A, S and I v Minister for Justice

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Respondent/Defendant:Minister for Justice
Court/s:Supreme Court
Citation/s:[2020] IESC 70
Nature of Proceedings:Judicial review/appeal
Judgment Date/s:08 Dec 2020
Judge:Dunne E
Category:Refugee Law
Keywords:Child (Separated), Family (Nuclear), Family Unity (Right to), Protection (International), Refugee
Country of Origin:Afghanistan, Iraq, Nigeria
URL:https://www.courts.ie/acc/alfresco/d0eae3ec-52c2-41af-8f01-f97a34a2d5ab/2020_IESC_70_Dunne%20J.pdf/pdf#view=fitH

Facts: The first and second applicants were recognised refugees whose applications for family reunification with their wives were refused on the basis that their marriages took place after they had applied for international protection. They challenged the constitutionality and/or ECHR compatibility of section 56(9)(a) of the International Protection Act 2015 (which limits the right of family reunification to spouses where the marriage took place prior to the application for international protection). The High Court ([2019] IEHC 547) held that section 56(9)(a) of the 2015 Act was unconstitutional. The Minister was granted leave to appeal this decision to the Supreme Court.
The third named applicant was a child who was recognised as a refugee. Her application for family reunification with her parents was refused on the basis that she had submitted the application more than 12 months after she had been granted refugee status. The applicant challenged the constitutionality and/or ECHR compatibility of section 56(8) of the 2015 Act (which imposes a 12 month time limit from the grant of international protection for submission of applications for family reunification). The High Court ([2019] IEHC 729) dismissed the application. The applicant was granted leave to appeal this decision to the Supreme Court.
The appeals in A, S and I were heard together by the Supreme Court and a single judgment delivered in respect of the appeals.

Decision: In relation to the A and S appeals, the Supreme Court held that that High Court (Barrett J) had erred in declining to follow the decision of Humphreys J in RC (Afghanistan) v Minister for Justice [2019] IEHC 65, instead preferring to apply the decision of the European Court of Human Rights in Hode and Abdi v United Kingdom [2009] ECHR 945. Dunne J held that the difference in treatment between persons who were married prior to submitting their application for international protection, and those who married after submitted such applications, was “legitimate and … proportionate having regard to the need to provide for family reunification on the one hand and the need to have regard to immigration control on the other hand.” Dunne J also distinguished Hode and Abdi, in part on the basis that the applicants in A and S could submit applications for visas under the general Ministerial discretion.
In relation to the I case, the Supreme Court upheld the High Court decision rejecting the challenge to the constitutionality of the 12 month time limit in section 56(8) of the 2015 Act. Dunne J held that there was no unlawful discrimination on the basis that the 12 month time limit applied to all beneficiaries of international protection, commenting that “the fact that the legislation may be viewed as harsh when viewed through the prism of its application to minors, it is at the end of the day a matter of policy for the legislature and is not an issue for the courts.” The Supreme Court also rejected the challenge to the ECHR compatibility of section 56(8), on the basis that the appellant’s complaint did not fall within the “other status” ground in Article 14 of the Convention.

Principles:The limitation of the right to family reunification to spouses whose marriages took place prior to submission of an application for international protection was neither unconstitutional nor in breach of the ECHR. The absolute 12 month time limit for submission of an application for family reunification was neither unconstitutional nor in breach of the ECHR.
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