X v Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 09 June 2020
• Neutral Citation: [2020] IESC 30
• Court: Supreme Court
• Docket Number: [Record No. 2019/000137]
• Date: 09 June 2020

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

APPELLANTS

AND

X

RESPONDENT

AND

UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES

NOTICE PARTY

[2020] IESC 30

Clarke C.J.

Dunne J.

O'Malley J.

Irvine J.

Baker J.

[Record No. 2019/000137]

THE SUPREME COURT

Judicial review – Family reunification – International Protection Act 2015 s. 56(9) – Appellant appealing from a decision of the High Court granting an order of certiorari quashing the decision of the appellant to refuse an application for family reunification – Whether the definition of “child” for the purpose of family reunification could include a minor who is said to be the child of the applicant for family reunification but who is not a biological or adopted child of the applicant

Facts: The appellants, the Minister for Justice and Equality, Ireland and the Attorney General (the Minister), were by a determination of the 11th October, 2019 given leave to bring a leapfrog appeal to the Supreme Court from a decision of the High Court (Barrett J) of the 3rd May, 2019. The respondent brought judicial review proceedings seeking an order of certiorari quashing the decision of the Minister to refuse an application for family reunification in respect of two children. That order was granted by the High Court on the basis that the Minister erred in his interpretation of the word “child” as it appears in s. 56(9) of the International Protection Act 2015. The issue at the heart of this appeal was the extent or breadth of the definition of “child” for the purpose of family reunification and whether that definition could include a minor who is said to be the child of the applicant for family reunification but who is not a biological or adopted child of the applicant. The United Nations High Commissioner for Refugees was given leave to appear before the Court as an amicus curiae pursuant to an application of the 29th November, 2019.

Held by Dunne J that the key issue at the heart of this case concerned the definition of “child” as that phrase is used in s. 56(9)(d) of the 2015 Act. She held that the word “child” in that context could only be a reference to a biological/adoptive child of the sponsor; that is the literal and ordinary meaning of the word and this is reinforced by an examination of the historical background to the legislation concerned from which it is manifestly clear that rather than introducing a broader meaning of the word “child” in the section, the overall effect of the section was restrictive in terms of those to whom family reunification could apply. Dunne J held that this was a case in which a serious doubt arose as to the paternity of the two children in respect of whom the respondent sought family reunification; that serious doubt was created by the respondent himself in correspondence with the INIS. Dunne J held that, in those circumstances, it was appropriate to seek DNA testing to establish the relationship between the respondent and the children concerned. In circumstances where he refused to undergo such testing, Dunne J held that the Minister was entitled to draw an inference from that fact and to refuse the application. Dunne J held that the respondent had no entitlement to rely on the European Union (Subsidiary Protection) Regulations 2013 by way of vested right or otherwise in relation to his application.

Dunne J held that she would allow the appeal of the Minister and would set aside the order of certiorari.

Appeal allowed.

Judgment of Ms. Justice Dunne delivered the 9th day of June 2020

Introduction

1 The appellants herein (hereinafter collectively referred to as “the Minister”) were by a Determination of the 11th October, 2019 given leave to bring a leapfrog appeal to this Court from a decision of the High Court (Barrett J.) of the 3rd May, 2019. The applicant/respondent (hereinafter referred to as Mr. X) brought judicial review proceedings seeking an order of certiorari quashing the decision of the Minister to refuse an application for family reunification in respect of two children. That order was granted by the High Court on the basis that the Minister erred in his interpretation of the word “child” as it appears in s. 56(9) of the International Protection Act 2015 (hereinafter referred to as the Act of 2015).

2 As can be seen from the Determination of this Court granting leave, the issue at the heart of this appeal is therefore the extent or breadth of the definition of “child” for the purpose of family reunification and whether that definition could include a minor who is said to be the child of the applicant for family reunification but who is not a biological or adopted child of the applicant.

3 The United Nations High Commissioner for Refugees (hereinafter “the UNHCR”) was given leave to appear before this Court as an amicus curiae pursuant to an application of the 29th November, 2019.

Background

4 I propose in this section of the judgment to set out some details of Mr. X's background and to refer to some litigation that Mr. X was involved in previously, arising out of the issues that are central to these proceedings.

5 Mr. X is a Cameroonian national. He arrived in this country on the 21st December, 2006 and applied for asylum. His application for asylum was unsuccessful and, ultimately, on the 13th March, 2013 he applied for subsidiary protection. He was notified by the Minister on the 25th June, 2014 that his application for subsidiary protection was successful. On the 27th January, 2015, Mr. X applied for family reunification in respect of two children, a boy and a girl, pursuant to the European Union (Subsidiary Protection) Regulations 2013 (hereinafter referred to as the “2013 Regulations”).

6 Mr. X has always claimed to be single and the two children concerned live with his sister in Douala. He explained that he remained in touch with them by telephone throughout his time in the asylum system and that he sent money to his sister for them when he was in a position to do so, notwithstanding his limited means. In the course of his subsidiary protection family questionnaire, Mr. X set out details of his relationship with the mother of the children, how they were “abandoned … to my mother” in 2006 and how his relationship with the mother of the children had come to an end.

7 The INIS wrote to Mr. X asking him if he would consent to providing DNA evidence for the purpose of verifying his relationship with the two children. Initially, Mr. X agreed to this proposition but in a letter of the 11th May, 2016, from his solicitors, Messrs. Daly Lynch Crowe & Morris, it was explained that Mr. X had reconsidered his decision to undergo DNA testing. He explained that he had been let down by the mother of the children. She had not waited for him in Cameroon as he had requested but had instead gone to live in the U.K. to pursue an education and to live with another man with whom she has two other children, leaving the other two children, the subject of these proceedings, in Cameroon. Mr. X instructed his solicitors that while he was still in Cameroon, he had already had some suspicions that the mother of the children might have been unfaithful to him and that he might not be the biological father of the two children. He said that he could not face the reality of discovering that he was not their biological father. Incidentally, in that letter the mother of the children is described as the wife of Mr. X, notwithstanding that he has always asserted that he is single. Nothing appears to turn on this discrepancy. It appears to be the case that he was not married to the mother of the children. Finally, it was indicated in the letter that Mr. X was in the process of attempting to obtain a court order in Cameroon confirming that he was the children's sole legal guardian. Mr. X's application for family reunification under the 2013 Regulations was refused by the Minister by letter dated the 22nd August, 2016. The reason given for the decision was stated to be as follows:

“As the applicant is not in a position to undergo DNA testing, the Minister in exercising her discretion has decided not to grant the application for family reunification.”

8 The door was not completely closed to a further application by Mr. X. It was noted that if he was granted guardianship and this was recognised in Ireland, he could make a further application.

9 Approximately one month later, Mr. X sought a review of the decision and enclosed a copy of a judgment of the Western Appeal Court in Cameroon of the 9th June, 2016 appointing him as the sole legal guardian of the children.

10 The application for a review of the decision was refused by letter of the 2nd November, 2016 on the basis that there was no provision for such a review under the 2013 Regulations. It was made clear however that a fresh application could be submitted for family reunification. A new application was furnished on the 20th March, 2017 based on the Cameroon judgment granting Mr. X sole guardianship of the children.

11 It is now necessary to outline some of the difficulties that then arose by reason of certain legislative changes.

12 A letter of the 7th April, 2017 was sent by INIS refusing to process the application of the 20th March, 2017 on the basis that:

“In accordance with s. 56(8) of the International Protection Act 2015, an application for family reunification must be made within twelve months of being granted refugee declaration, a subsidiary protection declaration or from the date of your arrival in Ireland as a Programme Refugee. As twelve months has passed since you received your client's declaration, your client is no longer entitled to apply for family reunification and his application in respect of [his children] cannot be accepted. It may be open to your client to apply for a different immigration permission for his family members.”

13 This resulted in a letter from...