I.I. (Nigeria) v Minister for Justice & Equality

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 29 October 2019
• Neutral Citation: [2019] IEHC 729
• Docket Number: [2019 No. 85 J.R.]
• Date: 29 October 2019

[2019] IEHC 729

THE HIGH COURT

JUDICIAL REVIEW

Richard Humphreys

[2019 No. 85 J.R.]

BETWEEN

I.I. (NIGERIA)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL

AND

IRELAND

RESPONDENTS

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

NOTICE PARTY

Judicial review – Family reunification – Time limit – Applicant seeking certiorari of the decision to refuse family reunification – Whether the International Protection Act 2015 is contrary to the Constitution, the ECHR and EU law

Facts: On 15th October, 2011, the applicant’s mother left the applicant in the care of a maternal aunt. A care order was granted under s. 18 of the Child Care Act 1991 on 21st June, 2010. Thereafter the Child and Family Agency was in a position to act on the applicant’s behalf at all material times. The applicant was granted a declaration of refugee status on 25th September, 2014. The social work department of the Child and Family Agency did not make an application on the applicant’s behalf for family reunification until July, 2018 when the applicant was seventeen. On 8th August, 2018, the Department of Justice and Equality requested full details of all family members in respect of whom family reunification was sought and that was replied to on 27th August, 2018. On 3rd September, 2018, the Department refused the application on the grounds that it was not submitted within twelve months of the commencement of the International Protection Act 2015. Proceedings were filed on 11th February, 2019. The High Court (Humphreys J) granted leave on 15th February, 2019, the proceedings having been instituted through the applicant’s next friend and social worker. The primary reliefs sought were certiorari of the decision to refuse family reunification and a declaration that the Act is contrary to the Constitution, the ECHR and EU law, as well as other related reliefs. The only basis of the challenge to the decision in question, apart from a challenge to the legislation, was that the applicant had a vested right to apply under the Refugee Act 1996 s. 18(3) without any time limit and that she carried this right forward for an unlimited period notwithstanding the repeal of the 1996 Act by the 2015 Act.

Held by Humphreys J that the “vested rights” argument, relying on a very wide interpretation of s. 27 of the Interpretation Act 2005, would deprive the concept of repeal of much of its meaning, creating intolerable uncertainty and giving the 1996 Act a ghostly after-life such that years or even decades after its repeal, it could violently jerk back into life without warning at the whim of an applicant such as this one. He held that the applicant had not laid the evidential basis for the challenge mounted. He also held that the applicant had available alternative remedies. He held that it was not a breach of any particular constitutional right to have a twelve-month time limit for family reunification or even to have a time limit that legal guardians must exercise on behalf of a person who is a minor at the time. He held that the fact that this application fell outside art. 23 of Council Directive 2004/83 (the Qualification Directive) had the consequence that the State was not implementing EU law in deciding on this family reunification application and therefore the EU Charter on Fundamental Rights was simply not engaged. He held that, given that the time limits for application under the ECHR itself are non-extendable no matter what extenuating circumstances might exist, it seemed implausible that Strasbourg would condemn a generous fixed time limit of one year for family reunification (even longer in transitional cases such as that of this applicant), especially where a non-time-limited non-statutory application process as a fall-back is available.

Humphreys J held that the application would be dismissed.

Application dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 29th day of October, 2019

1 Sometimes litigants or their representatives come forward with an interesting legal point brandishing an armoury of authorities, while simultaneously seeking to deflect attention from the lack of an adequate evidential foundation for that interesting point. This is such a case.

2 On 15th October, 2011 the applicant's mother left the applicant in the care of a maternal aunt. A care order was granted under s. 18 of the Child Care Act 1991 on 21st June, 2010. Thereafter the Child and Family Agency was in a position to act on the applicant's behalf at all material times. The applicant was granted a declaration of refugee status on 25th September, 2014. The next logical step would have been to apply for family reunification if appropriate. It is notable that the “evidence” put forward by the applicant as to the reasons for the failure by the CFA as next friend to seek family reunification for a period of four years are inadequate and hearsay in nature. The evidence of Anthony Hegarty, social worker, is certainly inadmissible hearsay. There is no explicit affidavit evidence on the subject from either the applicant herself, after coming of age, or from her aunt. There is no explanation of any kind on affidavit as to on what basis the aunt's mother ( i.e., the applicant's grandmother) embarked on a mysterious excursion to Ghana rather than Nigeria in search of the applicant's mother: see para. 5 of Mr. Hegarty's affidavit.

3 The applicant's solicitor, Mary Henderson, avers at para. 8 of her affidavit that the applicant was unable to make a family reunification application as the whereabouts of her mother were unknown. That is again hearsay and inadmissible but in any event is totally unparticularised and unexplained.

4 The claim is made that the parents’ whereabouts were unknown but no evidence has been shown of adequate or reasonable efforts to make contact with the parents or family members. There is no evidence as to when the aunt was asked to contact the parents or why she was not asked earlier. I find that the applicant has failed to put forward admissible evidence as to a genuine inability of the next friend or the aunt on her behalf to contact her mother or other family members within the statutory time limit for applications for family reunification.

5 Even if I am wrong about that, and even if the applicant's relatives were genuinely uncontactable, there was nothing stopping the applicant's next friend, the Child and Family Agency, from applying for family reunification within the statutory period of twelve months from the commencement of the International Protection Act 2015 on the basis that they were endeavouring to make contact with the applicant's relatives, as the respondents’ evidence makes clear. The Child and Family Agency as a statutory body must be presumed to know its legal responsibilities and the entitlements of children in its care. There is certainly no averment on its behalf that it was unaware of the twelve-month time limit following commencement of the 2015 Act, and it would be strange to say the least if that were so.

6 On 31st December, 2016, the Refugee Act 1996 was repealed on the commencement of the 2015 Act. No application had been made under the 1996 Act on behalf of the applicant. The Irish Naturalisation and Immigration Service published a notice on its website on 31st August, 2017 indicating that persons previously granted a declaration of refugee status were entitled to make an application for family reunification up to 30th December, 2017. No such application was made on behalf of this applicant by that time. The social work department of the Child and Family Agency did not make an application on the applicant's behalf for family reunification until July, 2018 when the applicant was seventeen.

7 On 8th August, 2018, the Department of Justice and Equality requested full details of all family members in respect of whom family reunification was sought and that was replied to on 27th August, 2018. On 3rd September, 2018 the Department refused the application on the grounds that it was not submitted within twelve months of the commencement of the 2015 Act.

8 The applicant has to this day made no application under the non-EEA policy document or for grant of visas for family members even without prejudice to the present proceedings, which might have achieved the object sought, namely family reunification. Instead of that simple and straightforward available step, she goes for the nuclear option of seeking to have the legislation struck down, not just as it applies to her but urbi et orbi.

9 The proceedings were filed on 11th February, 2019, out of time, although the State is not particularly contesting the time issue so it might be churlish of me to hold against the applicant on that ground alone. I granted leave on 15th February, 2019, the proceedings having been instituted through the applicant's next friend and social worker. The primary reliefs sought are certiorari of the decision to refuse family reunification and a declaration that the Act is contrary to the Constitution, the ECHR and EU law, as well as other related reliefs.

10 On 15th May, 2019 the applicant came of age. She then swore an affidavit on 18th June, 2019 which is one page long, does not purport to verify the statement of grounds and says nothing whatsoever about the huge evidential gaps in relation to the issue of the contactability of her relatives.

11 I have now received submissions from Mr. Michael Lynn S.C. (with Ms. Patricia Brazil B.L.) for the applicant and from Mr. David Conlan Smyth S.C. (with Ms. Emily Farrell B.L.) for the respondents.

The claim that the applicant has a vested right under a repealed enactment

12 The only basis of the challenge to the decision in question, apart from a challenge to the legislation, is that the applicant had a vested right to apply under the Refugee Act 1996 s. 18(3) without any time limit and that she carried...