S (A M)(Somalia) & K (A)(Afghanistan) v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cross
• Judgment Date: 14 February 2012
• Neutral Citation: [2012] IEHC 72
• Court: High Court
• Date: 14 February 2012

[2012] IEHC 72

THE HIGH COURT

[No. 630 J.R./2011]

[No. 904 J.R./2011]

S (A M)(Somalia) & K (A)(Afghanistan) v Min for Justice

JUDICIAL REVIEW

BETWEEN

A.M.S. (SOMALIA)

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

AND

BETWEEN

A.K. (AFGHANISTAN)

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

REFUGEE ACT 1996 S18(3)

REFUGEE ACT 1996 S18(4)

REFUGEE ACT 1996 S18(1)

REFUGEE ACT 1996 S18(3)(A)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CONSTITUTION ART 41

F(ISFO) v MIN FOR JUSTICE & ORS (NO 2) UNREP COOKE 17.12.2010 2010/19/4624 2010 IEHC 457

X ( R) & ORS v MIN FOR JUSTICE & ORS 2011 1 ILRM 444 2010/54/13491 2010 IEHC 446

NICOLAOU, STATE v BORD UCHTALA 1966 IR 567

REFUGEE ACT 1996 S18(2)

ALI v MIN FOR JUSTICE & ORS UNREP COOKE 25.3.2011 2011 IEHC 115

REFUGEE ACT 1996 S18(4)B

DE SMITH JUDICIAL REVIEW 6ED 5.162-5.167

IMMIGRATION LAW

Family reunification

Judicial review - Fair procedures - Proportionality - Ability to support family - Burden on social welfare - Refusal on grounds of inability to support to family members and where family members would become unreasonable burden on social welfare system - Whether proportionality of refusal on constitutional rights considered - Whether proportionality of refusal on European Convention on Human Rights rights considered - Whether essential rationale of decision disclosed - Whether respondent exercised discretion correctly - Whether decision flowed from premises on which it was based and was in accord with fundamental reason and common sense - Whether formulaic decision - Whether respondent operated a fixed policy - Whether respondent introduced "sponsorship requirement" not contemplated in legislation - Whether delegation of decision valid - ISOF v Minister for Justice [2010] IEHC 457 approved - Ali v Minister for Justice [2011] IEHC 115 (Unrep, Cooke J, 25/3/2011) considered - Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701 applied - Refugee Act 1996 (No 17), s 18 - Constitution of Ireland 1937, art 41 - European Convention on Human Rights 1950, art 8 - Decisions quashed (2011/630 & 904JR - Cross J - 14/2/2012) [2012] IEHC 72

S(AM) v Minister for Justice and Equality

Facts section 18 of the Refugee Act 1996 provides, inter alia, that "(1) Subject to section 17(2), a refugee in relation to whom a declaration is in force may apply to the Minister for permission to be granted to a member of his or her family to enter and to reside in the State and the Minister shall cause such an application to be referred to the Commissioner and a notification thereof to be given to the High Commissioner. …

(3)(a)… if, after consideration of a report of the [Refugee Applications] Commissioner submitted to the Minister under subsection (2), the Minister is satisfied that the person the subject of the application is a member of the family of the refugee, the Minister shall grant permission in writing to the person to enter and reside in the State and the person shall be entitled to the rights and privileges specified in section 3 for such period as the refugee is entitled to remain in the State.

(4) (a) The Minister may, at his or her discretion, grant permission to a dependent member of the family of a refugee to enter and reside in the State and such member shall be entitled to the rights and privileges specified in section 3 for such period as the refugee is entitled to remain in the State.

(b) In paragraph (a), 'dependent member of the family', in relation to a refugee, means any grandparent, parent, brother, sister, child, grandchild, ward or guardian of the refugee who is dependent on the refugee or is suffering from a mental or physical disability to such extent that it is not reasonable for him or her to maintain himself or herself fully."

The applicants had been granted leave to seek certiorari by way of judicial review of the decisions of the respondent refusing their applications for family reunification in respect of dependent members of their families who came within the ambit of section 18(4) of the Act of 1996. They contended, inter alia, that the Minister had applied a fixed policy approach to the consideration of the applications and that he had not exercised his discretion under section 18 of the Act of 1996 proportionately of fairly or in consideration of their rights pursuant to the European Convention on Human Rights (particularly, Article 8 thereof) or Article 41 of Bunreacht na hÉireann.

Held by Mr. Justice Cross in granting the relief sought, 1, that that the constitutional protection of the family was confined to married parents and children. State (Nicolaou) v. An Bord Uchtala [1966] I.R. 567 followed.

2. That the fact that the decision had no reference to the rights of the applicants under the European Convention on Human Rights was not, of itself, important. What was important was whether there had been any indication of proportionality in the refusal of family reunification on the sole grounds of inability of the applicant to financially support the subjects of the application in this State and their likely inability to support themselves without reliance on the social welfare system of the State.

3. That, for the purposes of an assessment under section 18(2) of the Act of 1996, it was the domestic circumstances of the person whom the refugee sought permission to enter the State for (not the refugee himself) that was the relevant consideration.

4. That the Minister had a wide discretion under section 18 of the Act of 1996 and that the economic circumstances of the State were a relevant consideration when exercising that discretion.

5. That only one matter had been addressed by the respondent when exercising his discretion under section 18(4) of the Act: that each of the dependents would become a burden on the State; and that was not fair or indicative that the balancing of rights was proportional. Accordingly, there had been no indication of any proportionate analysis of the impact of the respondent's decision upon the rights of the applicants pursuant to Article 8 of the European Convention on Human Rights. Meadows v. Minister for Justice [2010] IESC 3 applied.

6. That no fixed policy approach had been applied to the applications for family reunification.

1. General

2 2 1.1 The above two cases were heard together as they relate essentially to the same issues.

3 3 1.2 The applicant, Mr. S., is a Somali born national who came to Ireland as an asylum seeker in May 2007 and was granted a refugee declaration on 8 ^th January, 2009. On 11 ^th May, 2009, the applicant applied to the respondent pursuant to the provisions of ss. 18(3) and (4) of the Refugee Act 1996 (as amended) for refugee family reunification with his wife, daughter, mother and four minor siblings. All the family members had been living together in a refugee camp outside Mogadishu at the time and they are now in Addis Ababa in Ethiopia. The applicant's daughter and one of his brothers died in January 2010, in a bomb attack in Somalia while attempting to escape to Ethiopia.

4 4 1.3 The application for the applicant's spouse was granted two years later in May 2011.

5 5 1.4 The applications of the applicant's mother and his surviving siblings (two of whom are no longer minors) was refused by an executive officer in the Irish Naturalisation and Immigration Service (INIS) in a single decision. This decision was issued to the applicant on 6 ^th July, 2011 and is the subject of the first judicial review.

6 6 1.5 The applicant, K. is a citizen of Afghanistan who came to Ireland as an asylum seeker in 2005. He was granted a refugee declaration by the respondent on 15 ^thAugust, 2007 and has lived in the State as a recognised refugee since then. He is apparently severely disabled by polio.

7 7 1.6 On 14 ^th January, 2010, the applicant applied for refugee family reunification with his father pursuant to the provisions of s. 18(4) of the Refugee Act 1996. The reason for the application was that his father was suffering from Parkinson's disease and was living in difficult circumstances in Pakistan. An application for the applicant's spouse was granted in May 2011.

8 8 1.7 The application in respect of the applicant's father was refused by the executive officer in the INIS and the decision issued on 30 ^th August, 2011.

9 9 1.8 That is the second decision, the subject matter of the review.

10 10 1.9 Leave to apply for judicial review was given to the applicant, Mr. S. by Cooke J. on 25 ^thJuly, 2011, and leave to the applicant, Mr. K. was given by Cooke J. on 10 ^th October, 2011.

2. The Act

2 2 2.1 Section 18(1) of the Refugee Act 1996, provides as follows:-

2 "(1) Subject to section 17(2), a refugee in relation to whom a declaration is in force may apply to the Minister for permission to be granted to a member of his or her family to enter and to reside in the State and the Minister shall cause such an application to be referred to the Commissioner and a notification thereof to be given to the High Commissioner."

3 3 2.2 A distinction is drawn between immediate members of a refugee's family and dependent family members under s. 18, in that s. 18(3)(a) provides:-

"…if, after consideration of a report of the [refugee applications] Commissioner submitted to the Minister under subsection (2), the Minister is satisfied that the person the subject of the application is a member of the family of the refugee, the Minister shall grant permission in writing to the person to enter and reside in the State and the person shall be entitled to the rights and privileges specified in section 3 for such period as the refugee is entitled to remain in the State." (Emphasis added)

4 4 2.3 Family members as covered by s. 18(3) are the spouse or a child under...