F.B. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins
• Judgment Date: 07 April 2020
• Neutral Citation: [2020] IECA 89
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 78/2019
• Date: 07 April 2020

BETWEEN

F.B.

APPLICANT/RESPONDENT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT/APPELLANT

[2020] IECA 89

Costello J.

Ní Raifeartaigh J.

Collins J.

Record Number: 78/2019

THE COURT OF APPEAL

Judicial review – Permission to enter and reside in the State – Dependent family members – Appellant seeking to appeal against part of the judgment and order of the High Court quashing the decision of the appellant to refuse permission to enter and reside in the State – Whether the judge had erred in granting relief on a basis not pleaded by the respondent

Facts: The applicant/respondent (F.B.) made a number of unsuccessful applications for her granddaughters (E.S. and E.L.) to be permitted to enter and reside in the State pursuant to s. 18(4) of the Refugee Act 1996 on the basis that they were dependent on her and were therefore “dependent member[s] of [her] family” for the purposes of s. 18(4). Judicial review proceedings were brought by the applicant challenging the refusal of such applications. The applicant succeeded in the High Court. The respondent/appellant, the Minister for Justice and Equality, appealed to the Court of Appeal against that part of the judgment and order of the High Court (Keane J), made on 13 December 2018 as quashed the decision of the Minister to refuse to permit E.S. to enter and reside in the State. The Minister also sought a consequential variation of the order for costs made by the High Court. The Minister’s notice of appeal set out a number of grounds of appeal, including that the judge had erred in granting relief on a basis not pleaded by the applicant, that he had inappropriately relied on information (an extract from G. Shannon, Child Law (Thomson, 2nd ed, 2010) and the Separate Child in Europe Programme Position Paper) which had not been the subject of any submissions, that he had erred in his treatment of the DNA evidence and that he had erred in failing to take account of the fact that the applicant had at all times claimed that E.S. was her granddaughter “and never claimed that there was any other relationship between them, whether as guardian and ward or otherwise”. The notice of appeal also asserted that the High Court erred in holding or suggesting that the Minister ought to have “construed” E.S. as a ward of the applicant for the purposes of determining the application under s. 18(4).

Held by Collins J that he agreed with the Minister that the ground on which the decision in relation to E.S. was quashed by the High Court was one which was outside the scope of the grounds and outside the parameters of the grant of leave and which, accordingly, ought not to have been considered by the High Court judge. Collins J accepted the Minister’s submission that the ground on which the High Court held that the Minister’s decision in respect of E.S. was not one properly before him, not simply because it was not a pleaded ground but also because no such ground was advanced by the applicant at the hearing in the High Court; on that basis, the decision of the High Court could not stand. While Collins J did not think that it was either possible or desirable to set down any hard and fast rule of general application, it seemed to him that, in the particular circumstances, the Minister was not under any obligation to go beyond the identified basis of the application that had been made to him in relation to E.S. Having regard to that conclusion, Collins J found that it was not necessary to consider whether any lack of candour on the part of the applicant would justify the denial of relief to her.

Collins J held that he would allow the appeal, set aside the order made by the High Court in relation to E.S. and dismiss the application for judicial review relating to her.

Appeal allowed.

JUDGMENT of Mr Justice Maurice Collins delivered on the 7 ^th day of April, 2020.

PRELIMINARY

The Appeal

1 F.B., the applicant in these proceedings ( “the Applicant”), has made a number of unsuccessful applications for E.S. and E.L. to be permitted to enter and reside in the State pursuant to section 18(4) of the Refugee Act, 1996 ( “the 1996 Act”) on the basis that they were her granddaughters and were dependent on her and were therefore “dependent member[s] of [her] family” for the purposes of section 18(4). These are the second judicial review proceedings brought by the Applicant challenging the refusal of such applications.

2 The Applicant succeeded in the High Court: [2018] IEHC 716. This appeal is brought by the Minister for Justice and Equality ( “the Minister”) against that part of the Judgment and Order of the High Court (Keane J.), made on 13 December 2018 as quashed the decision of the Minister to refuse to permit E.S. to enter and reside in the State … The Minister also seeks a consequential variation of the order for costs made by the High Court.

3 The High Court also quashed the decision of the Minister to refuse entry to E.L. but that aspect of the High Court's decision is not the subject of appeal, and at the hearing of this appeal the Court was informed by Counsel for the Minister that E.L. has since been given leave to enter and reside in the State pursuant to section 18(4) of the 1996 Act.

4 By Order dated 5 April 2019, this Court stayed the High Court Order insofar as it related to E.S. and also stayed the execution of 50% of the taxed costs of the High Court.

5 For the reasons set out in this judgment, I would allow the appeal, set aside the order made by the High Court in relation to E.S. and dismiss the application for judicial review relating to her.

Applicable Legal Framework

6 Prior to its repeal, section 18 of the 1996 Act provided for refugees to apply to the Minister for permission to be granted to a member of his or her family to enter and reside in the State. Such applications are commonly known as family reunification (FRU) applications.

7 Section 18 draws an important distinction -- one that is not at all obvious without recourse to the definitions in the section -- between the position of a “ member of the family” of the refugee on the one hand and a “dependent member of the family” of such refugee on the other. “Member of the family” (as defined) encompasses the spouse of the refugee (provided the marriage is subsisting), the parents of the refugee (if the refugee is under the age of 18 and is not married) and a child of the refugee (if the child is under 18 and unmarried). The Minister is statutorily required (“… shall grant permission …”) to grant permission to enter and reside to persons established to be a member of the family in the sense just indicated, subject only to considerations of national security or ordre public: section 18(3)(a) and 18(5).

8 “ Dependent member of the family” is defined in section 18(4)(b) of the 1996 Act as meaning:

“ in relation to a refugee, … 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 an extent that it is not reasonable for him or her to maintain himself or her self fully.”

9 In contrast to the position of a “member of the family,” the entry of a “dependent member of the family” into the State is subject to the Minister's discretion ( “The Minister may, at his or her discretion …”): section 18(4)(a). However, as explained by Clarke J. (as then he was) in A.M.S. (Somalia, Family Reunification) v. Minister for Justice & Equality [2014] IESC 65, that discretion, though wide, is not absolute and in exercising it the Minister must have regard to the fact that the section as a whole is intended to confer a benefit on a refugee, and through the refugee on dependent family members, in the form of an enhanced possibility of such persons being permitted into the State. 1 It followed that those to whom the discretionary family reunification provisions applied must be regarded as being in a better position than those to whom the provisions did not apply. 2

10 If permitted to enter by the Minister, a dependent family member is entitled to the rights and privileges set out in section 3 of the 1996 Act (including the right to reside in the State, to travel to and from the State, to enter employment and the right to receive the same medical care and social welfare benefits as those to which Irish citizens are entitled) which again distinguishes their position from that which applies to other categories of discretionary entrant to the State. Members of the family admitted pursuant to section 18 have the same section 3 rights and privileges.

11 It was common case before this Court that “the discretion exercisable under s.18(4) only arose when the two pre-conditions set out in the subsection were met, namely that the required relationship was established and that the refugee relations were dependent in that they relied for subsistence or means of support upon the refugee. If the two conditions are satisfied, the Minister may then exercise a discretion under s.18 (4).” 3 In other words,establishing as a matter of fact one of the specified relationships and the required dependency are statutory pre-conditions to the exercise of the Minister's discretion under section 18(4).

12 The 1996 Act was repealed by the International Protection Act 2015 but it is accepted by the parties that the application the subject of these proceedings and this appeal continues to be governed by section 18 of the 1996 Act. In passing, I note that the 2015 Act does not appear to contain any equivalent to section 18(4), i.e., it does not appear to provide for the discretionary entry into the State of a refugee's dependent family members, as that term is defined in section 18. Accordingly, it does not appear to be correct that the sole difference between section 18 and the equivalent provision in the 2005 Act (which is section 56) is the absence from the latter of...