M.A.M. v The Minister for Justice & Equality; K.N. v The Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 29 March 2019
• Neutral Citation: [2019] IECA 116
• Date: 29 March 2019
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal No.: 2018/141

BETWEEN/

M. A. M. (SOMALIA)

APPLICANT/APPELLANT

-AND-

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

BETWEEN/

K. N. (UZBEKISTAN), 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/APPELLANTS

-AND-

THE MINISTER FOR JUSTICE

RESPONDENT

-AND-

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

AMICUS CURIAE

[2019] IECA 116

Baker J.

McGovern J.

Baker J.

Costello J.

Appeal No.: 2018/141

Appeal No.: 2018/138

THE COURT OF APPEAL

Family reunification – Naturalised citizens – Refugee status – Appellants seeking family reunification – Whether a declaration of refugee status automatically, by operation of law, ceases to have effect once a person becomes a naturalised citizen

Facts: The first appellants in each case were naturalised Irish citizens whose refugee status had been declared under the Refugee Act 1996. They both made unsuccessful applications for family reunification to the relevant statutory bodies. The High Court (Humphreys J) upheld the refusal in judicial review proceedings. The appellants said that their applications for family reunification were to be dealt with under the provisions of the 1996 Act as if they were refugees holding a declaration of that status, and that their status as refugees continued notwithstanding that they had become naturalised Irish citizens, and because no positive act was taken by the respondent, the Minister for Justice and Equality, to revoke the declaration of refugee status which they argued was required by the 1996 Act, in particular because of the extensive rights to which a holder of a declaration is entitled. The central question the Court of Appeal was required to answer in both appeals was whether Humphreys J was correct that a refugee does not continue to be a refugee once he or she has acquired citizenship of the State, and that a declaration of refugee status automatically, by operation of law, ceases to have effect once a person becomes a naturalised citizen.

Held by Baker J that the lack of clarity in the correspondence from the Minister was such that the appellant in the first appeal made a rational choice to include the ground of retrospectivity in her application for judicial review, and she was entitled to succeed on those grounds. Baker J held that the order of the High Court must be set aside to that extent (ground 13 of the first appeal). Baker J held that, from the plain language of the 1996 Act, it was apparent that two requirements are needed for an applicant to succeed in his or her application for family reunification under s. 18 of the 1996 Act, namely be a refugee within the meaning of s. 2 of the 1996 Act, and have a declaration of refugee status. Baker J held that neither of the appellants could be considered to be a refugee within the meaning of the 1996 Act, and could not be said to have a refugee declaration still in force. Baker J held that the declarations they previously held had been revoked by operation of law once they acquired Irish citizenship.

Baker J held that, save with regard to ground 13 of the first appeal, the appeals were to be dismissed.

Appeals dismissed.

JUDGMENT of Ms. Justice Baker delivered on the 29th day of March 2019

1 Both appeals concern the same question, whether persons who came to Ireland as refugees and obtained a declaration of refugee status and who subsequently became naturalised Irish citizens are entitled to the benefit of statutory family reunification rights contained in s. 18 of the Refugee Act 1996, as amended (‘the 1996 Act’).

2 The answer is of importance because a person who has the benefit of the reunification rights contained in s. 18 of the 1996 Act does not have to meet the requirements concerning family reunification under the Immigration Act 2004 or the Non-EEA National Family Reunification Policy.

3 The Minister for Justice and Equality (‘the Minister’) originally took the view that generally, an Irish citizen was not entitled to make an application under the provisions for family reunification in s. 18 of the 1996 Act. However, in August 2010, on foot of legal advice that the Minister is now saying was incorrect, the Minister began processing applications for family reunification from citizen applicants. That approach lasted up until October 2017, when the Minister reverted back to the initial interpretation.

4 It is that change of approach that has led to the refusal of the Minister to permit the appellants to seek family reunification under s. 18 of the 1996 Act.

5 The first appellants in each case are naturalised Irish citizens whose refugee status had been declared under the 1996 Act. They both made unsuccessful applications for family reunification to the relevant statutory bodies. Humphreys J. upheld the refusal in judicial review proceedings, M. A. M. (Somalia) v. The Minister for Justice and Equality (No. 1) [2018] IEHC 113.

6 The appellants say that their applications for family reunification are to be dealt with under the provisions of the 1996 Act as if they were refugees holding a declaration of that status, and that their status as refugees continues notwithstanding that they have become naturalised Irish citizens, and because no positive act was taken by the Minister to revoke the declaration of refugee status which they argue is required by the 1996 Act, in particular because of the extensive rights to which a holder of a declaration is entitled.

7 The central question this Court is required to answer in both appeals is whether Humphreys J. was correct that a refugee does not continue to be a refugee once he or she has acquired citizenship of the State, and that a declaration of refugee status automatically, by operation of law, ceases to have effect once a person becomes a naturalised citizen.

8 In accordance with s. 10(2)(e) of the Irish Human Rights and Equality Commission Act 2014, by order of Irvine J. of 28 June 2018, the Irish Human Rights and Equality Commission (‘IHREC’) was granted liberty to appear in these appeals as amicus curiae.

The first appeal

9 The first appeal was selected as ‘lead case.’

10 Ms M. A. M. was born in Somalia in 1980 and came to Ireland as an asylum seeker in 2007. She was granted a declaration of refugee status on 29 August 2008 pursuant to s. 17(1)(a) of the 1996 Act and became an Irish citizen on 21 October 2013. In June 2009, and before the process of naturalisation had concluded, she applied for family reunification with some family members. Her children, her mother, and her wards were granted permission to come to Ireland in January 2012. As she had lost contact with her husband, who was missing and unaccounted for, she did not apply in relation to him at that point in time.

11 Subsequent to becoming an Irish citizen in 2013, having re-established contact with her husband in December 2016, she sought family reunification in respect of him on 7 April 2017, and made an application for family reunification under s. 56 of the International Protection Act 2015 (‘the 2015 Act’).

12 This application was refused by a decision of the Minister given on 16 May 2017, and after leave was granted to bring an application for judicial review, the Minister withdrew his decision and made a further decision of 20 October 2017 refusing the application on the grounds that, as she had become an Irish citizen in 2013, she was no longer eligible to apply for family reunification.

13 That decision was the subject of the present application for judicial review and was upheld by Humphreys J. in his judgement.

The second appeal

14 Ms K. N., the first appellant in the second appeal, was born in 1972 in Uzbekistan. She came to live in Ireland in February 2008 and was granted a declaration of refugee status on 25 February 2009 pursuant to s. 17(1)(a) of the 1996 Act. She was granted naturalisation and on 13 December 2012, became an Irish citizen. She applied for family reunification under s. 18 of the 1996 Act on 19 July 2016, some years after she had become an Irish citizen, in respect of her eldest daughter, her son-in-law, and her grandchildren, two young girls. The application in respect of her son-in law-was subsequently withdrawn, as Ms N. accepted that he was not eligible for consideration under s. 18(4) of the 1996 Act. The second appellant is the daughter of Ms N., and the third and fourth appellants are her grandchildren, the children of that daughter, and her husband.

15 Ms N. had previously been granted family reunification rights in respect of two of her other children in August 2012, and at that time her daughter, the second appellant, did not wish to leave Uzbekistan as she wished to marry.

16 On 29 November 2017, the application for family reunification was rejected, the sole reason being that, as Ms N. had become an Irish citizen in 2012, she was not entitled to apply for family reunification under s. 18(4) of the 1996 Act.

The decision in the High Court

17 The proceedings were heard before Humphreys J. who had previously made case management orders that the two cases be heard together along with another which is not the subject of this appeal. He reserved judgment and delivered his written judgment on 26 February 2018, by which he rejected the application for judicial review of the Minister's decisions.

18 Humphreys J. answered the central question early in his judgment by reference to the ordinary meaning of ‘refugee’ in the 1996 Act, at para. 24:

‘A refugee is a person who owing to a well-founded fear of being persecuted for a convention reason ‘ is outside the country of his or her nationality’ and is unable or unwilling to avail of protection of that country, and related provisions were made for stateless persons as well as provision for certain exceptions. On that definition, a person ceases to be a refugee as soon as he or she becomes an Irish citizen’.

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