F.B. v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice McDermott |
| Judgment Date | 05 September 2014 |
| Neutral Citation | [2014] IEHC 427 |
| Court | High Court |
| Date | 05 September 2014 |
[2014] IEHC 427
THE HIGH COURT
BETWEEN
AND
Immigration and Asylum – Family Reunification – s. 18(4) of the Refugee Act 1996 – Financial Dependents – Article 8 of the ECHR
Facts: The applicant sought an order quashing the decision of the respondent refusing to grant family reunification to the applicant”s granddaughters pursuant to s. 18(4) of the Refugee Act 1996 (‘the 1996 Act’). The applicant became an Irish citizen in March 2013 and sought the respondent”s permission to have her granddaughters join her in Ireland. The respondent refused the application on the basis that the applicant failed to demonstrate that her granddaughters were financially dependent upon her as required by s. 18 of the 1996 Act. This refusal formed the basis of the judicial review challenge in the High Court. The applicant claimed that the respondent acted unreasonably or unfairly by failing to consider relevant dependency matters of the children upon her.
Held by McDermott J: The court was not satisfied that the respondent had applied the appropriate test in respect of ‘dependency’ to the relationship between the applicant and her granddaughters, in respect of the financial dependency issue or the wider dependency based on their relationship with her since infancy. In addition, the respondent had not considered the application of Article 8 of the Convention to the circumstances of the applicant and the children. The court was satisfied that this was an error of law and the applicant was entitled to the relief claimed. McDermott J said the respondents” decision should be quashed.
1. The applicant in these proceedings seeks an order or certiorari quashing the decision of the respondent refusing to grant family reunification to the applicant's granddaughters pursuant to s. 18(4) of the Refugee Act 1996.
2. The applicant is resident in the State and originally came to Ireland as a refugee from Nigeria. She was granted a declaration of refugee status in 2008, and subsequently became an Irish citizen in March, 2013. She is in receipt of an old age pension as her sole source of income and welfare assistance in the form of a rent allowance. She is 70 years old.
3. The applicant has been very unwell over the last number of years. She contracted cancer which required major surgery. She remains under medical care.
4. The applicant sought the respondent's permission to have her granddaughters join her in the state, pursuant to s. 19 of the Refugee Act 1996. Her granddaughters, E.S. and E.L., are 15 and 13 years old and her sole living relatives. Their mother died in 2005 and their father disappeared some time before this.
5. The applicant has, since coming to Ireland, remitted some funds to her granddaughters, sending them to a family friend who agreed to take care of the girls in Nigeria. She also arranged for their uncle on their father's side to provide financial assistance to allow the girls to continue their education. The amount remitted has been challenged. Receipts produced by the applicant claim that €494.00 was sent to Nigeria. However, the respondent was not satisfied that €350.00 of that amount was verifiable due to lack of information on the remittance forms. Therefore, the total sent was calculated to be €144.00.
6. The applicant lives in a small two bedroom apartment in Waterford which is said to be large enough to accommodate the applicant and her granddaughters. The Methodist Church in Waterford has also agreed to assist her, and has agreed to finance the girls' education in Ireland.
7. Section 18(4) of the Refugee Act 1996, establishes the conditions for family reunification as follows:-
"18(4)(a) The Minister may, at his or her discretion, grant permission to a dependent member of the family of a refugee to enter and reside in the State and such member shall be entitled to the rights and privileges specified in section 3 for such period as the refugee is entitled to remain in the State.
(b) In paragraph (a), "dependent member of the family", in relation to a refugee, means any grandparent, parent, brother, sister, child, grandchild, ward or guardian of the refugee who is dependent on the refugee or is suffering from a mental or physical disability to such extent that it is not reasonable for him or her to maintain himself or herself fully."
8. A first application for reunification was made on the applicant's behalf by her pastor in February, 2011 and was subsequently refused on 14 th December.
9. A further application was made by the applicant's solicitors on 3 rd September, 2012, and was ultimately refused on 4 th April, 2013, on the basis that the applicant failed to show that her granddaughters were financially dependent upon her. That refusal forms the basis for this judicial review challenge.
10. When applying for asylum, the applicant stated in her questionnaire that she had two children in Nigeria, a daughter B.B., and a son, D.B., and that she had an additional dependent; her granddaughter, E.L.. Her granddaughter was six years old at the time, having been born in 2000.
11. The applicant's last place of residence in Nigeria was in Ofor in Agun State where she lived with her husband and their two children. When asked about the whereabouts of her children, the applicant said that both were living in Northern Nigeria. When asked about her granddaughter, the applicant claimed that she had been living with her but had to be given to her husband's friend's wife. This granddaughter was her daughter's daughter, and came to live with her after the death of the child's father. By that time the applicant has lost contact with her daughter who wanted the child to live with her because she had since remarried.
12. The Office of the Refugee Appeals Commissioner rejected the initial application and on appeal to the Refugee Appeals Tribunal, the above facts were reiterated namely, that the child's father had died, the mother had remarried and moved to Northern Nigeria and her husband's friend was now taking care of the child, though she had looked after the child before she left Nigeria.
13. The first application was made by letter and contained a significantly different account of her family history. The applicant claimed that her daughter died in December, 2005 and left behind two daughters and not one as previously stated in her asylum application. The two granddaughters were E.S. and E.L.. The death of her daughter and the existence of the second grandchild were never mentioned in the course of the asylum application. Discrepancies also arose concerning the personal history of the children's father. He had been described as married to the applicant's daughter. In this application the father was said never to have married the applicant's daughter, notwithstanding the previous claim that her daughter had remarried and moved to Northern Nigeria in the asylum application and had thereby abandoned the family. It had also been claimed that the father was dead. The applicant made fund transfers to Nigeria at this time. The grandchildren were left in the care of a family friend, Ms. O., while the children's uncle was paying for their upkeep and education.
14. ORAC replied by letter with a number of queries, and seeking an explanation as to why the applicant claimed to have only one granddaughter in her refugee application. By reply, the applicant explained that when she left Nigeria the elder granddaughter, E.S., was living with her father and the younger one was living with her. She explained that she had only referred to the younger granddaughter in the asylum application because she was living with her. The respondent wrote to the applicant refusing the application on 13 th January, 2012.
15. The second application was made by the applicant's solicitors on 28 th August, 2012. The applicant claimed that her daughter died on 19 th December, 2005, and that her husband abandoned the two granddaughters, and had not been heard from since.
16. It was claimed that the younger granddaughter lived with the applicant until she left Nigeria for Ireland and was left in the care of a family friend in Lagos. The elder granddaughter, was living with her father until his disappearance, but was now also being cared for by the family friend in Lagos. The applicant also said that she only learned of her daughter's death when in Ireland and did not know about it prior to leaving Nigeria.
17. The applicant was asked to clarify a number of issues arising from the second application; namely the circumstances surrounding the alleged death of her daughter in 2005 and the why the death was only registered in 2011. The status of the children's father was also queried as it was originally claimed that he was dead.
18. The applicant, through her solicitors, stated that she learned of her daughter's death in 2006, and that she considered the children's father dead as he was a "constant pest and trouble rouser".
19. These responses caused a further request for clarification, as it was pointed out that the applicant told the Tribunal at her appeal in December, 2007 that her daughter was still alive. It was also indicated that the applicant had only ever mentioned having one granddaughter in her interactions with the authorities. Documentary evidence was also sought from the Deputy Registrar of Births and Deaths in Nigeria concerning the registration of her daughter's death.
20. The applicant's solicitors replied and claimed that the applicant found it hard to...
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F.B. v Minister for Justice and Equality
...review. The proceedings were ultimately heard by McDermott J. in the High Court and he gave a detailed judgment on 5 September 2014: [2014] IEHC 427. For the reasons set out in that judgment, McDermott J. concluded that the refusal should be quashed. In brief, the Court considered a variety......