Small Happy Family? An Analysis of Irish Family Reunification Law as it Applies to Beneficiaries of International Protection

• Author: Keire Murphy
• Position: Graduate of Law and French from Trinity College Dublin
• Pages: 173-188

© 2019 Keire Murphy and Dublin University Law Society

SMALL HAPPY FAMILY?: AN ANALYSIS OF IRISH

FAMILY REUNIFICATION LAW AS IT APPLIES TO

BENEFICIARIES OF INTERNATIONAL PROTECTION

KEIRE MURPHY

Introduction

The family is conventionally considered the basic unit of society and the

natural environment for the growth and development of children.

1

This has

engendered a commonly accepted right to family life and given rise to state

obligations under a number of international, regional, and domestic

instruments. For most families, the protection of family life entails

predominantly negative obligations: the requirement for the state not to

arbitrarily interfere with family life. However, in some situations, state

action is required to provide for the practical exercise of this right. Family

reunification is one of these situations.

Family reunification refers to a circumstance in which a family has

been separated – generally with one member crossing an international

frontier – and seeks to be reunited. This generally involves seeking

permission from the state of residence of one of the family members for the

entry and/or residence of the other family members. This article will focus

in particular on family reunification as it applies to recipients of international

protection, which has recently been reformed in Ireland to reduce the scope

of the right of family reunification – a move which, it is submitted, warrants

more critical analysis than it has received to date. This area of the law will

be analysed from the perspective of the rights of the child, in order to better

understand how the reformed family reunification rules fare within the

context of Ireland’s international obligations under the United Nations

Convention on the Rights of the Child (UNCRC).

 Graduate of Law and French from Trinity College Dublin. The author would like to dedicate

this article to all of the people affected by restrictive immigration policies, in particular the

Ouzai community in Saida, Lebanon. The author would also like to thank her parents for giving

her the opportunities she has had and her family and her friends for supporting her in everything

she does.

1

See Article 23(1) International Covenant on Civil and Political Rights 1966; Article 16(3)

Universal Declaration of Human Rights 1948; Preamble to the Convention on the Rights of the

Child 1990; Article 41 of the Irish Constitution.

Trinity College Law Review [Vol 22

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Section I of this article will provide some background to the concepts

of international protection and the rights of the child in Ireland. Section II

will briefly outline the law applying to family reunification for beneficiaries

of international protection in Ireland. Section III will then identify possible

issues with this law.

I. Background

A) International Protection

International protection is a term that covers the granting of refugee status

and the granting of subsidiary protection, both now regulated in Ireland by

the International Protection Act 2015 and in Europe by the Qualification

Directive.

2

Recipients of international protection are a particularly

vulnerable class of individual, coming, by definition, from states in which

they face persecution or serious harm.

3

They have often endured a harrowing

journey to a safe country, and many leave behind family members who

cannot travel. This means that the families of these individuals are often in

especially vulnerable situations. Children in these contexts have either had

to make the perilous journey alone or with their parents, or have been left

behind in unstable and often war-torn countries.

4

B) The Rights of the Child in Ireland

This article will focus on how the myriad rules and policies that regulate the

family lives of these individuals incorporate (or fail to incorporate)

considerations of the rights of the child. The acknowledgement of children’s

rights has been one of the least controversial in the international community;

2

Directive 2004/83/EC (recast 2011/95/EU).

3

A well-founded fear of being persecuted for specific reasons is the qualifying factor for

refugee status, based on Article 1 of the Geneva Convention Relating to the Status of Refugees

1951 (transposed into EU law by Article 2 of the Qualification Directive, and into Irish law by

s 2 International Protection Act 2015); a real risk of serious harm if they should be returned to

their country of origin is the qualifying standard for subsidiary protection (Article 2(f)

Qualification Directive, transposed into Irish law by s 2 International Protection Act 2015).

4

It is worth noting that it is beyond the scope of this paper to examine those granted

humanitarian leave to remain (which can be viewed as a form of international protection), but

suffice to say that this is a population which is granted no rights to family reunification

whatsoever. See Christina Gotzelmann, ‘The Implementation and Administration of Family

Reunification Rights in Ireland’ (2016) 55 Irish Jurist 75, 102. For discussion of the problematic

growth in use of this status, see Keire Murphy, ‘International Protection and Human Rights:

Divergence, Protection Gaps, and their Peril’ (2018) 21 TCLR 349.