X (R ) Q M A & C X M v Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 10 December 2010
• Neutral Citation: [2010] IEHC 446
• Court: High Court
• Date: 10 December 2010

[2010] IEHC 446

THE HIGH COURT

[No. 116 J.R./2010]

X (R) & Ors v Min for Justice

BETWEEN

R.X., Q.M.A. AND C.X.M.

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

REFUGEE ACT 1996 S18

REFUGEE ACT 1996 S18(4)

IZEVBEKHAI v MIN FOR JUSTICE UNREP SUPREME 9.7.2010 2010 IESC 44

REFUGEE ACT 1996 S18(1)

REFUGEE ACT 1996 S18(2)

REFUGEE ACT 1996 S18(3)(A)

REFUGEE ACT 1996 S18(3)(B)

REFUGEE ACT 1996 S18(3)

GREEN DALE BUILDING CO LTD, IN RE 1977 IR 256

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 3

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 4(1)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 4(2)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 4

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 4(3)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 4(4)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 4(1)(B)

MCCARRON v SUPERINTENDENT KEARNEY UNREP SUPREME 11.5.2010 2010 IESC 28

INTERPRETATION ACT 2005 S22(1)

REFUGEE ACT 1996 S18(4)(A)

MEADOWS v MIN FOR JUSTICE & ORS UNREP SUPREME 21.1.2010 2010 IESC 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CARMODY v MIN FOR JUSTICE & ORS 2010 1 IR 635 2010 1 ILRM 157 2009/8/1838 2009 IESC 71

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(1)

WALSH & ORS, STATE v LENNON & ORS 1942 IR 112

CONSTITUTION ART 29.6

MCD (J) v L (P) & M (B) 2010 1 ILRM 461 2009/34/8411 2009 IESC 81

CONSTITUTION ART 41

CONSTITUTION ART 41.3.1

FERRITER JUDGING DEV: A REASSESSMENT OF THE LIFE & LEGACY OF EAMON DE VALERA 2007 26

CONSTITUTION ART 42

NICOLAOU, STATE v BORD UCHTALA 1966 IR 567

CALDARAS v MIN FOR JUSTICE UNREP O'SULLIVAN 9.12.2003 2004/6/1247

O (A) & ORS v MIN FOR JUSTICE 2003 1 IR 1 2003/31/7267

M (T) & ORS v MIN FOR JUSTICE UNREP EDWARDS 23.11.2009 2009/37/9192 2009 IEHC 500

MARCKX v BELGIUM 1979-80 2 EHRR 330

BOUGHANEMI v FRANCE 1996 22 EHRR 228

O (G) & ORS v MIN FOR JUSTICE UNREP BIRMINGHAM 19.6.2008 2008/47/10172 2008 IEHC 190

REFUGEE ACT 1996 S18(4)(B)

O'NEILL & ORS v MURPHY & HARRIS 1948 IR 72

KILLEEN v DPP & ORS 1997 3 IR 218 1998 1 ILRM 1 1998/23/8845

WHITE v DUBLIN CITY COUNCIL & ORS 2004 1 IR 545 2004 2 ILRM 509 2004/50/11423 2004 IESC 35

IMMIGRATION LAW

Family reunification

Dependent family members - Extended family - Internal review of decision - Ultra vires - Whether respondent had jurisdiction to conduct internal review - Whether internal review inconsistent with statutory scheme - Whether reasons sustainable - Constitutional rights - European Convention on Human Rights - Whether first applicant's constitutional rights potentially affected or engaged by decision - Whether constitutional guarantee of family life and protection of marriage potentially extendible to grandparents and siblings - Whether decision manifestly unreasonable - Izevbekhai v MJELR [2010] IESC 44 (Unrep, SC, 09/07/2010); Carmody v MJELR [2009] IESC 71, [2010] 1 IR 635; Meadows v MJELR [2010] IESC 3 (Unrep, SC, 21/01/2010); O(G) v MJELR [2008] IEHC 190 (Unrep, Birmingham J, 19/06/2008) considered - M(T) v MJELR [2009] IEHC 500 (Unrep, Edwards J, 23/11/2009) followed - Caldaras v MJELR (Unrep, O'Sullivan J, 09/12/2003) not followed - Refugee Act 1996 (No 17), s 18 - European Convention on Human Rights Act 2003 (No 20), s 5 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), regs 3 & 4 - Constitution of Ireland 1937, art 41 - European Convention on Human Rights, art 8 - Decision quashed (2010/116JR - Hogan J - 10/12/2010) [2010] IEHC 446

X(R) v Minister for Justice, Equality and Law Reform

Facts The applicants sought by way of judicial review to quash a decision of the respondent whereby he refused an application to permit the second and third named applicants (who were respectively the mother and sister of the first named applicant) to enter and reside in the State in accordance with section 18(4) of the Refugee Act, 1996. The first named applicant having been granted refugee status applied to the respondent for travel visas for her children and her mother and sister. The application in respect of the second and third named respondents was originally refused by the respondent but following the submission of further documentation and medical reports the respondent undertook to review that original decision. The medical report submitted to the respondent stated that the second named applicant was unable to support herself. During the time the applicant was in Ireland, the second and third named respondents cared for her children and were in receipt of remittances from the first named applicant from Ireland. In a letter to the applicants the respondent refused the application on the grounds that the applicant was not in a position to support the family members applied for and further they did not qualify as dependent family members under s. 18(4) of the Refugee Act 1996. The applicants submitted that the reasons given by the respondent were not sustainable in law. It was submitted on behalf of the respondent that although he agreed to hold an internal review, in light of the Supreme Court decision in Izevbekhai v. Minister for Justice, Equality and Law Reform [2010] IESC 44, the respondent did not in fact have jurisdiction to conduct such an internal review.

Held by Hogan J. in granting the application: That the true ratio of Izevbekhai was that the Minister's discretion with regard to subsidiary protection was made conditional on the notification which was required to be sent to any person who was the subject of a deportation order and that specific notification only applied to deportation orders made after the operative date. However, that judgment did not mean that a statutory power could be exercised once and only once. In respect of a s. 18(4) application, the report of the Refugee Applications Commissioner although an essential starting point, did not preclude the respondent from receiving additional submissions or further evidence and consequently the respondent did not act ultra vires in conducting an internal review in this case. Against the particular and special background of this case, the second and third named respondents came within the scope of Article 41 of the Constitution and would also come within the meaning of 'family' within Article 8 ECHR. Consequently, as the respondent's decision impacted on Constitutional rights, the reasoning of that decision should have disclosed the essential rationale on foot of which the decision was taken. The reasoning of the respondent was defective as regards the issue of whether the second named applicant was suffering from a mental or physical disability to such an extent that it was not reasonable for her to maintain herself fully, since there was no explanation at all as to how the respondent arrived at his conclusion. Furthermore, so far as the dependency criterion was concerned, the respondent applied the wrong legal test. The evidence available to the respondent appeared to admit of no conclusion other than that the second and third named respondents were dependent on the applicant.

Reporter: L.O'S.

1 1. In these proceedings the applicants seek to quash a decision of the Minister dated 29 ^th September, 2009, whereby he refused an application to permit the second and third named applicants (who are respectively the mother and sister of the first named applicant) to enter and reside in the State in accordance with the provisions of the Refugee Act 1996 ("the 1996 Act").

2 2. The applicants are all Somalis. The first applicant, Ms. RX, arrived in Ireland in September, 2004 and was granted refugee status here in January, 2006. She subsequently applied to the Minister for travel visas for her three children and her mother, Ms. QMA and her sister Ms. CA in accordance with s. 18 of the 1996 Act. As it happens, I need not concern myself now with the situation of the three children. Their application was originally refused in December, 2008, but following DNA testing, the Minister ultimately acceded to this application following an internal review of the original decision. Two of the children now reside in Ireland with their mother and the other has moved to Sweden where she resides with an aunt.

3 3. Turning now to the position of the other family members, their application was originally refused by a decision dated 8 ^th December 2008. Among the reasons given bearing on the position of the mother and the sister was that:

"....you have provided insufficient and unsatisfactory evidence of dependency;

you have failed to establish that QMC and CXM are suffering from a mental or physical disability to such an extent that it is not reasonable to maintain themselves fully...."

4 4. On 11 ^th March, 2009, the applicants' solicitor wrote to the Minister seeking an internal review of this decision. Documentation was then supplied to show that the mother was suffering from depression, stress, left eye poor vision and anxiety neurosis. In April, 2009 a further medical report was sent which apparently showed that the mother's condition had deteriorated significantly to the point that she was now blind in her left eye and had poor vision in her right eye, was suffering from depression and had difficulty walking due to rheumatism. The report concluded by stating that the mother was advised:

"to continue medication regularly, have follow up every month and needs a close family support to take her care of her grandchildren and she is unable to support herself and her children and operation for her eye."

5 5. On 3 ^rd April, 2009, the Minister had undertaken to review this original...