FB v Minister for Justice and Equality

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Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2014] IEHC 427
Nature of Proceedings:Judicial Review
Judgment Date/s:05 Sep 2014
Judge:Barr J.
Category:Refugee Law, Residence
Keywords:Dependant, Family Reunification, Refugee, Residence
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/bf1d07a3-4778-4602-9396-1f1df5807ca4/2014_IEHC_427_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicant was an elderly Nigerian national who had been granted refugee status in Ireland. She applied for family reunification with two alleged granddaughters who were said to have been dependent on her in Nigeria, pursuant to s. 18(4) of the Refugee Act 1996. She claimed that she had left them in the care of an individual when she left to seek asylum in the State, and that the person concerned could no longer care for them. In support of her application, she submitted details of financial transfers from her to the granddaughters.

The Refugee Applications Commissioner prepared a report prepared on foot of the application which had identified a number of inconsistencies in her case. However, in refusing her application, the Minister for Justice did not rely upon those inconsistencies, and proceeded instead on the matter of dependency, holding that the evidence did not show that the grandchildren were financially dependent on the applicant, as she had alleged.

The applicant challenged the decision by way of judicial review, complaining that there had been inadequate inconsideration of the sums of money remitted by her to the grandchildren and to the fact that she had made arrangements in the past for their continuing care and accommodation in Nigeria. The Minister contended that the sum remitted, €144 in total over a lengthy period, was too low to be regarded as assistance upon which they could be dependent.

Reasoning:
The High Court (McDermott J.) quashed the decision. It was not satisfied that the Minister had applied the appropriate test in respect of “dependency” to the relationship between the applicant and her granddaughters, either in respect of the issue of financial dependency or the wider dependency based on their relationship with her since infancy, which it considered also needed to be taken into account. Insofar as the financial contributions were concerned, it noted that the only yardstick taken into account by the Minister was that of per capita income in Nigeria for a particular year. There was no meaningful inquiry as to the costs of maintaining and educating children in Nigeria, nor as to how much support had been provided by their carer in Nigeria before its alleged withdrawal. It considered that the circumstances in which they might find themselves following its withdrawal, including if they were without accommodation, would have to be relevant to the question of whether or not the very low payments made by their grandmother, who was herself quite poor, were capable of making a valuable contribution to their subsistence.

The court also noted that there had not been any consideration of the rights of the applicant or her granddaughters as a family under article 8 of the European Convention on Human Rights. It considered that to be an error of law.

Decision:
Accordingly, it quashed the Minister’s decision.

Principles:

In assessing whether a person is dependent on an applicant for family reunification pursuant to s. 18(4) of the Refugee Act 1996, regard must not be had solely to considerations of financial dependence.

Where financial dependence is considered, it will not necessarily be sufficient to consider the average income in the subject of the application’s country of origin with a view to determining the extent to which remittances from the applicant give rise to dependence. Financial burdens on the subject, and the extent to which they are alleviated by the remittances, also need to be considered.

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