F.B. v The Minister for Justice and Equality No.2

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 13 December 2018
• Neutral Citation: [2018] IEHC 716
• Court: High Court
• Docket Number: [2017 No. 749 JR]
• Date: 13 December 2018

[2018] IEHC 716

THE HIGH COURT

JUDICIAL REVIEW

Keane J.

[2017 No. 749 JR]

BETWEEN

F.B.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(No. 2)

Judicial review – Permission to enter and reside in the State – Dependent family members – Applicant seeking judicial review – Whether the respondent’s decision was bad in law

Facts: The applicant applied to the High Court seeking judicial review of a decision by the respondent, the Minister for Justice and Equality, dated 5 September 2017, under s. 18(4) of the Refugee Act 1996, to refuse permission to two children (‘E.L.’ and ‘E.S.’) to enter and reside in the State as dependent family members, specifically as granddaughters of the applicant, who was a refugee. The applicant contended that the Minister’s decision concerning both children was bad in law on each of two grounds: first, because the Minister failed to address certain submissions made on their behalf; and second, because the Minister disregarded the requirements of both Article 41 of the Constitution of Ireland and Article 8 of the European Convention on Human Rights, in reaching it. The applicant also contended that the Minister’s decision concerning E.L. was invalid on each of three additional grounds: first, because the reason given for it was impermissibly opaque and inadequate; second, because it was irrational or unreasonable, or both; and third, because it was capricious.

Held by Keane J that there was a fundamental error of law in the Minister’s decision in the manner and basis upon which it purported to identify the best interests of E.L. such that it could not stand. Keane J held that, in the case of E.S., the limited evidence before the Court of the results of the DNA tests concerning her did not justify the summary refusal of permission for her to enter and reside in the State as a dependent family member of the applicant, particularly in light of the rationale of the objective of family reunification that underlies the enactment of s. 18, which is to help create socio-cultural stability by facilitating the integration of third country nationals in the State, thereby also promoting economic and social cohesion. Keane J held that, in adopting a narrow view of the application for permission for E.L. to enter and reside in the State, i.e. that it must be considered solely by reference to the specific family relationship asserted, that of grandparent and dependent grandchild, instead of by reference to the broad terms of s. 18(4)(b), the Minister was ignoring the refugee family reunification policy underlying the relevant provision and, thus, fell into error.

Keane J held that the applicant was entitled to an order of certiorari to quash the Minister’s decision to refuse permission to E.L. and E.S. to enter and reside in the State under s. 18(4).

Application granted.

JUDGMENT of Mr Justice David Keane delivered on the 13th December 2018

Introduction

1 This is the judicial review of a decision by the Minister for Justice and Equality (“the Minister”), dated 5 September 2017 (“the decision”), under s. 18(4) of the Refugee Act 1996, as amended (“the Refugee Act”), to refuse permission to two children (“E.L.” and “E.S.”) to enter and reside in the State as dependent family members - specifically, as granddaughters - of the applicant, who is a refugee. An application by a refugee, under s. 18(1) of the Refugee Act, for such permission is colloquially known as a family reunification application or, in the administrative shorthand of the Department of Justice and Equality (“the department”), an FRU application.

2 This is the second set of proceedings between the applicant and the Minister about this family reunification application. In F.B. v Minister for Justice and Equality [2014] IEHC 427 (Unreported, High Court, 5th September, 2014) McDermott J quashed an earlier decision by the Minister, dated 4 April 2013, to refuse the permission sought.

Procedural history

3 The applicant's statement of grounds is dated 3 October 2017 and was filed on the same day. It is accompanied by a short verifying affidavit of the applicant, sworn on 2 October 2017 but is grounded on an affidavit sworn by the applicant's solicitor on 29 September 2017.

4 By order made on 9 October 2017, Humphreys J granted leave to the applicant to seek orders of certiorari separately quashing the Minister's decision in respect of each child. The appropriate notice of motion then issued on 17 November 2017, returnable for 27 November 2017. The Minister filed a statement of opposition on 22 January 2018. It is supported by an affidavit of verification sworn on 19 January 2018 by Declan Crowe, an assistant principal in the Minister's Department. The proceedings came on for hearing before me on 11 May 2018.

Reasons for each decision, grounds of challenge and grounds of opposition

5 E.L. was refused permission to enter and reside in the State because the Minister is not satisfied that it is in that child's best interests to do so. E.S. was refused that permission because the Minister is not satisfied that she is a member of the family of the applicant.

6 The applicant contends that the Minister's decision concerning both children is bad in law on each of two grounds: first, because the Minister failed to address certain submissions made on their behalf; and second, because the Minister disregarded the requirements of both Article 41 of the Constitution of Ireland and Article 8 of the European Convention on Human Rights, in reaching it. The applicant also contends that the Minister's decision concerning E.L. is invalid on each of three additional grounds: first, because the reason given for it is impermissibly opaque and inadequate; second, because it is irrational or unreasonable, or both; and third, because it is capricious.

7 The Minister denies each of the grounds on which the applicant asserts that the decision is invalid but also pleads that the applicant had demonstrated a clear lack of candour that would, in any event, disentitle her to any relief on two specified grounds that will shortly become evident.

Background

8 The applicant's personal circumstances and the history of her refugee status and family reunification applications are described in the judgment of McDermott J.

9 To recapitulate briefly, the applicant is a 75-year-old widow, who arrived in Ireland in 2005 from Nigeria. In 2008, she obtained a declaration of refugee status and, in December 2012, she became a naturalised Irish citizen. The applicant had a serious pre-existing illness that was diagnosed after her arrival in the State and for which she received extensive medical treatment here. Although that treatment was successful, she remains in poor health. The applicant is in receipt of the State old-age pension as her sole source of income and receives welfare assistance in the form of rent allowance.

10 The applicant first applied for family reunification with E.L. and E.S. on 22 February 2011. That application was refused on 14 December of that year.

11 On 29 August 2012, through her solicitor, the applicant wrote to the Minister's department to make a second family reunification application. According to the applicant, E.L. was then 12 years old (having been born on 6 June 2000) and E.S. was then 14 years old (having been born a little over two years earlier, on 13 April 1998).

12 The Minister refused that application on 3 April 2013 on the basis that the applicant had failed to establish that the children were dependent on her for the purposes of s. 18 of the Refugee Act because, in the Minister's view, the evidence presented was insufficient to establish their financial dependence upon her. In the judgment that he delivered on 5 September 2014, McDermott J quashed that decision for two separate reasons.

13 The first was that he was not satisfied that the Minister had applied the correct test of dependency under s. 18 of the Refugee Act, either by adopting the broad conception of that term envisaged under various instruments promulgated by the office of the United Nations High Commissioner for Refugees (“UNHCR”) and necessary to effect a harmonious interpretation with the provisions of Council Directive 2003/86 on Family Reunification (albeit that Ireland has opted out of that EU legislation); see Hamza v Minister for Justice, Equality and Law Reform [2010] IEHC 427, (Unreported, High Court (Cooke J), 25th November, 2010) and the judgments of Clark J in Ducale v Minister for Justice and Equality & Anor [2013] IEHC 25 (Unreported, High Court, 22nd January, 2013) and A.A.M. (Somalia) v Minister for Justice and Equality [2013] IEHC 68 (Unreported, High Court, 15 February, 2013), or by correctly considering what amounts to financial dependency as just one manifestation of that broader conception of dependency; see A.M.S. v Minister for Justice and Equality [2014] IEHC 57 (Unreported, High Court (Mac Eochaidh J), 13 February, 2014).

14 The second was that the Minister had failed to have regard to the rights of the applicant and her granddaughters to respect for the family life under Article 8 of the European Convention on Human Rights or, more immediately and fundamentally under the legal order of the State, to their right to family life under Article 41 of the Constitution of Ireland; see R.X. v Minister for Justice, Equality and Law Reform [2010] IEHC 446 (Unreported, High Court (Hogan J), 10 December, 2010).

15 Following the judgment of McDermott J, the applicant wrote to the Minister on 23 September 2014 requesting a fresh decision on the family reunification application. After further exchanges of correspondence and at the request of the Office of the Refugee Applications Commissioner, which the Minister had tasked with conducting further investigations, the applicant submitted another completed questionnaire and supporting documentation under cover of a letter...