O v Minister for Justice
| Jurisdiction | Ireland |
| Judge | Ms. Justice Bolger |
| Judgment Date | 09 November 2022 |
| Neutral Citation | [2022] IEHC 617 |
| Court | High Court |
| Docket Number | [2021/114 JR] |
[2022] IEHC 617
[2021/114 JR]
THE HIGH COURT
International protection – Family reunification – International Protection Act 2015 s. 56(9) – Applicant seeking to challenge the decision of the respondent refusing his application for family reunification with his non-marital partner – Whether s. 56(9) of the International Protection Act 2015 is repugnant to the provisions of the Constitution and incompatible with EU law and the State’s obligations under the ECHR
Facts: The applicant, a Nigerian national, arrived in the State in January 2015 and sought international protection. In May 2015 he married an EU citizen but they later separated. The marriage had been found by the respondent, the Minister for Justice, in a separate process to have been a marriage of convenience but the applicant disputed that and averred that it was a genuine marriage. In August 2020, the applicant was declared a refugee. In November 2020, he applied for family reunification with his non-marital Nigerian partner and their three children who had all continued to reside in Nigeria since the applicant was forced to flee. He was granted reunification with his children but his application for his partner was refused on the basis that s. 56(9) of the International Protection Act 2015 only permits unification with a marital partner. Non-marital partners are covered by a separate administrative non-EEA Family Reunification Policy. The applicant applied to the High Court seeking to challenge the decision of the respondent dated 25 November 2020, refusing his application for family reunification with his non-marital partner pursuant to s. 56 of the 2015 Act. He claimed that s. 56(9) is repugnant to the provisions of the Constitution and incompatible with EU law and the State’s obligations under the European Convention on Human Rights.
Held by Bolger J that no EU law rights were engaged in the application of s. 56 and the Charter of Fundamental Rights and Freedoms was not therefore applicable. She held that it was open to the applicant to invoke the policy which included a Ministerial discretion to disapply the financial requirements which the applicant said he could not satisfy. She held that it is lawful for the State to provide a non-statutory scheme for family reunification of non-marital partners, even where marital partners are permitted to avail of a less restrictive statutory scheme, as the decision maker is required to respect any constitutional or Convention rights that the applicant may have. She held that the State had not breached the applicant’s constitutional rights by providing a different and potentially more restrictive non-statutory scheme to assess the nature of his non-marital relationship in order to determine his entitlement to family reunification with them; a subsisting marital status confirms commitment by virtue of the parties having entered into the relationship, in contrast to the need to prove commitment within a non-marital relationship by a consideration of the circumstances of the relationship rather than just the fact of it. She held that the applicant’s status was that of a married person which precluded him from asserting any potential constitutional rights of an unmarried person seeking family reunification with their non-marital partner as the issue was jus tertii. She held that the applicant’s non-marital relationship was not materially similar to marriage as his relationship permitted him to marry a third party, as he chose to do, whereas no such choice would have been available to him had he been in the martial relationship that is recognised in Irish law. She held that the applicant’s Convention rights had not been breached by denying him the benefit of s. 56 family reunification.
Bolger J refused the application for certiorari. Her indicative view was that the respondent was entitled to costs against the applicant.
Application refused.
JUDGMENT of Ms. Justice Bolger delivered on the 9th day of November, 2022.
The applicant seeks to challenge the decision of the respondent dated 25 November 2020, refusing his application for family reunification with his non-marital partner pursuant to s. 56 of the International Protection Act 2015. He claims that s.56(9) is repugnant to the provisions of the Constitution and incompatible with EU law and the State's obligations under the ECHR. For the reasons set out below I am refusing this application.
The applicant is a Nigerian national who arrived in the State in January 2015 and sought international protection. In May 2015 he married an EU citizen but they later separated. The marriage has been found by the Minister in a separate process to have been a marriage of convenience but the applicant disputes that and has averred in these proceedings that it was, and still is, a genuine marriage. In August 2020, the applicant was declared a refugee. In November 2020, he applied for family reunification with his non-marital Nigerian partner and their three children who had all continued to reside in Nigeria since the applicant was forced to flee. He was granted reunification with his children but his application for his partner was refused on the basis that s. 56(9) only permits unification with a marital partner. Non-marital partners are covered by a separate administrative non-EEA Family Reunification Policy (hereinafter referred to as the “policy”).
The applicant argues that the Minister is improperly seeking to expand the basis for the refusal of his application to include his marital status in these proceedings, even though the refusal of his application for family reunification was grounded solely on his partner not being his marital partner.
The applicant claims that the policy will not afford him reunification with his partner because he is unable to comply with its financial requirements. He submits the Minister must show that the policy affords him a very good chance of success so that it is a real, and not an illusory, alternative remedy.
Limiting statutory family reunification to a spouse will unfairly split non-marital families by leaving one parent isolated from the other and the children which, he says, does not accord with the purpose of family reunification to ensure that people can flee persecution without fear of leaving their families behind forever. This limitation is contrary to Article 40.1 of the Constitution, Articles 8 and/or 12, in conjunction with Article 14, of the ECHR and/or Articles 7 and/or 9, in conjunction with Articles 18 and 21 and/or 24 of the Charter of Fundamental Rights and Freedoms.
The applicant relies on constitutional rights to equality pursuant to Articles 40.3 and family rights pursuant to Article 41 of the Constitution in arguing that s.56(9) is unconstitutional. He seeks to compare himself to a married refugee who has a marital partner and family in the country of origin, to whom he says he is in a materially similar situation and argues that the only basis for his different treatment is the existence of a marriage which is not a relevant, rational or proportionate difference. He cites the decision of O'Donnell J. (as he then was) in Murphy v. Ireland [2014] 1 IR 198 where marriage was described as a “kind of suspect category” and that differentiation on the grounds of marital status “must be demonstrated to comply with the principles of equality”. He argues that the precise constitutional status of the non-marital family was left open by the court in I.R.M. v. Minister for Justice [2018] 1 IR 471.
The applicant asserts that his ECHR rights to non-discrimination on grounds of his marital and refugee status have been breached and identifies a similar married comparator whose married partner qualifies under s.56(9).
The Minister relies on the policy which she says allows a discretion to grant a permission even in cases that do not meet its requirements, including financial requirements. It must be presumed that the Minister will exercise her discretion lawfully until the contrary is shown and so any challenge the applicant wishes to bring should be against a negative decision under the policy in the event of such a decision being made. There is no unlawful discrimination in affording rights via a non-statutory scheme rather than a statutory scheme.
The Minister relies on the applicant's status as a person married to a third party to condemn, firstly, his attempt to impugn s. 56 by reference to a hypothetical married person and, secondly, his reliance on another married person as a comparator in asserting his constitutional rights to equality. The Minister says her reliance on the applicant's marital status relates to the constitutionality of s. 56 and not the justification for any decision made under it. She submits the proceedings are misconceived and amount to a jus tertii which should not be permitted in a constitutional challenge.
Whilst the Minister maintains the applicant's marriage to an EU citizen was a marriage of convenience, she relies firstly on S. v. Minister for Justice [2020] IESC 48 that even a marriage of convenience cannot be a nullity at law and secondly on the applicant's own assertion that it was a genuine marriage which she says prevents him from saying it is a nullity. The Minister submits the correct comparator for the applicant is as a refugee in a polygamist marriage, a status not recognised in Irish law.
The Minister submits that no EU law rights are engaged as the Qualification Directive does not apply to family members in the country of origin and Ireland has opted out of Directive 2003/86/EC on the right to family reunification. Therefore, neither the Directives nor the Charter have any application.
The Constitution does not mandate the comparable treatment of marital...
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N.I. v Minister for Justice
...cases and also recognises the particular vulnerability of certain persons such as children. […]” 62 . In O v. Minister for Justice [2022] IEHC 617 it was recognised that whilst economic considerations were described as a very necessary part of family reunification under the policy, para. 1.......