A. M. S. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Colm Mac Eochaidh
• Judgment Date: 13 February 2014
• Neutral Citation: [2014] IEHC 57
• Court: High Court
• Date: 13 February 2014

[2014] IEHC 57

THE HIGH COURT

[No. 858 J.R./2012]

S (AM) v Min for Justice

No Redaction Needed

JUDICIAL REVIEW

BETWEEN

A. M. S.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

REFUGEE ACT 1996 S18

REFUGEE ACT 1996 S18(2)

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AGBONLAHOR v MIN FOR JUSTICE & ORS 2007 4 IR 309 2007/3/447 2007 IEHC 166

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REFUGEE ACT 1996 S18(4)

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MALLAK v MIN FOR JUSTICE 2013 1 ILRM 73 2012/24/6926 2012 IESC 59

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DIRECT UNITED STATES CABLE CO LTD v ANGLO-AMERICAN TELEGRAPH CO LTD 1877 2 APP CAS 394

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EEC DIR 2003/86

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NICOLAOU, STATE v BORD UCHTALA 1965 IR 567

SHUM v IRELAND & ORS 1986 ILRM 593 1986/4/1484

OSHEKU v IRELAND & ORS 1986 IR 733 1987 ILRM 330 1986/7/1474

F (ISO) & ORS v MIN FOR JUSTICE UNREP COOKE 17.12.2010 2010/19/4624 2010 IEHC 457

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W (V) [UGANDA] v SECRETARY OF STATE FOR THE HOME DEPT 2009 IMM AR 436 2009 INLR 295 2009 AER (D) 92 (JAN) 2009 EWCA CIV 5

R (RAZGAR) v SECRETARY OF STATE FOR THE HOME DEPT (NO 2) 2004 2 AC 368 2004 3 WLR 58 2004 3 AER 821 2004 HRLR 32 2004 UKHL 27

Judicial review - Refugees - Family reunification - Dependency - Reliance on social welfare - Section 18 of the Refugee Act 1996 - Statutory discretion - Statutory interpretation - Intention of the Oireachtas - Failure to consider constitutional rights - Inadequate proportionality assessment

These proceedings concerned whether the respondent, the Minister for Justice and Equality, was entitled to refuse dependent family members permission to enter and to remain in the State due to the likelihood that they would rely on social welfare. They also concerned the interpretation of section 18 of the Refugee Act 1996 (the 1996 Act) which provided for the family reunification of declared refugees where dependency was established.

The applicant, A.M.S., was a citizen of Somalia who was declared a refugee in Ireland on the 8 ^th of January 2009. In May 2009, he applied via letter for family reunification in respect of his mother, wife, daughter, two sisters and two brothers. He completed a questionnaire prepared by the Office of the Refugee Applications Commissioner (ORAC) which asked how his family members depended on him. He responded by stating that his family lived with him his entire life and that they were in a dangerous situation in a refugee camp outside Mogadishu. The ORAC, in refusing the application, compiled a report which stated that dependency was not proven by the applicant, focusing ‘exclusively’ on the financial situation of the applicant in reaching their determination—specifically, the likelihood of reliance on social welfare. Six months after the applicant sought permission to bring his family to Ireland, his 7 year old daughter and 15 year old brother were killed in an explosion. The Minister”s first decision was quashed by Cross J. On the 5 ^th of April 2012, the applicant”s solicitors renewed their application. This application was also refused.

Section 18 (4) (a) provided that the granting of permission to a dependent family member to enter and reside in the State was discretionary. The applicant contended that the respondent Minister exceeded his discretion as the proper construction of the provision precluded the likelihood of requiring social welfare as a ground to refuse an application.

Held by Mac Eochaidh J., the nature of the discretion conferred by section 18 (4) was to be understood with reference to the purpose of the provision. It was determined that the Oireachtas, by enacting the section, acknowledged the benefit of facilitating family reunification where dependency was established and that it was difficult to imagine that this was intended to be available only for ‘those lucky few refugees’ who had sufficient resources to support themselves and their dependents in Ireland. It was found to be nonsensical to suggest that the Minister had the power to refuse family reunification because the dependents would need social welfare. It was concluded that the use of discretionary power to exclude those dependents requiring state assistance was an arbitrary abuse of power that failed to accord with the principles of constitutional justice. The Court then determined that there was no lawful proportionality exercise in the Minister”s decision. Rather than balancing the rights of the applicant and the State, the Minister only gave consideration to financial factors with no proper consideration of the interests or circumstances of the applicant. Moreover, the consideration of the application under Article 8 of the European Convention on Human Rights was found to have been deficient.

An order of certiorari was granted in respect of the decision at issue.

1 JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 13th day of February 2014

2 1. Section 18 of the Refugee Act 1996, makes provision for declared refugees to be reunited with their families in Ireland. For some family members (spouse and children, for example) the process is practically automatic. For others (siblings, parents, etc.)dependency has to be established. This case is concerned with the interpretation of s.18 and, in particular, with the question as to whether the Minister was entitled to refuse dependent family members permission to enter and remain in the State because of the likelihood that they would rely on social welfare. (A complaint that the proportionality assessment was inadequate is also considered.)

Background

3 2. The applicant is a citizen of Somalia, born on 1 ^st February, 1985. He was declared to be a refugee in Ireland on 8 ^th January, 2009. By letter of 11 ^th May 2009, he applied for family reunification in respect of his mother, wife, daughter, two sisters and two brothers. As explained below, the decision in suit is only concerned with the applicant's mother, born in 1950 and his living siblings, born in 1992, 1993 and 1997. He did not have the assistance of a lawyer for this application.

4 3. The Office of the Refugee Applications Commissioner ('ORAC') has an investigative function on behalf of the Minister when such applications are made. The applicant completed a questionnaire prepared by ORAC. The form posed questions about the applicant's immediate family (child and spouse) and separate questions in respect of other family members. Question 5 asked:

"If any of your dependents, in this application, is dependent on you, on grounds other than medical, please explain in detail how/why each of them is dependent on you?"

5 The answer given to this question was as follows:

"My family and I lived together all our life even when I was married and now my family are in a very dangerous miserable situation in refugee camp outside Mogadishu. The fighting in Mogadishu is endless and still continuing and my family are in a risk at any time."

6 Question 7 asks:

"Since you left, with whom have they lived, and what was the person(s)' relationship to each dependent?"

7 Answer:

"Since I left, my family fled into different areas where they could get shelter and most of them were getting help from local NGO."

8 Question 11 asked:

"If any of your dependents, in this application, are under 18 years please state the full names and the full addresses of the natural parents."

9 Answer:

"All my siblings are under 18 and still under the care of my mother living together in a refugee camp outside Mogadishu."

10 Question 12 asked:

"If you are supporting dependent members included in this application, please provide evidence of such e.g. money transfer receipts and state and provide evidence of how you would support and accommodate them if they were to be granted family reunification."

11 Answer:

"N/A"

12 Question 13 asked:

"Are any of your dependent family members, included in this application, employed?"

13 Answer:

"No"

14 4. A further section of the questionnaire asked questions about the sponsor refugee's personal circumstances including whether he is employed or where he lives, how much his habitation costs, if he receives a rent supplement.

15 Question Bll asks:

"How do you propose to support and accommodate the dependent members in your application should they be granted family reunification? Please provide details."

16 Answer:

"I am looking for a job and I will inform you as soon as I am...