N.K.M. v The Minister for Justice
| Jurisdiction | Ireland |
| Judge | Mr Justice Cian Ferriter |
| Judgment Date | 17 May 2023 |
| Neutral Citation | [2023] IEHC 264 |
| Court | High Court |
| Docket Number | 2022/161 JR |
[2023] IEHC 264
2022/161 JR
THE HIGH COURT
JUDICIAL REVIEW
Judgment of Mr Justice Cian Ferriter delivered this 17 th day of May 2023
In these judicial review proceedings, the applicant seeks to quash a decision of the Minister for Justice (“the Minister”) refusing an application by the applicant for family reunification under the Irish Refugee Protection Programme Humanitarian Admission Programme 2 (known as “IHAP 2”) (“the scheme”) in respect of her 16 year old nephew, who presently lives in Kinshasa, Democratic Republic of the Congo (“DRC”). The applicant is an Irish national originally from DRC. Her nephew is the son of her brother, who died in DRC in 2014.
The basis of the application was that her nephew was a “ related minor child without parents, for whom she has parental responsibility”, one of the categories for eligibility under the scheme. As part of her application, the applicant provided evidence that she had adopted her nephew under Congolese law in July 2020. During the course of the application process, the applicant also submitted that her nephew was a “ vulnerable family member with no parent or (legal) guardian in DRC”, a different ground for eligibility under the scheme.
The application was refused on the basis that the applicant had failed to submit evidence of legal guardianship or adoption recognised under Irish law. This is said to be an error of law (on the basis that the question of parental responsibility in the context of minors from countries covered by the scheme could not be lawfully confined to adoptions recognised under Irish law, where none of the scheme countries is a party to the Hague Convention on inter-country adoptions) and to have involved regard to irrelevant considerations (i.e. the consideration of an adoption recognised under Irish law).
The Minister says, in summary, that there is no error of law or regard to irrelevant considerations in the decision. She says that the decision involved fact-specific findings and that the decision should be read in light of the documents generated in the process as a whole which make clear that there were legitimate policy concerns about acceding to the application (including concerns in relation to the nephew's mother's whereabouts and whether the nephew's carer was consenting to the transfer) which rendered the decision one which the Minister was entitled to arrive at.
In order to protect the privacy interests of the applicant's nephew, I will refer to him in this judgment as “the nephew”. Similarly, I will refer to the woman (said to be a close relative) presently looking after the nephew in Kinshasa as “Ms. N”.
The applicant was born in DRC and lived there until 2000, when she arrived in the State. She applied for refugee status but withdrew her application when she was granted permission to remain in the State as the parent of an Irish citizen. She was naturalised as an Irish citizen on 20 March 2013. The applicant works as a care assistant and lives with her husband and children in Dublin.
The applicant's nephew was born in October 2006. He is the son of the applicant's brother, who died in DRC in 2014. In the years prior to his death, the applicant's brother was unaccounted for and she believed him to be dead. The applicant says that the whereabouts of her nephew's mother are unknown, that she has not been seen in many years and that she believes her to be dead.
As her nephew has no parents to care for him, the applicant says that she assumed parental responsibility for him: she has discharged the costs associated with his day-to-day living expenses including maintenance, school fees, and medical fees. Her nephew currently lives in Kinshasa with a relative, Ms. N, whom the applicant says cares for her nephew on the applicant's behalf.
The details of the scheme, including its eligibility criteria, are published on a page on the website of the Minister's department. Under the scheme, Irish citizens, persons with refugee status, subsidiary protection status or programme refugee status could apply (or “propose”) for eligible family members to join them in Ireland. In order to qualify for the scheme, family members were required to be nationals of one of the following countries: the Syrian Arab Republic, Afghanistan, South Sudan, Somalia, Sudan, the DRC, the Central African Republic, Myanmar, Eritrea and Burundi. This list was based on the UNHCR Annual Global Trends Report, with the countries included in IHAP 2 being the “top ten major source countries of refugees.” The call for proposals under IHAP 2 was open from 20 December 2018 until 8 February 2019. The relevant webpage makes clear that permissions under the scheme are granted by the Minister on a discretionary basis.
The scheme provided for seven categories of eligible family member beneficiaries as specified in the terms of the scheme as promulgated on the website of the Minister's department. These categories included the following categories which are relevant to these proceedings:
— “A related Minor Child without parents for whom the proposer has parental responsibility * (The related Minor Child must be unmarried and without dependents) e.g. Orphaned Niece/Nephew/Grandchild, Sibling)”
The asterisked note to this category states “where a proposer does not have sole parental responsibility, the consent of the person that shares responsibility will be required”
— “A Vulnerable Close Family Member who does not have a spouse/partner or other close relative to support them.”
(highlighting in original)
The other categories include “ The Proposer's Minor Child (where the Minor Child is not eligible for reunification with a sponsor under the terms of the International Protection Act 2015. The Minor Child must be unmarried and without dependents).”
The terms of the scheme stipulated, under the heading “documents required” in the section headed “ How do I make a proposal for the IHAP?”, that “evidence of legal guardianship” must be provided if the proposed beneficiary is “a related minor child”. This section of the scheme's terms also stated “ if you are not able to supply any of these documents or supporting evidence with the form, please state why you are not able to do so on the proposal form. This checklist is not exhaustive. It is the responsibility of the proposer to ensure that they provide all of the supporting documentation required to support the proposal.”
Applicants under the scheme were required to fill out a standard application form. The application form framed the two categories relevant to these proceedings as follows:
“A related Minor Child without parents for whom the proposer has parental responsibility * (The related Minor Child must be unmarried and without dependents) e.g. Orphaned Niece/Nephew/Grandchild, Sibling) [Important: Evidence of Legal Guardianship will be required. If this is not possible, you must give a detailed and compelling explanation for the inability to provide this evidence].
A Vulnerable Close Family Member who does not have a spouse/partner or other close relative to support them” .
(highlighting and emphasis in original)
On 8 January 2019, the applicant's solicitors lodged an application under the scheme seeking permission for the applicant's nephew to join her in Ireland. The basis of the applicant's application was that her nephew was “ a related minor child without parents, for whom she has parental responsibility”.
When completing the application form, the applicant described her “ relationship to proposer in Ireland” as “ nephew and ward. I have parental responsibility for him.”
The applicant enclosed a statement from Ms. N in support of the application. In that statement Ms. N described herself as a housewife residing at an address in Kinshasa where the nephew “is living after his father's death”. She certified “as a close relative” the nephew's date of birth, his father and his father's date of birth. She stated that “ since the death of [the nephew's father] in Kinshasa on 10 March 2014, his mother has not been seen for a long time and that [the nephew] and all his needs regarding maintenance, school fees, medical fees have been taken care of by [the applicant] who is residing in the Republic of Ireland at the moment.”
It will be noted that while the applicant described her nephew as an orphan, Ms. N in her statement stated that his mother had not been seen for a long time. The applicant through a letter from her solicitors of 17 January 2020 stated that her nephew was orphaned at a young age although it was also later said on her behalf (in a letter of 2 September 2020 from her solicitors to the Minister's department) that her nephew's mother “has been missing for many years” but that she did not have official documentation to prove this. In her affidavit verifying her statement of grounds in these proceedings, the applicant averred that her nephew's mother “abandoned him when he was a young child and has not had any part in his upbringing”.
By letter of 8 July 2019, the Minister refused the application on the basis that the application was incomplete. The Minister said that the applicant had failed to provide evidence of her familial relationship to her nephew as neither the applicant nor her husband had referenced her nephew's parents as siblings in their asylum applications. The letter referenced UNHCR guidelines on the assessment of a proposal involving a minor child which stated that the following would be taken into consideration: “[whether] the best interests of the minor child will be served by travelling to reside in the State”. The letter referenced...
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