HSA v Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:High Court
Nature of Proceedings:Judicial Review
Judgment Date/s:25 Mar 2011
Judge:Cooke J.
Category:Refugee Law
Keywords:Dependant, Family Reunification, Refugee, Refugee Law
Country of Origin:Somalia
URL:http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/91e50db428610cfb8025788d004a8c03?OpenDocument
Geographic Focus:Ireland

The Applicant was a Somali refugee granted asylum in Ireland in April 2008. In Somalia, he had been married with seven children. He had also cared for his mother, an adult sister and three children of his deceased brother. His wife, mother and two of his children were killed in the Somali civil war. He left Somalia in 2007 leaving his children and his niece and nephews in the care of his sister, who took them into Ethiopia. In April 2009 he applied pursuant to section 18 of the Refugee Act 1996 to have his sister, his children and his niece and nephews given permission to be reunited with him in Ireland. The application was dealt with in two parts, with the Applicants children being dealt with separately to his sister, niece and nephews. His children were granted permission to come to Ireland in June 2010. His application with respect to his sister, niece and nephews was refused on the grounds that the woman and children in question were not ‘dependent family members’ of the Applicant for the purposes of s. 18(4) of the Act of 1996.

S. 18(4) of the 1996 Act provides:
(a) The Minister may, at his or her discretion, grant permission to a dependent member of the family of a refugee to enter and reside in the State ….
(b) In paragraph (a), ‘dependent member of the family’, in relation to a refugee, means any grandparent, parent, brother, sister, child, grandchild, ward or guardian of the refugee who is dependent on the refugee or is suffering from a mental or physical disability to such extent that it is not reasonable for him or her to maintain himself or herself fully.’

The Minister found that the evidence of remittances submitted by the Applicant did not support a finding of dependency and that the Applicant would not in any case be able to support his sister, niece and nephew because of his severe ill health. The Applicant obtained the leave of the High Court to challenge the Minister’s decision by way of judicial review on the grounds that the Minister had adopted an erroneous test with respect to dependency. In its substantive hearing of the application, the Court found that the Minister’s finding that the family members in Ethiopia were not dependent was unreasonable having regard to the clear evidence of dependency before him. The Court further held that the issue of whether the Applicant could support them in Ireland was not relevant to the assessment of dependency, but that the Minister could have regard to such a consideration in deciding whether to exercise his discretion in favour of an applicant.

For these reasons, the Court quashed the decision of the Minister to refuse the Applicant’s application for family reunification and remitted it for full reconsideration.

Principles:

In determining an application under s. 18(4) of the Refugee Act 1996, the Minister must first decide whether the subjects are dependent family members as a matter of fact. Only then does the issue of discretion arise,

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