S.H. v Minister for Justice ; A.J. v Minister for Justice
| Jurisdiction | Ireland |
| Judge | Mr Justice Cian Ferriter |
| Judgment Date | 27 June 2022 |
| Neutral Citation | [2022] IEHC 392 |
| Court | High Court |
| Docket Number | Record No: 2021/926 JR |
[2022] IEHC 392
Record No: 2021/926 JR
Record No. 2021/591 JR
THE HIGH COURT
JUDICIAL REVIEW
Family reunification – Article 22 of Directive 2004/83/EC – International Protection Act 2015 s. 56 – Applicants seeking family reunification – Whether the requirement in s. 56 of the International Protection Act 2015 that a child of a refugee must be under the age of 18 at the date of the family reunification application in order to qualify for family reunification is contrary to EU law, the Constitution and the ECHR
Facts: Both applicants contended that the requirement in s. 56 of the International Protection Act 2015 that a child of a refugee must be under the age of 18 at the date of the family reunification application in order to qualify for family reunification is contrary to EU law, the Constitution and the ECHR in circumstances where they had children who were under 18 at the date the applicants applied for international protection (and, in the case of AJ, at the date of him being granted international protection status) but where through no fault of theirs, those children had “aged out” i.e. become over 18 before the date on which applications for family reunifications could be, or were, made. Both cases also raised potentially significant issues as to the proper scope and application of a non-statutory scheme operated by the first respondent, the Minister for Justice, in respect of family reunification of non-EEA nationals. There was a separate issue in AJ’s case concerning the alleged non-transposition of article 22 of Directive 2004/83/EC (the Qualification Directive), which is a provision concerning the information to be provided to beneficiaries of international protection status on their acquisition of such status.
Held by the High Court (Ferriter J) that the provisions of article 22 are directly effective; they are clear, precise and unconditional and they are directed to the precise category of person to whom AJ belongs i.e. persons recognised as being in need of international protection. Ferriter J held that AJ did not receive any information in a language likely to be understood by him after his international protection status had been granted; in particular, he did not receive any information in Somali as to his rights to family reunification pursuant to s. 56. Ferriter J held that, accordingly, the respondents acted in breach of AJ’s rights under article 22. Applying Glegola v Minister for Social Protection [2019] 1 IR 539, Ferriter J was satisfied that article 22 is intended to confer rights on individuals and did confer a right on AJ. In Ferriter J’s view, in the circumstances, the breach of article 22 was sufficiently serious to satisfy the second requirement for making out an entitlement to Francovich damages. Ferriter J held that on the unchallenged evidence before the Court there was a clear causal link between the breach of the State’s obligation to transpose and put into effect the rights to information in article 22 and the damage caused to AJ by his resulting failure to put in an application for family reunification for MJ before MJ turned eighteen. Ferriter J found it difficult to form any view on the damage said to arise in circumstances where a review decision was still pending in respect of AJ’s scheme application. In the circumstances, it seemed to Ferriter J that the appropriate step to take was to hold over any further consideration of Francovich damages until after the review decision in respect of AJ’s scheme application had been handed down.
Ferriter J refused SH’s application for relief. Ferriter J adjourned for further consideration AJ’s claim for Francovich damages for non-transposition of article 22 of the Qualification Directive pending determination by the Minister of the application for review of the refusal of AJ’s claim for family re-unification pursuant to the scheme. Given the intersection between the issues in the two cases, Ferriter J proposed holding over consideration of any costs issues arising until AJ’s case was finally disposed of.
Case adjourned.
JUDGMENT of Mr Justice Cian Ferriter delivered this 27 th day of June 2022
These two cases raise a number of potentially important issues as to the proper application of the family reunification provisions contained in s.56 International Protection Act 2015 (“s.56”), including issues as to the compatibility with EU law, the Constitution and the ECHR of the requirement in s.56 that a child of a refugee must be under the age of 18 at the date of the family reunification application in order to qualify for family reunification. Both applicants contend that such a requirement is contrary to EU law, the Constitution and the ECHR in circumstances where they had children who were under 18 at the date the applicants applied for international protection (and, in the case of AJ, at the date of him being granted international protection status) but where through no fault of theirs, those children had “aged out” i.e. become over 18 before the date on which applications for family reunifications could be, or were, made.
Both cases also raise potentially significant issues as to the proper scope and application of a non-statutory scheme operated by the Minister in respect of family reunification of non-EEA nationals.
There is a separate issue in AJ's case, which is a significant issue in its own right, concerning the alleged non-transposition of article 22 of Directive 2004/83/EC (“the Qualification Directive”), which is a provision concerning the information to be provided to beneficiaries of international protection status on their acquisition of such status.
While the two cases were heard separately, the same counsel appeared for both the applicants and the respondents in each of the two cases, and many of the arguments run in SH (which was heard first) were adopted by the parties in the AJ case. In the circumstances, I took the view that a single judgment was appropriate as it will, I hope, provide for a more comprehensive and coherent elucidation of the wider issues arising.
This judgment is structured as follows:
I. Introduction
II. Factual background
III. s.56(9)(a) decisions vitiated by delay/error of law?
IV. s.56(9)(a)/its operation repugnant to the Constitution and/or in breach of EU law and/or in breach of the ECHR?
V. Non-EEA policy scheme
VI. Non-transposition of article 22 Qualification Directive?
VII. Conclusion
Given its centrality to the issues in these cases, it worth quoting the relevant provisions of s.56 at this juncture. S.56(1) provides:
“A qualified person (in this section referred to as the “sponsor”) may, subject to subsection (8), make an application to the Minister for permission to be given to a member of the family of the sponsor to enter and reside in the State.”
Under s.2 of the 2015 Act, a ‘qualified person’ includes a person who has been granted refugee status.
S.56(9) provides:
“(9) In this section and section 57, “member of the family” means, in relation to the sponsor—
(a) where the sponsor is married, his or her spouse (provided that the marriage is subsisting on the date the sponsor made an application for international protection in the State),
.. or
(d) a child of the sponsor who, on the date of the application under subsection (1), is under the age of 18 years and is not married.”
As can be seen, s.56(a)(d) requires that the child of the applicant for family reunification be under the age of 18 (and unmarried) at the date of the application for family reunification.
In order to set the legal issues in their appropriate context, it is necessary to set out the relevant factual background in respect of each of the cases of SH and AJ.
SH is a national of Syria from Latakia. He was born on 5 April 1969. His wife remains residing in Latakia, Syria, with their three children, NH (born 31 May 2009), AH (born 24 April 2003), and ZH (born the 29 January 2000).
SH left Syria around 1997 and resided and worked in Saudi Arabia for some 22 years. He left Saudi Arabia in 2019 but could not return to Syria due to his religion (he is Sunni Muslim), fearing both the regime and the militias. He travelled to Turkey in May 2019 where he stayed for six months. In October 2019, he states that he was rescued from the sea in Greece, and that he then stayed in Greece for three months. He left Greece on 30 January 2020 and travelled through Barcelona, Luxembourg and then to Ireland where he arrived on 4 February 2020 and sought international protection, completing the initial forms on that day.
On the date of his application for international protection SH's son AH, residing in Syria, was 16 years old. His other son, ZH was over 18 at that time.
SH completed his Application for International Protection Questionnaire (“AIPQ”) on 21 February 2020. On 3 March 2020, he was interviewed by the international protection office (‘IPO’) under the Dublin III Regulation, subsequent to which a “take back” request was made to Greece.
The respondents state that the holding of interviews by the IPO was suspended by reason of the Covid pandemic and resultant public health advice between:
— 13 March 2020 – 20 July 2020;
— 22 October 2020 – 1 December 2020;
— 18 December 2020 – 10 May 2021 (although a single call-back interview was held on 21 December 2020).
By letter dated 3 June 2020, the Greek authorities refused the take back request for SH on the basis that he had not in fact...
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