KN v Minister for Justice & Equality, MAM v Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 19 June 2020
• Neutral Citation: [2020] IESC 32
• Court: Supreme Court
• Docket Number: [S.C. Nos. 113 & 111 of 2019],[RECORD NO.: S:AP:IE:2019:000113]
• Date: 19 June 2020

BETWEEN:

M.A.M. (SOMALIA)

APPLICANT/APPELLANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

AND

K.N. (UZBEKISTAN), E.N., S.M. (A MINOR SUING BY HER GRANDMOTHER AND NEXT FRIEND, K.N.)

AND

Y.M. (A MINOR SUING BY HER GRANDMOTHER AND NEXT FRIEND, K.N.)

APPLICANT/APPELLANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2020] IESC 32

O'Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

Charleton J.

[RECORD NO.: S:AP:IE:2019:000113]

[RECORD NO.: S:AP:IE:2019:000111]

THE SUPREME COURT

Family reunification – Refugee Act 1996 s. 18 – Eligibility – Appellants seeking family reunification – Whether the fact that the appellants became citizens deprived them of the right to apply for family reunification under s. 18 of the Refugee Act 1996

Facts: The appellant in Case 1 and the first appellant in Case 2 were granted asylum and later received declarations pursuant to s. 17(1) of the Refugee Act 1996. As a result, they were eligible to bring family members to the State. They availed of this opportunity. Both appellants subsequently became citizens of the State. Later, they applied to bring in other close family members to join them. But, by then, the Oireachtas had enacted the International Protection Act 2015. The appellants therefore applied under the new Act. However, the respondent, the Minister for Justice and Equality, held that, as the appellants had, by that time, become citizens of the State, they were ineligible to apply for family reunification under the 2015 Act. The question of eligibility fell to be determined under the 1996 Act. The High Court and the Court of Appeal concluded that by becoming citizens, neither of the appellants could be considered to be a “refugee” within the meaning of the 1996 Act. The Court of Appeal held that neither appellant could be said to have a “refugee declaration” still in force. The Court concluded that the s. 17 declarations they previously held had been revoked by “operation of law” once each acquired Irish citizenship; thus, they were no longer eligible to avail of s. 18 of the 1996 Act. The appellants appealed to the Supreme Court.

Held by MacMenamin J that the consequence of the interpretation urged by the Minister would be to create substantial legislative uncertainty when the purpose of the 1996 Act was to achieve clarity. MacMenamin J held that the case advanced would run counter to the legislative aim of the Oireachtas, which was, by a carefully devised procedure defined in the Act, to identify one definitive “mark” of recognition to persons who were entitled to refugee status in this State, which, in turn, would grant them benefits and entitlements; the s. 17 declaration was this sign or mark of recognition. MacMenamin J held that the Minister’s interpretation would require that s. 18 be interpreted restrictively when the indications were that the intention of the Oireachtas was, then, to be generous. MacMenamin J held that the case advanced paid insufficient heed to ss. 6–17 of the Act which created a detailed system to investigate and process claims for recognition. MacMenamin J held that, insofar as there might be statutory ambiguity, the respondent’s case required a form of interpretation of other sections of the Act which, to MacMenamin J’s mind, were strained and not consistent with the legislative purpose when seen in the context of the entirety of the Act. MacMenamin J held that the interpretation arrived at in this judgment was consistent with European Court of Human Rights case law regarding Article 8 private and family rights under the European Convention on Human Rights.

MacMenamin J held that the fact that the appellants became citizens did not deprive them of the right to apply for family reunification under s. 18 of the 1996 Act. MacMenamin J held that the appellants’ appeal must succeed, and that he would set aside the judgments of the Court of Appeal and the High Court.

Appeal allowed.

Judgment of Mr. Justice John MacMenamin dated the 19th day of June, 2020

Introduction

1 The Refugee Act of 1996 (“the 1996 Act” or “the Act”) was enacted to give effect to the Convention relating to the Status of Refugees done at Geneva on the 28th day of July, 1951 (“the Convention”). The main purposes of the 1996 Act (since repealed and replaced by the International Protection Act, 2015 (“the 2015 Act”)), were to remove uncertainty as to the legal status of persons who sought asylum, to give effect to the Convention in this State, to establish procedures for processing and determining applications for refugee status, and to create a regime of entitlements and benefits for those thus recognised.

2 This process was, in the first instance, to be carried out by the Office of the Refugee Applications Commissioner (“ORAC”; “the Commissioner”) created under s.6 of the 1996 Act. Section 8(1) of the same Act laid down the manner in which, after interview by an immigration officer, applications for a declaration under s.17 that the applicant be recognised as a refugee, were to be made to the respondent (“the Minister”). Subject to a range of conditions outlined in s.9, and on being satisfied that an applicant was seeking asylum, the Minister was empowered to grant leave for such person to remain in the State for that purpose. Breach of those conditions could give rise to detention either by an immigration officer or member of An Garda Síochána (s.9(8)).

3 Once an application was made, s.8(3) of the Act provided it would then be referred to the ORAC and notified to the United Nations High Commissioner for Refugees (“the High Commissioner”). Thereby, the process of investigating the entitlement of the applicant to a declaration under s.17 of the Act was begun. For that purpose, the powers of the Refugee Applications Commissioner, and all necessary ancillary procedures, were outlined in s.8 to s.13 of the 1996 Act and in the First Schedule thereto. By ss.15 and 16, a Refugee Appeal Board was created to deal with appeals from the ORAC. Section 17 of the Act provided, in turn, that an applicant determined to be a “refugee” as defined in s.2 of the Act would be granted a “declaration” by the Minister, the effect of which was that, thenceforth, he or she would be recognised as a refugee “in relation to whom a declaration is in force”. Only persons so recognised were entitled to the enhanced range of benefits defined in ss. 3, 4 and 18 of the Act. It will be understood that in this judgment the references to “the Minister” are to be understood as concerning the successive holders of that office in their corporate capacity, and not to any personal actions of the present holder of that office or his predecessors.

4 The entitlements provided in the Act for those who were recognised under s.17 were, by the standards of the day, expansive, rather than restrictive. To take one illustration, whilst the Convention did not contain a right for refugees to apply for family reunification, s.18 of the 1996 Act did make such provision. The “Final Act of the United Nations Conference of Plenipotentiaries”, which adopted the Convention in 1951, had merely proposed this concept as a “recommendation”.

Section 18 of the 1996 Act

5 Section 18 of the Act lies at the centre of these appeals. For present purposes, it will be sufficient to quote the material parts of the provision. It made reference to two offices: first, the “Commissioner”, again indicating the holder of the statutory office created by s.6 of the Act; and second, the “High Commissioner”. Eliminating an irrelevant statutory exclusion therefore, s.18(1) provided that:

“… refugee in relation to whom a declaration is in force may apply to the Minister for permission to be granted to a member of his or her family to enter and to reside in the State and the Minister shall cause such an application to be referred to the Commissioner and a notification thereof to be given to the High Commissioner …”

Later, s.18(4) identified the range of family members eligible for reunification. The section also empowered the respondent Minister to refuse entry to the State to otherwise potentially eligible family members on grounds of national security or public policy (s.18(5)).

6 As a result of this innovative legislation, it can be said a significant number of refugees who had been forced to flee their native countries due to persecution for Convention reasons, and who had been granted political asylum in Ireland, were reunited with family members who were permitted to come to this State to join them.

The Appeals

7 Two appeals are before the Court. MAM is the appellant in Case 1. K.N. is the first named appellant in Case 2. Both were granted asylum and later received declarations pursuant to s.17(1) of the 1996 Act. As a result, they were eligible to bring family members here. They availed of this opportunity. Both appellants subsequently became citizens of this State. Later, they applied to bring in other close family members to join them. But, by then, the Oireachtas had enacted the 2015 Act. The appellants therefore applied under this new Act. However, the Minister held that, as the appellants had, by that time, become citizens of this State, they were ineligible to apply for family reunification under the 2015 Act. In the circumstances described below, the question of eligibility fell to be determined under the 1996 Act.

8 These appeals raise issues of statutory interpretation, and turn on how provisions of the 1996 Act should be understood. But, acknowledging that the Minister's officers were duty-bound to operate the system in accordance with the legislation, it is nonetheless helpful to an understanding of this case to record in full detail of how the system operated in the case of these two appellants over the years in question.

Case 1: M.A.M.

9 M.A.M. (“Ms. M”), the appellant in Case 1, became a “refugee” within the meaning of the Convention in the year 2007. As a...