Ducale and Another v Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: MS JUSTICE M. H. CLARK,
• Judgment Date: 22 January 2013
• Neutral Citation: [2013] IEHC 25
• Court: High Court
• Date: 22 January 2013

[2013] IEHC 25

THE HIGH COURT

Record Number 142 J.R./2012

Ducale & Jama v Min for Justice & AG

JUDICIAL REVIEW

Between:

CASHA DIGALE DUCALE and ABDULLAHI JAMA

APPLICANTS

-AND-

THE MINISTER FOR JUSTICE AND EQUALITY AND THE ATTORNEY GENERAL

RESPONDENTS

REFUGEE ACT 1996 S18(3)

REFUGEE ACT 1996 S18(4)

REFUGEE ACT 1996 S18

X (R) & ORS v MIN FOR JUSTICE & ORS 2011 1 ILRM 444

S (A M)(SOMALIA) & K (A)(AFGHANISTAN) v MIN FOR JUSTICE UNREP CROSS 14.2.2012 2012 IEHC 72

ALI v MIN FOR JUSTICE UNREP COOKE 25.3.2011 2011/2/497 2011 IEHC 115

M (T)(A MINOR) & ORS v MIN FOR JUSTICE UNREP EDWARDS 23.11.2009 2009/37/9192 2009 IEHC 500

REFUGEE ACT 1996 S18(2)

HASSAN v MIN FOR JUSTICE UNREP COOKE 25.11.2010 2010/21/5179 2010 IEHC 426

HAMZA v MIN FOR JUSTICE UNREP COOKE 25.11.2010 2010/22/5576 2010 IEHC 427

M (D) v F (C) & AG UNREP CLARK 27.5.2011 2011/33/9204 2011 IEHC 415

H (ZM)[SOMALIA] v MIN FOR JUSTICE UNREP COOKE 24.5.2012 2012 IEHC 221

EEC DIR 2003/86

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTIONS) REGS SI 518/2006 REG 16

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTIONS) REGS SI 518/2006 REG 16(3)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTIONS) REGS SI 518/2006 REG 16(4)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTIONS) REGS SI 518/2006 REG 16(4)(B)

REFUGEE ACT 1996 S18(4)(B)

IMMIGRATION LAW

Asylum

Family reunification - Dependency - Ward - Statutory interpretation - Whether proper assessment of dependency - Ali v Minister for Justice, Equality and Law Reform [2011] IEHC 115, (Unrep, Cooke J, 25/3/2011); Hamza v Minister for Justice, Equality and Law Reform [2010] IEHC 427, (Unrep, Cooke J, 25/11/2010); Hassan v Minister for Justice, Equality and Law Reform [2010] IEHC 426, (Unrep, Cooke J, 25/11/2010); ZMH (Somalia) v Minister for Justice and Equality [2012] IEHC 221, (Unrep, Cooke J, 24/5/2012); DM v CF [2011] IEHC 415, (Unrep, Clark J., 27/5/2011); TM v Minister for Justice, Equality and Law Reform [2009] IEHC 500, (Unrep, Edwards J., 23/11/2009); AMS (Somalia) v Minister for Justice and Equality [2012] IEHC 72, (Unrep, Cross J., 14/2/2012) and RX v Minister for Justice, Equality and Law Reform [2010] IEHC 446, [2011] 1 ILRM 444 considered - Refugee Act 1996 (No 17), s 18(4) - Relief granted and matter remitted (2012/142JR - Clark J - 22/1/2013) [2013] IEHC 25

Ducale v Minister for Justice and Equality

Facts: The applicants were a married couple of Somali origin seeking an order of certiorari quashing the decision of a minister which refused reunification of their niece and nephew under s. 18(4) Refugee Act 1996, on the ground that they were not dependent members of the family. The wife of the marriage was declared a refugee in 2004, in 2007 her husband and two biological children were granted permission to enter and reside in Ireland, her niece and nephew who she referred to as her own children who had been orphaned, were refused reunification on two separate applications.

The application was based on two main contentions. Firstly, that the minister had erred in law in not recognising that the niece and nephew qualified for family reunification within the meaning of s. 18(3) Refugee Act and secondly had done so by not considering them to be “dependent members of her family” under s. 18(4)(b) Refugee Act 1996.

The court gave no opinion on what constituted a child under s. 18(3), as it felt that was not the issue in the case.

Clark J held that the minister had indeed erred in law in the assessment of the familial relationship and the issue of dependence. Adoption was not an available option for the applicant, the strength of familial ties should have been properly evaluated; instead the assessment of dependency had been restricted to the narrow issue of being financially dependent. There was objective support that dependency should take into account all relevant social, economic, personal, physical, emotional and cultural bonds between the refugee and family member being considered. In the case the domestic circumstances of the individuals had not even been investigated.

The assessment had been an arbitrary evaluation based on no identified criteria. It had taken place long after the initial application, by the time of which the individuals had reached the age of majority.

An unduly narrow interpretation of dependency had been adopted; the matter would be remitted for fresh consideration.

1 1. The applicants are a married couple of Somali origin. The wife Ms. Ducale was declared a refugee in 2004. In 2007 the husband Mr. Jama and the couple's two biological children were granted permission to enter and reside with Ms. Ducale in Ireland pursuant to s. 18(3) of the Refugee Act 1996. The applicants also claim to be the de facto parents of Ms. Ducale's niece and nephew who were orphaned as infants and have been part of the applicants' family ever since. The niece and nephew are nationals of Somalia and they are currently living in abject poverty in Ethiopia. Ms. Ducale has twice applied for permission for them to be reunited with her and her husband and their two biological children in Dublin. The respondent Minister has refused on both occasions, and in his second refusal which is challenged in these proceedings he found that Ms. Ducale had failed to establish that the niece and nephew are dependent on her as is required under s. 18(4) of the Refugee Act 1996. The applicants seek an order of certiorari quashing the decision of the Minister dated 17 ^th October 2011. Cooke J. granted leave on 27 ^th February 2012 on an ex parte basis on the following grounds:

1 1. The first named Respondent erred in law in holding that on the evidence before him the niece and nephew of the first named Applicant, the subject of her application for family reunification, were not "dependent members of her family" within the meaning of section 18 (4) (b) of the Refugee Act 1996 (as amended).

2 2. Having regard to the evidence before him including as to the absence of any system of civil administration in the country of origin, the Minister erred in law in failing to consider that the said niece and nephew qualified for family reunification within the meaning of Section 18(3) of the Refugee Act as amended.

General observations

2 2. Cases such as this one come with increasing frequency before the asylum and immigration division of the judicial review courts especially in relation to the family reunification of refugees from Somalia who have fled their country in vast numbers. Relative to the numbers travelling to other EU Member States, the numbers seeking asylum in Ireland are not large but Somalis nevertheless tend to make up a significant proportion of those refugees who come before the Courts having been declared to be refugees and having sought and been refused family reunification. Somali refugees also tend to have extended families arising from laudable cultural obligations to raise the children of deceased family members as their own and to care for elderly parents. The civil war of more than 30 years' duration, the persecution of minority tribes and famine have all created a catastrophic humanitarian disaster with many orphans and separated families and millions of displaced persons living in abject poverty in neighbouring countries. The total breakdown of civil society and the rule of law and the absence of a normal and functioning civil service or legal institutions outside small areas of Mogadishu render it extremely difficult for refugees, or indeed the Refugee Applications Commissioner or the respondent Minister, to establish the legitimacy of claimed extended family ties. However, the exodus of Somalis in huge numbers from their failed State is well documented and the courts have frequently considered reliable country of origin information confirming that minority tribes have particularly badly affected by the war in that the strong majority clans have taken advantage of the breakdown of law and order to divest minority clans of their lands, livestock and property. They are vulnerable to being abducted and used as unpaid labour and worse by these stronger clans who have formed their own militia. The first applicant Ms. Ducale belongs to a persecuted minority tribe and was recognised as a refugee for that reason.

3 3. The difficulties in obtaining identity documents from a failed State has made it frequently necessary for DNA testing to be carried out in relation to persons who are claimed to be the children and other family members of Somalis refugees. The Court is aware from previous family reunification (FRU) applications that the Somali Embassy in Addis Ababa has in the past issued certificates of birth, marriage and death on the mere say-so of an applicant. Not surprisingly, these certificates are of no evidential value although desperate refugees have spent scarce and valuable resources in obtaining such documents in a fruitless attempt to appease the authorities in the Minister's FRU Section.

4 4. Section 18 of the Refugee Act 1996 regulates the circumstances in which the family members of a refugee may be granted permission to enter the State and reside with the refugee in Ireland, commonly known as "family reunification of refugees". The details of s. 18 have been referred to at length in many previous cases (see e.g. R.X. v. The Minister [2010] IEHC 446; Shariff & Anor v. The Minister [2012] IEHC 72, Ali v. The Minister [2011] IEHC 115 and M. & Ors v. The Minister [2009] IEHC 500) and it is unnecessary therefore to do more than briefly outline the position. Where the refugee is an adult, s. 18(3) obliges the Minister to grant permission to his or her spouse and unmarried children under 18 to join the refugee in Ireland. Where the refugee is under 18 years of age, s. 18(3) obliges the Minister to grant permission to his or her parents...