H.A. v The Minister for Justice

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Donnelly
• Judgment Date: 22 July 2022
• Neutral Citation: [2022] IECA 166
• Docket Number: Record No.: 2022/28

H.A.

Respondent

and

The Minister for Justice

Appellant

[2022] IECA 166

Donnelly J.

Ní Raifeartaigh J.

Collins J.

Record No.: 2022/28

THE COURT OF APPEAL

CIVIL

Family reunification – Judicial review – International Protection Act 2015 s. 56 – Appellant appealing against an order of certiorari quashing the appellant’s decision to refuse the respondent’s application for family reunification – Whether the High Court was correct in finding that a Declaration of Responsibility from a Somali court had not been considered by the decision-maker on behalf of the appellant

Facts: The respondent, a national of Somalia, had been granted refugee status by the appellant, the Minister for Justice. Her application for permission for her niece and nephew to enter and reside in the State under the family reunification provisions of s. 56 of the International Protection Act 2015 was refused by the Minister. The respondent’s subsequent claim for judicial review of that decision resulted in the High Court (Ferriter J) granting an order of certiorari quashing the Minister’s decision to refuse her application and remitting the application to the Minister for reconsideration. It was against the judgment and order of Ferriter J that the Minister appealed to the Court of Appeal. The respondent presented, in support of her application to the Minister, a Somali Court “Declaration of Responsibility” in relation to the children, but her application was rejected without mentioning that Declaration. The first issue to be decided by the Court of Appeal was whether the High Court was correct in holding that this was a matter which was not considered by the decision-maker. The remaining issues were somewhat intertwined; whether the Declaration was relevant and material to the matter before the decision-maker, and whether the High Court erred in granting certiorari where, the Minister alleged, it was futile having regard to the Declaration and the nature of the application made by the respondent.

Held by Donnelly J that the application for family reunification under s. 56(9)(d) of the 2015 Act made by the respondent was on the basis that she was the non-biological mother of two children over whom she had a Declaration of Responsibility from a Somali court. Donnelly J held that the High Court judge correctly found that this Declaration had not been considered by the decision-maker on behalf of the Minister and that it was relevant and material to the issue of whether the child was a child of the respondent within the meaning of the statutory provision. Donnelly J held that the Minister’s argument that the trial judge incorrectly granted an order of certiorari on the grounds that to do so was futile as the remitted reconsideration of the respondent’s case was in effect bound to fail and thus would confer no benefit upon her must be rejected. Donnelly J held that the onus was on the Minister to establish that it was very clear that the respondent had no case and that the trial judge had wrongly exercised his discretion to grant the relief and she had failed to discharge that onus. Donnelly J held that the respondent’s case had reached the level of arguability that is required before a court should decline the invitation to refuse to grant certiorari on the ground that the subsequent remittal would be a futile exercise. Donnelly J held that the Minister had not succeeded in establishing that it would be an unjust result to grant the order of certiorari in the case. Having said that the respondent’s argument had reached the level of arguability, Donnelly J held that it was neither appropriate nor necessary to engage any further in the merits of the respective arguments made by the parties.

Donnelly J dismissed the appeal. She held that as the respondent had been entirely successful in opposing the appeal, she was entitled to the costs of the appeal.

Appeal dismissed.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Ms. Justice Donnelly delivered (via electronic delivery) on the 22 ^nd day of July 2022

Introduction

1 . The respondent to this appeal is a national of Somalia who has been granted refugee status by the appellant (“the Minister”). Her application for permission for her niece (“X”) and nephew (“Y”) to enter and reside in the State under the family reunification provisions of s. 56 of the International Protection Act, 2015 (“the 2015 Act”) was refused by the Minister. The respondent's subsequent claim for judicial review of that decision resulted in the High Court (Ferriter J.) granting an order of certiorari quashing the Minister's decision to refuse her application and remitting the application to the Minister for reconsideration. It is against the judgment and order of Ferriter J. that the Minister appeals.

2 . The right to family reunification of a sponsor (including a refugee) with her child is governed by the provisions of s. 56 of the 2015 Act. The Supreme Court, in X v. Minister for Justice and Equality [2020] IESC 30, delivered on the 9 ^th June, 2020, held that “ a child of the sponsor” can “ only mean a biological or adopted child” (para. 107). In circumstances set out in more detail below, the respondent presented, in support of her application to the Minister, a Somali Court “ Declaration of Responsibility” in relation to the children, but her application was rejected without mentioning this Declaration. The first issue to be decided is whether the High Court was correct in holding that this was a matter which was not considered by the decision-maker. The remaining issues are somewhat intertwined; whether the Declaration was relevant and material to the matter before the decision-maker, and whether the High Court erred in granting certiorari where, the Minister alleges, it is futile having regard to the Declaration and the nature of the application made by the respondent.

Background and facts

3 . The respondent arrived in the State on the 6 ^th April, 2018 as an asylum seeker. She applied for international protection and was subsequently declared a refugee by the Minister on the 9 ^th July, 2019. On the 11 ^th June, 2020, the respondent applied for permission to the Minister for Justice for her husband, her niece and her nephew to enter and reside in the State under section 56 of the International Protection Act, 2015. She was a “ qualified person” within the meaning of the section and as such she was entitled to make an application to the Minister for permission for certain specified members of her family to enter and reside in the State.

4 . The respondent's niece and nephew, who are cousins, are orphans as their respective parents died during fighting in Somalia. The respondent had left Somalia on her own but before she left she was living with her husband, her mother, her niece and her nephew. On the 11 ^th November, 2019, a Somali Court, having heard from two witnesses on oath and having heard that the respondent, who “ currently live (sic) in Ireland”, accepted responsibility for the two children, declared, after scrutiny, “ it's indispensable to transfer the children and (sic) taken care of having no other Parents to look after their career”.

5 . On the 11 ^th June, 2020, solicitors for the respondent applied, by a single letter, for family reunification pursuant to s. 56 in relation to the respondent's husband and the two children. The application in respect of the children expressly stated that they were “ non-biological” and the Declaration of Responsibility was one of a number of documents attached to the letter. The letter referred to the fact that children's parents were deceased and explained that the respondent “ has been granted responsibility for them as their closest surviving relative.” The letter referred to “ the recent judgment of the High Court (Mr Barrett J) which states that the term ‘child’ in s.56(9) is not defined, and that it can extend to non-biological children.” The reference to the “ recent judgment” of Barrett J. was a reference to his judgment in X v. Minister for Justice and Equality [2019] IEHC 284. In fact, two days before that letter was written, the Supreme Court had overturned the judgment of Barrett J. on appeal and had specifically rejected his holding that, given the “ wide diversity of family structures”, s. 56 family reunification applied to a wider cohort of children other than the biological/adopted child of the sponsor: [2020] IESC 30.

6 . The application was supplemented with further documentation in July 2020. No reference was made to the Supreme Court decision in X. Receipt of the supplemental documents was acknowledged by letter of the 28 ^th July, 2020. Three further letters were sent to the respondent on the 28 ^th August, 2020. Receipt of the application in respect of the respondent's husband was acknowledged by the Minister, and that letter contained a list of documents received which included the Declaration of Responsibility. By separate letter, the Minister acknowledged receipt of a number of documents; these did not include the Declaration of Responsibility. The letter stated: “ Please find enclosed a decision letter to be forwarded to your client.” The decision-maker was the same person who signed all three of these letters. In the decision letter, the decision-maker recited the three definitions of a member of the family for the purpose of family reunification pursuant to s. 56(9) of the 2015 Act: a “ spouse or civil partner”; a “ child of the sponsor who is under the age of 18 and unmarried” at the time of the application; and, where “ the sponsor was under 18 and unmarried”, their parents, and unmarried minor children. The letter then stated “ [a]s [X] and [Y] do not come within the definition of member of the family your application in respect of them cannot be accepted.”

7 . The respondent's solicitors, by letter of the 9 ^th October, 2020, sought a review of the decision as they believed...