M.A.M. (Somalia) v The Minister for Justice and Equality; K.N. (Uzbekistan) and Others -v- The Minister for Justice and Equality; I.K. (Georgia) -v- The Minister for Justice and Equality and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 26 February 2018
• Neutral Citation: [2018] IEHC 113
• Date: 26 February 2018
• Court: High Court
• Docket Number: [2017 No. 908 J.R.] [2017 No. 988 J.R.] [2017 No. 730 J.R.]

[2018] IEHC 113

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2017 No. 908 J.R.]

[2017 No. 988 J.R.]

[2017 No. 730 J.R.]

BETWEEN

M.A.M. (SOMALIA)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

K.N. (UsBEKiSTAN), E.M, F.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.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

I.K. (GEORGIA)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL,

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

RESPONDENTSNo.1

Asylum, Immigration & Nationality – The Refugee Act 1996 – Arts. 40 and 41 of the Constitution – Family reunification – Refugee status – Naturalised citizen – Art. 14 of Qualification Directive

Facts: Three cases had been clubbed together for resolving a common issue in those cases as to whether a refugee continued to be a refugee after acquiring the citizenship of the State. The applicants in those cases filed applications for family reunification that was refused by the respondent on the ground that an Irish citizen could not apply for family reunification under s. 18 of the Refugee Act 1996.

Mr. Justice Richard Humphreys held that a refugee in the State automatically ceased to be a refugee by operation of law on acquisition of citizenship of the State. The Court also held that there was no need for formal revocation of a declaration of refugee status. The Court opined that there was no unlawful discrimination contrary to the Constitution, the EU law, the ECHR or the international law as the refugees who were granted citizenship were able to acquire new benefits and new legal status. The Court, however, held that if the refugees were given benefits under s. 18 of the 1996 Act, it could lead to discrimination against the other Irish citizens who were not refugees.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 26th day of February, 2018

1 Does a refugee continue to be a refugee after acquiring citizenship of the State? That fairly simple question, the main issue in these three cases, which have been heard together, has a fairly simple and indeed monosyllabic answer which I will come to later in this judgment; but to get to that answer, one has to open a series of Russian dolls of increasing complexity that have been put together very skilfully on behalf of the applicants.

Facts in M.A.M.

2 The applicant was born in Somalia in 1980 and came to Ireland as an asylum seeker in 2007. She was granted asylum on 29th August, 2008 and was naturalised as an Irish citizen on 21st October, 2013. In June, 2009 she applied for family reunification with her children, having lost contact with her husband. That application was granted and the applicant's children and wards and her mother were granted permission to come to Ireland.

3 In December, 2016 the applicant re-established contact with her husband and then applied for family reunification in respect of him on 7th April, 2017. That application was refused by a decision dated 16th May, 2017 on the basis that the applicant had not applied for family reunification within twelve months of the grant of refugee status, as allegedly required by s. 56(8) of the International Protection Act 2015. Shortly thereafter, the Minister reviewed that decision and withdrew it on 14th September, 2017 (on the basis that s. 56(8) was not retrospective as originally alleged) but then made a further decision on 24th October, 2017 to the effect that the application for family reunification was being refused on the basis that as the applicant had become an Irish citizen in 2013 she was not eligible to apply for family reunification under s. 18 of the Refugee Act 1996.

4 In this case I have heard helpful submissions from Mr. Colm O'Dwyer S.C. (with Ms. Patricia Brazil B.L.) for the applicant and from Ms. Sara Moorhead S.C. (with Ms. Emily Farrell B.L.) for the respondent.

Facts in K.N.

5 The first named applicant is a naturalised Irish citizen born in 1972 in Uzbekistan. She entered the State in February, 2008 and was granted asylum on 25th February, 2009. In 2009 she made an application for family reunification on behalf of her mother and three daughters, including the second named applicant. The application in relation to the second named applicant was withdrawn in 2011. A feature that this case has in common with other cases is that prior to August, 2010, the Minister took the view that an Irish citizen was not subject to the provisions on family reunification under s. 18 of the Refugee Act 1996 and was not entitled to make an application under those provisions. However in August, 2010 on foot of legal advice that the Minister is now saying is incorrect, the Minister began processing applications for family reunification from citizen applicants.

6 In January, 2012 the first named applicant was granted family reunification in respect of two of her children. She was naturalised on 13th December, 2012. On or about 19th July, 2016 she applied for family reunification under s. 18 of the 1996 Act and submitted further formal information on 26th July, 2016. That application was in respect of the second, third and fourth named applicants and the first named applicant's son-in-law.

7 Another feature that the case has in common with the other cases is the relevance of the commencement on 31st December, 2016 of the International Protection Act 2015. That commencement was notified to the first named applicant by letter issued on behalf of the Minister in December, 2016. Shortly before the commencement of the Act, the Minister reversed the approach being taken to family reunification by naturalised persons and as of October, 2017 the Minister reverted to the previous interpretation of s. 18 of the 1996 Act to the effect that citizens were not eligible to avail of that section. On 28th November, 2017 the Refugee Applications Commissioner informed the first named applicant that as she was a citizen they had ceased to process the application at the request of the Minister and by letter dated 29th November, 2017 the Minister notified the first named applicant of the decision to refuse the application for family reunification in respect of the second, third and fourth named applicants on the basis that, as a citizen, s. 18 of the 1996 Act did not apply.

8 In this case I have heard helpful submissions from Ms. Rosario Boyle S.C. (with Mr. Anthony Lowry B.L.) for the applicants and from Ms. Sara Moorhead S.C. (with Ms. Kilda Mooney B.L.) for the respondents.

Facts in I.K.

9 On 15th January, 1995 the applicant underwent a ceremony of marriage in Georgia with Mr. I.K. On 23rd September, 2008 the applicant says she arrived in the State. She applied for asylum on 21st April, 2009 following a fire in a house she was sharing with her husband. In the course of that application she stated that her husband was living in the State and that their three children were still in Georgia. On 14th October, 2009 she received a recommendation that she not be declared a refugee. That recommendation was affirmed on appeal by the tribunal on 8th February, 2010. A proposal to make a deportation order was issued on 23rd March, 2010. On 14th April, 2010, in response, she applied for leave to remain and subsidiary protection.

10 The subsidiary protection application was refused on 19th September, 2012 and a deportation order was made in respect of the applicant on 21st March, 2013. On 20th May, 2013 the applicant made the first of three applications for revocation of the deportation order pursuant to s. 3(11) of the Immigration Act 1999. That first application was made in effect on her behalf and on behalf of her husband, Mr. K. On 14th October, 2013 she failed to present to GNIB and then continued to evade for a period of almost two years until 21st July, 2015. On 4th November, 2013 the deportation order was affirmed. On 27th April, 2015 the applicant went through a ceremony of marriage with Mr. B.D., a recognised refugee from Georgia and a naturalised Irish citizen. On 17th June, 2015, the applicant made a second s. 3(11) application based on her marriage to Mr. B.D. in which she claimed for the first time to the Minister that she was never legally married to Mr. K. On 4th May, 2017 the second s. 3(11) application was refused. On 29th May, 2017 she made a third s. 3(11) application which she says was to correct the errors identified in the refusal of the second application. That third application was refused on 12th September, 2017, and is now challenged in these proceedings. On 20th September, 2017 she made an application for family reunification as the spouse of a recognised refugee, which application is apparently pending.

11 In this case I have heard helpful submissions from Mr. Aengus Ó Corráin B.L. and Mr. Brian Leahy B.L., who also addressed the court, for the applicant and from Ms. Sara Moorhead S.C. (with Ms. Sinead McGrath B.L.) for the respondent.

Categories of application for family reunification.

12 Any analysis of this area needs to distinguish between three categories of application for family reunification in respect of a recognised refugee depending on when the application was made, as follows:

(i). The first category is applications prior to the 2015 Act. In accordance with s. 70(14) of the 2015 Act, in the case of K.N. the application was correctly dealt with under s. 18 of the 1996 Act because it was made prior to the repeal of the 1996 Act. Thus in such a case neither ss. 47 or 56 of the 2015 Act applies.

(ii). Secondly, applications made post the 2015 Act but where the citizen is naturalised pre the 2015 Act. Applications after the 31st December, 2016 are being dealt with under the 2015 Act. In the case of I.K. and M.A.M. the application is made under s. 56 of the 2015 Act. The time limit under s. 56(8) of twelve months from declaration of...