S v Minister for Justice and Others

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice Maurice Collins,Ms. Justice Dunne
• Judgment Date: 25 November 2025
• Neutral Citation: [2025] IESC 48
• Docket Number: S:AP:IE:2024:000146

Between

NS

Appellant

and

The Minister for Justice and Equality, Ireland and The Attorney General

Respondents

[2025] IESC 48

Dunne J.

Charleton J.

Woulfe J.

Collins J.

Donnelly J.

S:AP:IE:2024:000146

AN CHÚIRT UACHTARACH THE SUPREME COURT

Family reunification – Constitutionality – International Protection Act 2015 s. 56(9)(d) – Appellant seeking a declaration that s. 56(9)(d) of the International Protection Act 2015 is incompatible with the Constitution – Whether there was an alternate remedy

Facts: The first respondent, the Minister for Justice (the Minister), by letter dated 2 February 2022, informed the appellant, a national of Zimbabwe, that she had been declared a refugee pursuant to s. 47(1) of the International Protection Act 2015. On 4 March 2022, the appellant submitted an application for family reunification to the Family Reunification Unit in the Department of Justice and Equality in respect of her three children in Zimbabwe. On 7 March 2022, the Minister informed the appellant by letter that her application in respect of her second and third born children would be processed in normal course and the application in respect of her eldest daughter could not be accepted, as she was over eighteen years of age on the date of the application and, therefore, did not satisfy the requirements of s. 56(9)(d) of the 2015 Act. The appellant sought leave to apply for judicial review to quash the decision of the Minister, in addition to seeking a declaration that s. 56(9)(d) is incompatible with EU law, the Constitution and the European Convention on Human Rights (ECHR). The High Court found that s. 56(9)(d) was not incompatible with the Constitution, the ECHR, or EU law: [2023] IEHC 501. The Court of Appeal dismissed the appellant’s appeal and upheld the High Court’s finding: [2024] IECA 206. The appellant was granted leave to appeal to the Supreme Court on 17 December 2024. The central issues before the Court were summarised as follows: whether s. 56(9)(d) is incompatible with EU law, repugnant to the Constitution and incompatible with the ECHR, in particular Article 8, whether alone or in conjunction with Article 14; and whether the ‘Policy Document on Non-EEA Family Reunification’ was an alternate remedy such as to preclude the appellant from succeeding.

Held by Dunne J that the provisions of s. 56(9)(d) are not in breach of EU law as Ireland was not bound by the Family Reunification Directive and the Recast Qualifications Directives given that Ireland made a choice not to opt in to those Directives, as it was entitled to do under Protocol No. 21 of the Treaty on the Functioning of the European Union. Likewise, Dunne J held that the provisions of the impugned legislation are not unconstitutional. Dunne J did not accept the contention that s. 56(9)(d) is incompatible with the ECHR. Dunne J held that it remained open to the appellant to make an application for family reunification to the Minister under the Policy Document.

Dunne J dismissed the appeal.

Appeal dismissed.

Final but unapproved

No further redaction required

JUDGMENT of Mr. Justice Maurice Collins delivered on 25 November 2025

1 I agree with the judgment of Dunne J and, for the reasons set out in her judgment, I agree that the appeal must be dismissed. In light of the importance of some of the issues raised by the appeal, I wish to add some observations of my own.

2 Although NS advanced alternative arguments based on the Constitution and the European Convention on Human Rights (ECHR), the principal focus of these proceedings and of this appeal was on whether European Union law requires the State to recognise NS's oldest daughter (SN) as a “ child” for the purposes of section 56 of the International Protection Act 2015 (“ the 2015 Act”), with the consequence that she is to be regarded as a “ member of the family” of NS for the purposes of that provision and, on that basis, entitled to permission to enter and reside in the State in accordance with section 56(4). 1

3 The terms of section 56 are, it should be said, clear and unambiguous in this respect. Section 56(9)(d) provides that a child of the “ sponsor” (here, NS) is a “ member of the family” if, on the date of the application for permission under section 56 (to which, for convenience, I shall refer as an application for family reunification) that child is “ under the age of 18 years and is not married.” Here, there is no dispute but that, as of the date that NS applied for family reunification, SN was not “ under the age of 18 years.” In fact, SN had turned 18 before any decision was made on NS's application for international protection. 2 It would seem clearly to follow that, for the purposes of section 56, SN was not a member of NS's family and therefore fell outside the scope of the statutory family reunification scheme. Indeed, that such was the position as a matter of construction and application of section 56 was not a matter of controversy. 3

NS's EU law Claim

4 But, NS says, section 56(9)(d) of the 2015 Act is incompatible with EU law. For reasons I shall explain, that is a bold claim and one which raises significant constitutional issues.

5 That Ireland has obligations in respect of family reunification resulting from its membership of the EU is not disputed. However, those obligations are specific and narrow. Article 23 of Council Directive 2004/83/EC 4 (“ the Qualification Directive”) which is binding on the State and to which section 57 of the 2015 Act gives effect, obliges Members States to ensure that family unity can be maintained (Article 23(1)) and, to that end (and subject to certain conditions and exceptions) requires Member States to ensure that “ family members” (as defined) who do not otherwise qualify for protection are entitled to residence permits and other benefits (Article 23(2)). 5 However, Article 2(h) of the Qualification Directive defines the “ family members” to which Article 23 applies, and the terms of that definition limit its application to specified family members “ present in the same Member State in relation to the application for international protection.” It was not suggested that the provisions of Article 23 of the Qualification Directive and/or section 57 of the 2015 Act could assist NS or SN and that was for an obvious reason: SN was not a “ family member” within the meaning of that

Directive as she did not accompany NS to the State and was not present in the State at any point during NS's application for international protection

6 There is a further EU measure addressing family reunification, the Family Reunification Directive ( Directive 2003/86/EC). That Directive deals with family reunification generally, with specific provisions in Chapter V in respect of the family reunification of refugees. The difficulty from NS's point of view, however, is that, as recital (17) to that Directive records, Ireland did not participate in the adoption of the Family Reunification Directive and, in the language of that recital, is “ not bound by or subject to its application.” That is not some nice technical point. Rather, it is a point of fundamental constitutional importance that is determinative of the EU law arguments advanced by NS here.

7 Article 29.7 of the Constitution provides that:

“The State may exercise the options or discretions —

….

iii under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice so annexed, [to the Treaty on the Functioning of the European Union] including the option that the said Protocol No. 21 shall, in whole or in part, cease to apply to the State,

but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.” 6

8 As the editors of Hogan et al., Kelly: The Irish Constitution (5th ed; 2018) explain, Article 29.4.7° has its origins in the “ variable geometry” provided for in the aftermath of the Amsterdam Treaty (§5.3.86). Because the United Kingdom had negotiated opt—outs both from the Schengen Agreement and in respect of the entire area of justice and home affairs, it was for practical purposes necessary for Ireland to do likewise if the Common Travel Area was to be maintained ( ibid). The relevant provisions of the Amsterdam Treaty (Protocol No 4) have since been replaced by similar (though not identical) provisions in the Lisbon Treaty (Protocol No 21) and, of course, no longer have any application to the United Kingdom. In any event, Article 29.4.7° provides the constitutional foundation on which the State may “ opt-in” to EU measures taken in respect of the area of freedom, security and justice subject to the prior approval of both Houses. That requirement for prior approval from both Houses is a “ mandatory constitutional requirement” and, absent such approval, legislation purporting to give effect to any measure within the scope of Article 29.4.7° would be repugnant to the Constitution and invalid: Iqbal v Minister for Justice [2008] IESC 29, [2008] 4 IR 362, 374 (per Murray CJ, giving the judgment of the Court).

9 It is evident, therefore, that as a matter of Irish constitutional law, measures adopted by the

EU in the area of freedom, security and justice can bind the State only if, and to the extent that, it exercises the relevant “ option” or “ discretion” in accordance with Article 29.7

10 Title V of Part Three of the Treaty on the Functioning of the European Union (TFEU) gives the Union various competences in the area of freedom, security and justice, including, in Chapter 2, in relation to asylum policy (Article 78) and immigration policy (Article 79). However, Article 1 of Protocol 21 TFEU (which, by virtue of Article 51 of the Treaty on the European Union (TEU), forms an “ integral part” of the Treaties) provides that, subject to Article 3, “ Ireland shall not take part in the adoption by the Council of proposed...