equality

JudgeMr Justice Max Barrett
Judgment Date31 May 2019
Neutral Citation[2019] IEHC 402
Docket Number2018 No. 1013 JR
CourtHigh Court
Date31 May 2019

[2019] IEHC 402


Barrett J.

2018 No. 1013 JR

– and –

Family reunification – Guardianship – Refugee – Applicant seeking family reunification – Whether the applicant was entitled to proceed on the basis of a looser (de facto) form of guardianship

Facts: The applicant, a refugee hailing originally from Somalia, by letter of 20.08.2015, made a family reunification application, pursuant to s. 18(4) of the Refugee Act 1996, in respect “of her niece…based on her guardianship of this minor child”. By letter of 02.09.2015, the respondent, the Minister for Justice and Equality, replied indicating that he “[would] not accept this application until original guardianship papers referred to in your letter are submitted with a new letter of application”. There was no mention of “guardianship papers” in the letter of 20.08.2015. The applicant was proceeding on the basis of the looser (de facto) form of guardianship contemplated, e.g., in Ducale & anor v MJE and ors [2013] IEHC 25. It was clear from his initial reply letter that the Minister conceived of the applicant’s application as one that could only be based on a formal, legally determined (what might be styled ‘de jure’) guardianship. By decision of 14.09.2018, the Minister refused the reunification application.

Held by the High Court (Barrett J) that the applicant was entitled to proceed on the looser Ducale-style notion of guardianship. Barrett J held that the Minister’s decision to refuse to consider the applicant’s application unless she confined it to de jure guardianship was unreasonable, yielding the result that the end-decision of 14.09.2018 was also unreasonable. Barrett J held that for the court to conclude otherwise would be to stand over a basic unfairness of procedure whereby the applicant was mistakenly corralled into proceeding in the only manner that the Minister was prepared to countenance based on what appeared to be his misapprehension as to the law as it pertained at the time of the application (post-Ducale).

Barrett J held that he would grant the reliefs sought at items (1) and (2) of the originating notice of motion.

Reliefs granted.

JUDGMENT of Mr Justice Max Barrett delivered on 31st May, 2019.

By letter of 20.08.2015, Ms C, a refugee who hails originally from Somalia, made a family reunification application, pursuant to s.18(4) of the Refugee Act 1996,...

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