R.C. (Afghanistan) v The Minister for Justice and Equality

JudgeMr. Justice Richard Humphreys
Judgment Date01 February 2019
Neutral Citation[2019] IEHC 65
CourtHigh Court
Docket Number[2017 No. 902 J.R.]
Date01 February 2019



[2019] IEHC 65

Humphreys J.

[2017 No. 902 J.R.]



Asylum & immigration – Subsidiary protection – Afghani national – Family reunification – Judicial review – International Protection Act 2015, s 59

Facts: The applicant, a national of Afghanistan, had been granted subsidiary protection following the rejection of his fraudulent asylum claim. He subsequently married and sought to reunify his family, which was refused under s 59 of the International Protection Act 2015. He now sought judicial review of that refusal, leave having been granted at an earlier hearing.

Held by the High Court that the proceedings would be dismissed. The respondent was entitled to verify the validity of an alleged marriage. The distinction between those married before the grant of protection and after was proportionate, and the applicant’s arguments as to the Constitution and ECHR were without merit.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 1st day of February, 2019

The applicant left Afghanistan in December, 2006 or January, 2007 and went to the U.K. He claimed asylum there, an application that was rejected. His father was then deported from the U.K. He came to Ireland in 2011 and applied for international protection under the false name of Matiullah Enayat. Presumably the idea was that a false name was necessary in order to frustrate the procedure for his potential return to the UK under the Dublin system as a failed asylum seeker there. It was not detected that he had abused the system but in any event his asylum application was refused. He then sought subsidiary protection and he was notified of an intention to grant this status on 29th May, 2015. Despite ministerial inquiries and his confession of his fraud on the protection system, he was granted subsidiary protection on 18th January, 2016 for a period of three years, apparently by reason of art. 15(c) of the qualification directive 2004/83/EC. He quickly set about putting in place chain migration, as it is called with refreshing transatlantic candour in the United States, or family reunification as it is more euphemistically called in Europe. On 4th October, 2016 he applied for family reunification for two brothers. On 31st December, 2016, the International Protection Act 2015 commenced. On 11th June, 2017 he married a Ms. S.H. by proxy. There is no evidence in the proceedings that they ever met each other, knew each other or had a meaningful relationship prior to that, although Mr. James O'Reilly S.C. for the applicant tells me his instructions are that they did know each other and met briefly in Pakistan, after the applicant was granted protection here. However such matters don't seem to have been communicated to the Minister so far.


On 15th August, 2017 the applicant applied for family reunification in respect of his wife. On 25th August, 2017 the Minister stated that that application could not be accepted under s. 59 (9)(a) of the 2015 Act as the marriage post-dated the protection application. On 20th November, 2017, leave was granted in the present proceedings, seeking certiorari of the decision of 25th August, 2017 refusing to accept the family reunification application, a declaration that s. 56(9)(a) was in relevant part unconstitutional or incompatible with the ECHR, as applied by the European Convention on Human Rights Act 2003, and damages.


On 31st July, 2018, I allowed an amendment to the statement of grounds and then allowed a further amendment on 5th November, 2018 to allow the applicant to identify a comparator for the purposes of a discrimination claim. The comparator was specified on the basis that the applicant was discriminated against vis-à-vis a person granted international protection who married before seeking international protection. Notice of the proceedings has been served on the Irish Human Rights and Equality Commission under O. 60A of the Rules of the Superior Courts, but that body has not appeared. On 18th January, 2019 the applicant's three year permission expired and I am told that it has been renewed until 18th January, 2022.


I have received helpful submissions from Mr. O'Reilly and Mr. David Leonard B.L., who also addressed the court, for the applicant, and from Ms. Denise Brett S.C. (with Ms. Emily Farrell B.L.) for the respondents.

Objection to affidavit of Nick Henderson

The applicant filed an affidavit of Nick Henderson, chief executive officer of the Irish Refugee Council. Objection was taken on behalf of the respondents to that affidavit. It largely contains advisory opinions and views and is more a discussion than evidence as such. I accept the affidavit for what it's worth but it is not really something of evidential weight and is more an argument as to the matters under discussion in the case.

The claim for an order of certiorari

No grounds are pleaded or have been advanced as to why certiorari should be granted independently of the constitutional or ECHR declarations. Thus, the applicant either succeeds or fails on those claims, and that determines whether an order of certiorari would follow.

Alternative remedy and prematurity

The issue of an alternative remedy, or as it could otherwise be conceptualised, prematurity, is pleaded at para. 13 of the statement of opposition. The respondents contend that the applicant could have applied under s. 4 of the Immigration Act 2004, the non-EEA Family Reunification Policy or another departmental policy known as IHAP: see affidavit of Declan Crowe at para. 4.


The applicant contends that such schemes do not provide an alternative remedy because one cannot have a scheme repealing or overruling legislation, relying on N.H.V. v. Minister for Justice and Equality [2017] IESC 35 [2018] 1 I.R. 246 at para 10. However, the context in N.H.V. was a prohibitory provision. The executive is not authorised to allow by fiat what is positively banned by statute. That principle does not apply if a statute permits situation X - that does not rule out X plus 1 being permitted administratively. It is argued by the applicant that the non-EEA family reunification policy has financial conditions but these can be waived: see para. 1.12. It is submitted that if family reunification is achieved under s. 56 of the 2015 Act, statutory rights follow, but that is not so if such reunification is achieved under the scheme. That may well be true but that does not deal with the point at issue here. If the applicant succeeds in achieving family reunification under the scheme, he could then seek for his spouse rights equivalent to those under s. 56. If the State refuses to afford such rights that may be a separate case. The issue here is one of principle about whether one can achieve family reunification at all and in that regard the applicant has not exhausted his options. That is a point I made in North East Pylon Pressure Campaign v. An Bord Pleanála [2016] IEHC 300 [2016] 5 JIC 3008 (Unreported, High Court, 12th May, 2016) at paras. 175 - 177, in the context of the principle that exhaustion of remedies is of particular importance where an applicant seeks to challenge the validity or ECHR-compatibility of a statute. Such a context invokes the principle that the court should ‘ reach constitutional issues lastper Denham J., as she then was, in Gilligan v. Special Criminal Court [2005] IESC 86 [2006] 2 I.R. 389 at p. 407: see also O'B. v. S. [1984] I.R. 316 per Walsh J. at 328. This approach has a considerable history in US constitutional law: see Ashwander v. Tennessee Valley Authority 297 U.S. 288 (1936) and as more recently put by Easterbrook J. in Alliance for Water Efficiency v. Fryer (US Court of Appeals, 7th Circuit, No. 15–1206, 22nd December, 2015) ‘ courts should not decide constitutional issues unnecessarily’ (p. 7). Clarke J., as he then was, dealt with the issue of alternative remedies in E.M.I. Records v. Data Protection Commissioner [2013] IESC 34 [2013] 2 I.R. 669 at paras. 41 and 42, in particular noting that ‘ the default position is that a party should pursue a statutory appeal rather than initiate judicial review proceedings’ (para. 41) but ‘ there will be cases, exceptional to the general rule, where the justice of the case will not be met by confining a person to the statutory appeal and excluding judicial review’ (para. 42). The types of exceptions identified by Clarke J. could be described as falling under four headings:

(i). Where the alternative remedy is inadequate, a point also discussed in J.N.E. v. Minister for Justice and Equality [2017] IEHC 96 [2017] 2 JIC 2004 (Unreported, High Court, 20th February, 2017) at para. 10.

(ii). Where the body to whom the alternative remedy lies would not have jurisdiction to deal with all of the issues.

(iii). Where the applicant was deprived of the reality of a proper consideration of a first instance decision. That of course does not have the implication that any procedural error at first instance means that an applicant can litigate; because that would deprive the doctrine of alternative remedies of all content.

(iv). Other exceptional circumstances, which is not a closed category, as Clarke J. recognised.


Here Mr. O'Reilly's main argument was under the first of these headings, namely the inadequacy of the proposed alternative remedy. However, the applicant has not established that the alternative remedy would be inadequate. The Minister has a broad discretion to grant permissions to the applicant's family members if he thinks it is appropriate, and there must be a presumption that any such decision would be lawful: see North East Pylon at para. 215, citing Clune v. D.P.P. [1981] I.L.R.M. 17, Comhaltas Ceoltóirí Éireann v. Dun Laoghaire Corporation (Unreported, High Court, Finlay P., 14th...

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