AAM v Minister for Justice and Equality
| Applicant/Plaintiff: | AAM |
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| Respondent/Defendant: | Minister for Justice and Equality |
| Citation/s: | [2013] IEHC 68 |
| Nature of Proceedings: | Judicial Review |
| Court/s: | High Court |
| Judgment Date/s: | 15 December 2013 |
| Judge: | Clark J. |
| Category: | Refugee, Residence |
| Keywords: | Dependant; Entry (Refusal of); Family Reunification; Refugee; Residence |
| Country of Origin: | Somalia |
| URL: | http://www.courts.ie/Judgments.nsf/0/982D755913E882E280257B26005D1913 |
| Geographical Focus: | Ireland |
Facts
The applicant, a national of Somalia, had been granted refugee status in the State, and he applied for family reunification pursuant to Section 18 of the Refugee Act 1996 with his mother and four siblings, who lived in a camp in Somalia. He sent them approximately €157 per month. Whilst the Minister accepted the claimed family relationship, his application was refused on the basis that his family members were not financially dependent on him. It was considered that the applicant might be in a position to continue to provide financial assistance to his family in Somalia given that the cost of living in Somalia would be lower than that in Ireland.
He was granted leave by the High Court to challenge the refusal on two grounds: first, that the Minister had erred in finding that transfers of €2830 from him to the family members in Somalia over the period September, 2009 to May, 2011 were not enough to establish financial dependency, the court noting that €157 a month was almost three times the gross minimum wage in neighbouring Kenya and a very substantial amount given the circumstances of the subjects of the application in a camp in Somalia; and, secondly, that the Minister had applied the wrong test with respect to dependency, the court noting that the test posited in the Refugee Act was not forward looking and did not relate to the possible position in Ireland in the future. Accordingly, the finding that the subjects of the application would, in effect, be better off in Somalia, where the cost of living was lower, was not a relevant consideration in deciding whether they were dependent upon the applicant.
Reasoning
The High Court at the post-leave stage held that an inability to maintain family members in Ireland was not relevant to the assessment of dependency. It also held that no objective “yardstick” had been identified by the Minister as would support the view that the payments in question constituted an insufficient sum to amount to dependency on the applicant. It expressed the view that resources could be saved if the Minister were to draw up guidelines on what was required to establish dependency and, where such dependency was established, under what conditions family members would be permitted to join the refugee.
Decision
The High Court decided to quash the Minister’s decision by reference to the two grounds upon which the Applicant had been granted leave. The Minister had erred in concluding that inability to maintain family members in Ireland was relevant when assessing dependency and his decision that the financial transfers made by the applicant to the subjects of the application lacked a rational basis given the absence of any “yardstick” for establishing dependency.
In deciding applications for family reunification made on the basis of dependency, it is not a relevant consideration when deciding on the issue of dependency that the applicant may not be able to maintain the family members who are the subjects of the application in the State. Additionally, when considering whether or not financial transfers made by the applicant to the subjects of the application tend to show that they are dependent on him or her, it is appropriate to use some kind of “yardstick” by reference to which the likely impact of such transfers on the subjects can be measured. The lack of such a “yardstick” may mean that any refusal to accept that the transfers give rise to a situation of dependency would be set aside for want of a rational basis.
| Principles: | In deciding applications for family reunification made on the basis of dependency, it is not a relevant consideration when deciding on the issue of dependency that the applicant may not be able to maintain the family members who are the subjects of the application in the State. Additionally, when considering whether or not financial transfers made by the applicant to the subjects of the application tend to show that they are dependent on him or her, it is appropriate to use some kind of “yardstick” by reference to which the likely impact of such transfers on the subjects can be measured. The lack of such a “yardstick” may mean that any refusal to accept that the transfers give rise to a situation of dependency would be set aside for want of a rational basis. |
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