V.B. v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice David Keane
• Judgment Date: 01 February 2019
• Neutral Citation: [2019] IEHC 55
• Docket Number: [2017 No. 632 JR]
• Date: 01 February 2019

BETWEEN

V.B.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2019] IEHC 55

Keane J.

[2017 No. 632 JR]

THE HIGH COURT

JUDICIAL REVIEW

Refugee – International Protection Act 2015 – Judicial review – Applicant seeking an order of certiorari quashing the decision of the respondent – Whether the respondent’s decision was wrong in law

Facts: The first respondent, the Minister for Justice and Equality, made a decision, implicit in a letter of 30 May 2017 from the Irish Naturalisation and Immigration Service (the INIS) to the applicant, a declared refugee, that the applicant’s request by letter dated 18 May 2017 to be permitted to revive an application that she had made in a letter dated 26 June 2014, under s. 18(4) of the Refugee Act 1996, for permission for her mother to enter and reside in the State with her as a dependent family member, the refusal of which had been communicated to her by the INIS in a letter dated 7 July 2015, could not be considered because the 1996 Act had been repealed and replaced by the International Protection Act 2015 with effect from 31 December 2016 and the applicant’s mother fell outside the specific definition of ‘member of the family’ under the equivalent section (s. 56) of that Act. By order made on 31 July 2017, Humphreys J granted the applicant leave to seek an order of certiorari quashing the Minister’s decision, as well as various declarations concerning the status and effect of s. 56(8) and (9) of the 2015 Act. The first ground upon which the applicant was given leave to seek judicial review of the Minister’s decision was that it was wrong in law because, by operation of s. 27 of the Interpretation Act 2005, the repeal of that provision by s. 6 of the 2015 Act, did not affect the right she had ‘acquired, accrued or incurred’ to apply for family reunification with her mother under it. The applicant sought declarations that s. 56(8) of the 2015 Act is: ‘in breach of the principles of non-retro-activity of laws and legal certainty’; incompatible with the State’s obligations under Article 8 of the European Convention on Human Rights (the ECHR); and incompatible with Article 7 of the Charter of Fundamental Rights of the European Union. The applicant also sought declarations that s. 56(9) of the 2015 Act is: in breach of the Constitution of Ireland; incompatible with the State’s obligations under Article 8 of the ECHR; and incompatible with Article 7 of the Charter. The applicant also asserted that the provisions of the Charter were engaged in this case because, in considering an application by a refugee for family reunification, the Minister was implementing EU law.

Held by the High Court (Keane J) that even if the applicant had a vested right to apply for, and obtain, the exercise of the Minister’s discretion under s. 18(4) of the 1996 Act (although the court found that she did not), the clear words of s. 6 and s. 70 of the 2015 Act would have operated to rebut the presumption that the repeal of that section did not affect that right. Keane J held that it would be a clear breach of the ius tertii rule to permit the applicant to challenge the validity of s. 56(8) of the 2015 Act or its compatibility with the ECHR or the Charter in these proceedings because there was no hint or suggestion, much less any direct or indirect statement, in the Minister’s decision that the Minister considered the application to be out of time by operation of that provision. Keane J held that it was plain on the evidence that the Minister’s decision was based on the ineligibility of the applicant’s mother to be considered as a ‘member of the family’ of the applicant under the specific definition of that term contained in s. 56(9) of the 2015 Act. Keane J held that the manner in which the State approaches a family reunification application made by an adult refugee in respect of a dependent parent is not a matter involving the implementation of EU law and, in consequence, not one to which the provisions of the Charter can apply.

Keane J held that the application would be refused.

Application refused.

JUDGMENT of Mr Justice David Keane delivered on the 1st February 2019

Introduction

1 This is the judicial review of the decision of the Minister for Justice and Equality (“the Minister”), implicit in a letter of 30 May 2017 from the Irish Naturalisation and Immigration Service (“the INIS”) to V.B. (“the applicant”), a declared refugee, that the applicant's request by letter dated 18 May 2017 to be permitted to revive an application that she had made in a letter dated 26 June 2014, under s. 18(4) of the Refugee Act 1996, as amended (“the Refugee Act”), for permission for her mother to enter and reside in the State with her as a dependent family member, the refusal of which had been communicated to her by the Irish Naturalisation and Immigration Service (“INIS”) in a letter dated 7 July 2015, could not be considered because the Refugee Act had been repealed and replaced by the International Protection Act 2015 (“the International Protection Act”) with effect from 31 December 2016 and the applicant's mother fell outside the specific definition of “member of the family” under the equivalent section - s. 56 - of that Act.

Procedural history

2 The application is based on an amended statement of grounds dated 17 August 2017, supported by an affidavit of the applicant, sworn on 26 July 2017.

3 By order made on 31 July 2017, Humphreys J granted the applicant leave to seek an order of certiorari quashing the Minister's decision, as well as various declarations concerning the status and effect of s. 56(8) and (9) of the International Protection Act, on the grounds set out in that amended statement.

4 The Minister delivered a statement of opposition dated 20 October 2017. It is supported by an affidavit of verification, sworn on 18 October 2017 by Declan Crowe, an assistant principal officer in the Department of Justice and Equality (“the department”).

5 The applicant filed both written legal submissions and, without the leave of the court, supplemental written legal submissions on 26 April 2018. Both are undated. The respondent filed written legal submissions dated 2 May 2018 on that date.

6 The hearing of the application commenced on 4 May 2018 and, having considerably exceeded the time allotted, resumed and concluded on 11 July 2018.

Background

7 The Minister gave the applicant a statement in writing, dated 6 March 2008, in accordance with s. 17(1)(a) of the Refugee Act, declaring her to be a refugee.

8 Six years later, the applicant wrote a letter dated 26 June 2014 to the family reunification section of the INIS applying for permission for her mother to enter and reside in the State as a member of the applicant's family (“the family reunification application”).

9 Section 18(4)(a) of the Refugee Act empowered the Minister, at his or her discretion, to grant permission to a dependent member of the family of a refugee to enter and reside in the State. Under s. 18(4)(b), a “dependent member of the family”, in relation to a refugee, included a parent of the refugee who was dependent on the refugee or who was suffering from a mental or physical disability to such extent that it was not reasonable for him or her to maintain himself fully.

10 The applicant lays particular emphasis on the fact that the Minister's declaration of her refugee status, dated 6 March 2008, includes an express acknowledgement of her entitlement to apply for permission to be granted to a member of her family to enter and reside in the State in accordance with s. 18 of the Refugee Act but, of course, every recognised refugee had the right to apply under that section whether or not the existence of that right had been expressly drawn to his or her attention by the Minister.

11 The only details provided in the applicant's letter of 26 June 2014 were her mother's name, date of birth and address in the Russian Federation.

12 The Minister referred the family reunification application to the Refugee Applications Commissioner (“the Commissioner”) in accordance with the requirement to do so under s. 18(4)(a) of the Refugee Act. On 5 August 2014, the Office of the Refugee Applications Commissioner (“ORAC”) wrote to the applicant, enclosing a questionnaire for her to complete and submit, together with any other information that she may wish to provide in support of her application, “no later than 26/08/14”. The applicant was asked to note that failure to reply to the ORAC letter on or before the date specified may have an adverse effect on the outcome of her application.

13 Under s. 18(2) of the Refugee Act, it was the function of the Commissioner to investigate the family reunification application and to submit a report in writing to the Minister, addressing the relationship between the refugee concerned and the person the subject of the application, as well as the domestic circumstances of that person.

14 In a subsequent undated letter to ORAC, the applicant requested an extension of time to October 2014 for the submission of her completed questionnaire and supporting documentation on the basis that her mother had yet to obtain unspecified documents from the Russian authorities that, once obtained, would have to be translated into English. ORAC wrote in reply on 26 August 2014, granting an extension of time and fixing a new deadline of 1 October 2014.

15 The applicant never submitted a completed questionnaire or any documentation in support of her application. Nor did she engage in any further correspondence with ORAC or the Minister prior to the Minister's determination.

16 The Commissioner submitted a report dated 30 December 2014 to the Minister. It recorded that the family reunification application had been made to the Minister on 24 July 2014 and referred to ORAC for investigation on 5 August 2014. There is an obvious...