A v The Minister for Justice and Equality ; S v The Minister for Justice and Equality

JurisdictionIreland
JudgeMr Justice Max Barrett
Judgment Date17 July 2019
Neutral Citation[2019] IEHC 547
Date17 July 2019
CourtHigh Court
Docket Number2018 No. 891 JR
(1)
Between:
A
Applicant
– and –
THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL, IRELAND
Respondents
– and –
THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION
Notice Party
(2)
Between:
S AND S
Applicants
– and –
THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL, IRELAND
Respondents
– and –
THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION
Notice Party

[2019] IEHC 547

Barrett J.

2018 No. 891 JR

2017 No. 915 JR

THE HIGH COURT

Asylum, Immigration and Nationality – Constitutional Law – EU Law – Applicants seeking an order of certiorari quashing decision of Minister to deny application for family reunification and a declaration that s.56(9)(a) of the International Protection Act 2015 is unconstitutional and incompatible with the ECHR– Whether s.56(9)(a) of the International Protection Act 2015 is unconstitutional and incompatible with the ECHR

Facts: (1) Mr A, a national of Afghanistan, came to Ireland on 27 July 2015 and was granted asylum on 27 July 2017. Mr A married his wife, a Pakistani national, on 3 April 2017 in Pakistan. He returned to Ireland and applied for family reunification so his wife could join him. This application was denied applying s.56(9)(a) of the International Protection Act 2015 on the basis that the marriage was not subsisting at the time Mr A applied for International Protection. There was no dispute that the Minster correctly applied s.56(9)(a), however the applicant contended that the section was unconstitutional in that, inter alia, he is a member of a marital family within the meaning of Art. 41, yet his wife is not treated as a member of that family; that s.56(9)(a) fails to treat him as an equal under the law contrary to Art 40.1; and that s.56(9)(a) fails to guard with special care the institution of marriage contrary to Art 41.3.1. The applicant further argued that the application of s.56(9)(a) was in violation of Articles 8 and 14 of the European Convention of Human Rights.

(2) Mr S was granted refugee status on 29.06.2016 and married his wife, an Afghan national resident outside of Ireland, on 12.10.17. His application for family reunification was refused by the Minister based on the application of s.56(9)(a) of the Act of 2015. The applicant sought an order of certiorari quashing the decision of the Minister, and declarations that s.56(9)(a) is unconstitutional and incompatible with the ECHR.

Held by Barrett J that s.56(9)(a) is unconstitutional. While provisions of the Oireachtas are presumed to be constitutional and the onus and burden of proof lies on the party making the claim of unconstitutionality, Mr A convincingly demonstrated unconstitutional treatment of him and his marriage. Conversely, Barrett J found that the rationales offered by the Minister in support of the constitutionality of S.56(9)(a) did not hold up to scrutiny. With regard to the ECHR, Barrett J held that he should follow the decision of the European Court of Human Rights in Hode and Abdi v the United Kingdom [2013] 56 EHRR 27, as there was no inconsistency between the interpretation given to the ECHR in that case and the provisions of the Constitution. In Hode and Abdi, the court found no justification for treating refugees who married post-flight differently from those who married pre-flight, and that such different treatment was in violation of Art 14 ECHR read together with Art 8 ECHR. Barrett J held that the same principles applied to s.56(9)(a). Barrett J granted a declaration that s.56(9)(a) of the 2015 Act is repugnant to the Constitution, and an order of certiorari quashing the Minister’s decision of 14.09.2018 refusing the application for family reunification. Had a finding of unconstitutionality not been made, Barrett J held that he would have granted a declaration that s.56(9)(a) is incompatible with the State’s obligations under Art 14 ACHR read in conjunction with Art 8 ECHR.

Barrett J granted the same reliefs to Mr S for the reasons identified in Mr A’s case.

Relief granted.

JUDGMENT of Mr Justice Max Barrett delivered on 17th July, 2019.
A. MR A'S CASE
Part 1
Background
1

In his affidavit evidence, Mr A avers, inter alia, as follows:

‘4. I was born in Afghanistan on 5 February 1990. Owing to the situation in Afghanistan, I was forced to flee on account of a well-founded fear of persecution. I arrived in this State on 27 July 2015 and applied for asylum. My application was granted at first instance on 27 July 2015 pursuant to the Refugee Act 1996.

5. The second named applicant herein was born on 25 March 1998 in Pakistan. She is my second cousin. I say that I have known my wife since birth and we grew up together in Afghanistan. I say that we decided to marry one another last year and we were married on 3 April 2017 in Pakistan.

6. Upon my return home, I consulted with my solicitor about submitting an application for family reunification to allow [my wife]…come to live with me so that we could start our married life together. On or about 19 April 2017 I submitted an application for family reunification to the respondent….

7. By letter dated 12 October 2017: the respondent refused to accept the application on the basis that our marriage was not subsisting at the time I applied for international protection (applying section 56(9)(a) of the 2015 Act).’

2

These facts are undisputed. It is common case that the Minister correctly applied s.56(9)(a) of the International Protection Act 2015. Mr A's key complaints are that s.56(9)(a) is repugnant to the Constitution/incompatible with the European Convention on Human Rights (ECHR).

Part 2
Legislation
3

Section 56 of the Act of 2015 provides, inter alia, as follows:

‘(1) A qualified person (in this section referred to as the “sponsor”) may, subject to subsection (8), make an application to the Minister for permission to be given to a member of the family of the sponsor to enter and reside in the State.

(2) The Minister shall investigate, or cause to be investigated, an application under subsection (1) to determine – (a) the identity of the person who is the subject of the application, (b) the relationship between the sponsor and the person who is the subject of the application, and (c) the domestic circumstances of the person who is the subject of the application….

(4) Subject to subsection (7), if the Minister is satisfied that the person who is the subject of an application under this section is a member of the family of the sponsor, the Minister shall give permission in writing to the person to enter and reside in the State and the person shall, while the permission is in force and the sponsor is entitled to remain in the State, be entitled to the rights and privileges specified in section 53 in relation to a qualified person….

(7) The Minister may refuse to give permission to enter and reside in the State to a person referred to in subsection (4) or revoke any permission given to such a person – (a) in the interest of national security or public policy (“ordre public”), (b) where the person would be or is excluded from being a refugee…(c) where the person would be or is excluded from being eligible for subsidiary protection…(d) where the entitlement of the sponsor to remain in the State ceases, or (e) where misrepresentation or omission of facts, whether or not including the use of false documents, by the person was decisive in the decision to give the person the permission….

(9) In this section and section 57 “member of the family” means, in relation to the sponsor – (a) where the sponsor is married, his or her spouse (provided that the marriage is subsisting on the date the sponsor made an application for international protection in the State)…’.

Part 3
Prematurity
4

The respondents contend that this action is premature, that although Mr A cannot proceed with his statutory reunification application, he can make application under a non-statutory, discretionary reunification scheme that the Minister has separately established. But when it comes to Mr A's claim that, insofar as it impacts on him, s.56(9)(a) is repugnant to the Constitution/incompatible with the ECHR, it is no answer to that claim that there is some separate discretionary administrative process outside the statutory realm of which Mr A might seek to avail and under which he might benefit. That is, with respect, and to use a colloquialism, the “reddest of red herrings”; it but distracts from the true issues in play.

5

In passing, and without prejudice to the generality of the preceding paragraph, the court does not accept that application could have been made under s.4 of the Immigration Act 2004: s.4 concerns applications for permission to land or be in Ireland and thus is engaged at the State's frontiers after a visa has issued.

Part 4
Constitutional Arguments
6

Article 40.1 of the Constitution states that ‘ All citizens shall, as human persons, be held equal before the law’. As Denham C.J. observes in D(M) (a minor) v. Ireland [2012] 1 IR 697, 714, ‘ The principle of equal treatment of citizens, indeed all human persons, is implicit in the free and democratic nature of the State. It permeates the Constitution’. Article 40.3.1° of the Constitution states that ‘ The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen’. The right to marry is protected by Art.40.3 ( Ryan v. Attorney General [1965] IR 294). Article 41 of the Constitution provides, inter alia, that: the Family is ‘ a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law’ (Art. 41.1.1°); the State ‘ guarantees to protect the Family in its constitution’ (Art. 41.1.2°); and the State pledges itself ‘ to guard with special care the institution of Marriage’ and ‘ to protect it against attack’ (Art. 41.3.1°). In short, the provisions of Art.41 create a State...

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  • I.H. (Afghanistan) v Minister for Justice & Equality
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    ...or alternative remedies, my attention has been drawn to the judgment of Barrett J. in A. v. Minister for Justice and Equality [2019] IEHC 547 (Unreported, High Court, 17th July, 2019). A full treatment of that case would take us somewhat beyond the scope of the issue at hand, but the follo......
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