A v Minister for Justice & Equality, S v Minister for Justice & Equality, I v Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton,Ms. Justice Dunne
• Judgment Date: 08 December 2020
• Neutral Citation: [2020] IESC 70
• Date: 08 December 2020
• Court: Supreme Court
• Docket Number: Supreme Court appeal number: S:AP:IE:2019:000201 and 209 Court of Appeal record number 2? [2019] IECA ? High Court record number 2019/000 [2019] IEHC 000? [Record No. 2019/000200]

Between

A., S.

and

S.

and

I.

Applicants/Respondents

- and -

The Minister for Justice and Equality, Ireland

The Attorney General

Appellants/Respondents

BETWEEN

I. I. (NIGERIA)

APPLICANT

and

The Minister for Justice and Equality, Ireland

The Attorney General

RESPONDENTS

AND

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

NOTICE PARTY

[2020] IESC 70

Clarke C.J.

O'Donnell J.J.

Dunne J.

Charleton J.

Baker J.

Supreme Court appeal number: S:AP:IE:2019:000201 and 209

[2020] IESC 000

Court of Appeal record number 2?

[2019] IECA ?

High Court record number 2019/000

[2019] IEHC 000?

[Record No. 2019/000200]

An Chúirt Uachtarach

The Supreme Court

Family reunification – Constitutionality – International Protection Act 2015 s. 56 – Respondents appealing against the High Court’s declaration that s. 56(9)(a) of the International Protection Act 2015 is repugnant to the Constitution – Whether s. 56(9)(a) of the International Protection Act 2015 is incompatible with the European Convention on Human Rights

Facts: In the “A” and “S” cases, Barrett J delivered a written judgment in A. v Minister for Justice and Equality; S and S v Minister for Justice and Equality [2019] IEHC 547, and a second judgment concerning the form of the order, A. v Minister for Justice and Equality No. 2; S and S v Minister for Justice and Equality No. 2 [2019] IEHC 588. In the “I” case, Humphreys J delivered an order and judgment of 29th October, 2019. “A” and “S” dealt with appeals against the High Court’s declaration that s. 56(9)(a) of the International Protection Act 2015 is repugnant to the Constitution and incompatible with the European Convention on Human Rights (ECHR) insofar as it limits the application for family reunification with a spouse to the spouse of a marriage subsisting on the date the sponsor made an application for international protection in the State. “I” concerned the question of whether s. 56(8) of the 2015 Act is contrary to the Constitution, and if not, whether it is incompatible with the ECHR. It also concerned the question of whether the proceedings were premature because the applicant had not submitted an application for a visa for her family pursuant to the Policy Document on Non-EEA Family Reunification of the first respondent, the Minister for Justice and Equality, and the issue of whether she had a vested right to family reunification, pursuant to s. 18(3) of the Refugee Act 1996. In the matter of “S”, leave to appeal to the Supreme Court was granted in a determination dated 19th December, 2019. In the matter of “A” and in the matter of “I” leave was granted in both cases, by way of separate determinations, on 21st January, 2020. It was directed by the Court that all three cases would be heard jointly, with the cases of “A” and “S” being dealt with together, followed sequentially by “I”. This was primarily because of the issue of vested rights, which occurs as an issue in the “I” case, but not in the other two related cases.

Held by Dunne J that, in the cases of “A” and “S”, the provisions of s. 56(9) of the 2015 Act were not unconstitutional and incompatible with the ECHR on the basis of the distinction made in the section between pre-flight marriages and post-flight marriages. In the case of “I”, Dunne J held that the imposition of a time limit in s. 56(8) of the 2015 Act was not unconstitutional and incompatible with the ECHR, and that the applicant did not have a vested right to seek family reunification without any time limit having regard to the provisions of the 1996 Act, which was repealed by the 2015 Act.

Dunne J held that she would allow the appeals of the respondents, the Minister, the Attorney General and Ireland, in the “A” and “S” cases. She held that she would dismiss the appeal of the applicant in the “I” case.

Appeal No. 200/19 allowed. Appeal No. 201/19 allowed. Appeal No. 209/19 dismissed.

Judgment of Ms. Justice Dunne delivered the 8th day of December 2020

Introduction

1 This appeal concerns three cases, hereinafter referred to as “A”, “S” and “I”. For ease of reference, the Minister for Justice and Equality, the Attorney General and Ireland shall be hereinafter referred to as “the Minister” and this should be understood to refer to the parties collectively, unless from the context, the meaning appears otherwise. The three applicants in the High Court cases shall be referred to as “Mr. A”, “Mr. S” and “Ms. I” in these proceedings. This is to avoid any confusion because the Minister is the appellant in the matters of “A” and “S”, and is the respondent in the matter of “I”.

2 In the matter of “S”, leave to appeal to this Court was granted in a Determination dated 19th December, 2019. In the matter of “A” and in the matter of “I” leave was granted in both cases, by way of separate Determinations, on 21st January, 2020. It was directed by the Court that all three cases would be heard jointly, with the cases of “A” and “S” being dealt with together, followed sequentially by “I”. As will be seen, this is primarily because of the issue of vested rights, which occurs as an issue in the “I” case, but not in the other two related cases. For ease of reference, this section of the judgment proposes to deal with an overview of the background of the three cases in the same sequence as they were heard, namely “A” and “S” together, followed by “I”.

3 In the “A” and “S” cases, Barrett J. delivered a written judgment in A. v. Minister for Justice and Equality; S and S v. Minister for Justice and Equality [2019] IEHC 547, and a second judgment concerning the form of the order, A. v. Minister for Justice and Equality No. 2; S and S v. Minister for Justice and Equality No. 2 [2019] IEHC 588. “I” concerns an appeal against the order and judgment of Humphreys J. of 29th October, 2019.

4 “A” and “S” deal with appeals against the High Court's declaration that s. 56(9)(a) of the International Protection Act 2015 (“the 2015 Act”) is repugnant to the Constitution and incompatible with the European Convention on Human Rights insofar as it limits the application for family reunification with a spouse to the spouse of a marriage subsisting on the date the sponsor made an application for international protection in the State.

5 “I” concerns the question of whether s. 56(8) of the 2015 Act is contrary to the Constitution, and if not, whether it is incompatible with the ECHR. It also concerns the question of whether the proceedings were premature because Ms. I had not submitted an application for a visa for her family pursuant to the first named respondent's Policy Document on Non-EEA Family Reunification and the issue of whether she had a vested right to family reunification, pursuant to s. 18(3) of the Refugee Act 1996.

Background

6 The case of “S” concerns the Minister's leapfrog appeal directly to this court from the decisions of the High Court (Barrett J.) of the 17th of July, 2019 ( [2019] IEHC 547), and 29th of July, 2019 ( [2019] IEHC 588). Barrett J. found that the provisions of s. 56(9)(a) of the International Protection Act 2015 (hereinafter “the 2015 Act”) were inconsistent with the Constitution. The High Court declared that certain words should be severed from the terms of s. 56(9)(a). The words which the Court determined should be severed are “…provided that the marriage is subsisting on the date the sponsor made an application for international protection in the State”. The court also declared that the relevant provision was incompatible with the provisions of Article 14 of the European Convention on Human Rights.

7 The case of “S” was one in which the parties both agreed a leapfrog appeal to this Court was appropriate in the circumstances and in the Determination the Court noted at para. 4 that:

“While the agreement of the parties is always of value to the court, nevertheless the court must itself be satisfied that the constitutional threshold has been met before permitting an appeal to be brought to this court.”

8 The Determination went on to state that the particular case involved an issue of law of general public importance, and/or that it is in the interests of justice that an appeal be brought to the Supreme Court, but also that there exist exceptional circumstances justifying a direct appeal from the High Court to the Supreme Court. The Court made reference to the submissions that a determination of the invalidity of the provisions of s. 56(9)(a) of the 2015 Act (as well as the determination of its incompatibility with the ECHR) is of “general effect”. Reference was also made to the submission that Barrett J., in making the order which he did, declined to follow another High Court decision in R.C. (Afghanistan) v. Minister for Justice & Equality & Ors [2019] IEHC 65, and the Determination at para. 4 said that “…the judgment therefore raises questions as to the circumstances in which a High Court judge may depart from the decision of another judge of the same court.” At para. 5, the Determination therefore concluded that because the issue raised is confined to a net issue of law and “…in all the circumstances, by reason of the uncertainty that is created in relation to a significant provision of law of general application pending the final resolution of the question raised…” it was appropriate to grant leave to appeal directly to this Court.

9 The “A” case also deals with a leapfrog appeal to this Court against the same decisions of Barrett J. of 17th July, 2019 and 29th July, 2019. As mentioned, the appeal concerns the High Court's declaration that s. 56(9)(a) of the International Protection Act 2015 is repugnant to the Constitution and, insofar as it limits the application for family reunification with a spouse to the spouse of a marriage subsisting on the date the sponsor made an application for international protection in the State, is incompatible with the European Convention on Human Rights.

10 In making their...