The first applicant was a national of Somalia and was recognised as a refugee in the State in 2009. He applied to the Minister under Sections 18(3) and (4) of the Refugee Act 1996 for family reunification with his wife, mother and four minor siblings. All had been living in a refugee camp outside Mogadishu and, at the time of the judgment, in Addis Ababa, Ethiopia. The applicant’s daughter and one of his brothers died in a bomb attack in January 2010. The application for the applicant’s spouse was granted in 2011. The applications in respect of his mother (who had significant health difficulties) and siblings (two of whom were by then no longer minors) were refused.
The second applicant was a national of Afghanistan. He was granted refugee status in 2007. He applied for family reunification for his father who suffered from Parkinson’s disease and was living in difficult circumstances in Pakistan. The application was refused.
The Court noted the distinction between Sections 18(3) and (4) in that under Section 18(3) once the Minister is satisfied that the person is an immediate family member of a refugee, meaning a spouse or a child under 18 years, the Minister must grant permission to the person to enter and reside in the State.
However in relation to a dependent family member in Section 18(4) the Minister has a discretion whether or not to grant permission for those family members to enter and reside in the State with a refugee. A dependent family member includes a parent, brother, or sister of the refugee who is dependent on the refugee or is suffering from a mental or physical disability to the extent that it is not reasonable for them to maintain themselves fully. In relation to dependent family members the Minister must first decide if the persons are family members within the meaning of that section. Secondly, he must determine if they are dependent on the refugee and, finally, he must exercise his discretion under Section 18(4).
In the first applicant’s case, the Minister found that the persons were members of the refugee’s family, and they were dependent. The Minister in exercising his discretion however, analysed the potential earning capacity of, first, the dependents and, secondly, of the refugee. The Minister found that the refugee would be unable to support the dependent family members and they would be unable to contribute to their own support and they would be an unreasonable burden on the social welfare system of the State.
It was argued for the applicant that it was a breach of the applicants’ rights to family life under Article 8 of the European Convention on Human Rights (ECHR) and Article 41 of the Constitution of Ireland as there was no evidence that the Minister carried out the necessary balancing exercise and/or applied a proportionality test; the inference which could be drawn was that the Minister had adopted a fixed policy without any consideration of the particular circumstances of the family and if a policy had been adopted it should be published and be reasonable and rational.
Cross J. held that there was no difference between the engagement of Article 8 of the ECHR and Article 41 of the Constitution in relation to the question of proportionality of interference with the relevant rights. The question was whether there was any indication of proportionality in the refusal of family reunification on the sole ground of the inability of the refugee to financially support his dependent family members without reliance on social welfare. Part of the investigation of the family includes an assessment of the domestic circumstances of the dependent family member, not the refugee. The Minister’s decision must, per the Supreme Court decision in Meadows v Minister for Justice, disclose at least the essential rationale on foot of which the decision is taken.
Cross J. held that there was no separate consideration by the Minister of the circumstances of the different dependents, some of whom were elderly, some below the legal age to work, some suffering illness, and therefore there was no indication of any proportionality analysis in the Minister’s decision upon the refugees’ ECHR rights. Matters such as the medical status were considered but only at the stage of the consideration of identity, relationship and dependency, but in the decision only one matter was addressed and that was that the family members would become a burden on the State. He said it was difficult to conceive in the real world of very many family members of refugee not being a burden on the State at least initially. Given the respondent’s statement that it was always open to the applicant to reapply for family reunification if his financial circumstances altered or improved the Court held that the only circumstances in which the respondent foresaw the applicant being able to reopen the matter was when they would be in a position to support their dependents in the State without being a burden on the social welfare system. That indicated that the respondent had not taken into account the circumstances of the applicant and his dependents in the exercise of his discretion. There was therefore a failure to meet the test set out in Meadows. It was clear only one factor was taken into account and there was no indication that the balancing of rights was in any way proportional.
Cross J. noted that it could be said that the Minister had adopted a fixed policy and if so, he should state the policy so that it could be examined as being reasonable. He considered that it was also possible, but was unnecessary for him to determine the point, that the Minister’s decision had in effect been to adopt a “sponsorship” requirement for Section 18(4). This was not contemplated by the Act and would require a statutory amendment.