SH and AJ v Minister for Justice, Ireland and the Attorney General

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Respondent/Defendant:Minister for Justice, Ireland and the Attorney General
Court/s:High Court
Citation/s:[2022] IEHC 392
Nature of Proceedings:Judicial Review
Judgment Date/s:27 Jun 2022
Judge:Ferriter C.
Category:International protection, Refugee Law
Keywords:Charter of Fundamental Rights of the European Union, Child, Discrimination (Indirect), European Convention on Human Rights (ECHR), Family Reunification, Family Unity (Right to), Minor
Country of Origin:Syria, Somalia
URL:www.courts.ie/acc/alfresco/80e83a63-c91b-47e7-a90d-99f4a672064e/2022_IEHC_392.pdf/pdf#view=fitH

Facts: SH was a Syrian national whose wife and three children resided in Syria. SH applied for international protection in Ireland in February 2020. There were delays in processing his case, including due to COVID-19. While awaiting an interview, one of SH’s sons turned 18. SH was granted refugee status in June 2021 and subsequently made a family reunification application under section 56 of the International Protection Act 2015. The Minister refused the application in respect of SH’s two oldest children because they were over 18. SH then applied under the non-statutory scheme for non-EEA family reunification for these two children. At the date of hearing, these applications had not been determined.

AJ was a national of Somalia. He applied for international protection in Ireland in August 2019. On 11 November 2020 he received a formal declaration of refugee status and on 15 December 2020, he received an Irish residency permit. On 2 January 2021, his son turned 18. On 29 January 2021, AJ made an application for family reunification, which was refused for his son who was over 18. A review upheld the initial decision. AJ then made an application under the non-EEA family reunification scheme for his son. He had received a first-instance decision refusing this application, and at the time of the hearing, the review requested by AJ was still pending.

Reasoning: Both SH and AJ maintained that that the excessive delay experienced in relation to their international protection applications meant they could not apply for family reunification for their sons under s 56 of the 2015 Act. Ferriter J. accepted that the applicants were entitled to a prompt determination, however, the process was clearly severely impeded on an exceptional basis by the COVID-19 pandemic. The IPO could therefore not be blamed for the delay. Ferriter J. nonetheless accepted that it was not fair that the applicants were left to bear all consequences for the delay.

With regard to the review of the s 56 decision requested by AJ, Ferriter J did not agree with the applicant’s contention that the review decision was unlawful and that the Minister could exercise discretion. Ferriter J. stated that an objective reading of the review decision letter was that the Minister was referring to any discretion under s.56 to alter the definition of family member at the date of the family reunification application or to accept applications under section 56 for persons who fall outside of the definition, and not, as contended by the applicant, to her executive discretion more generally.

Ferriter J. then assessed the compatibility of the age restrictions in s 56(9)(d) of the 2015 Act with the Constitution, EU law and the ECHR. As regards EU law, Ferriter J. recalled that Article 18 of the Charter does not create a right to family reunification and there is no EU law right to family reunification from the date of an application for international protection. The provisions of the Qualification Directive 2004/83/EC on family reunification do not apply and Ireland does not participate in the recast of this Directive, nor in the Family Reunification Directive. The terms of s 56 of the 2015 Act were held to be a matter of policy choice by the legislature and not in breach of EU law. Ferriter J. further found that s.56(9)(d) of the 2015 Act was not repugnant to the Constitution or contrary to ECHR, with particular reference to A, S, S & I v. Minister for Justice ([2020] IESC 70). He held that there was no difference in treatment of the applicants as compared to other declared refugees and that the appropriate comparator would be to look at the date at which they were granted status, not prior.

With regard to the Non-EEA Policy Document, both applicants contended that the scheme failed to adequately vindicate their rights. Ferriter J. accepted that a permission granted under the scheme does not grant the same level of rights as those under s. 56 of the 2015 Act, however, it provides a route for family reunification. For AJ, who had received an initial refusal to grant family reunification to his son under the scheme, Ferriter J. recognised that the decision was not under challenge, but that there was a failure to engage with the direct evidence submitted by AJ’s son as regards his fears in Somalia. The decision also referred to insufficient documentation to evidence their relationship. However, Ferriter J. pointed out that it was not clear how such documentation would be obtained given that AJ had to flee Somalia due to murder attempts and a well-founded fear of persecution and his son had to frequently leave their home due to fear of persecution. The fact that SH and AJ may have missed out on a statutory right to family reunification as a result of significant delays in processing their application for international protection due to the COVID-19 pandemic was a matter to which appropriate weight must be given by the Minister in assessing SH’s pending application and in the review of AJ’s refusal decision.

With regard to the policy document for the Non-EEA Family Reunification Scheme, Ferriter J. opined that it would not be appropriate to consider striking down the policy document as a whole but recognised that situations could arise where it would not be proportionate for an applicant facing very difficult humanitarian circumstances to wait twelve months or more for a decision under the scheme. Commenting obiter, Ferriter J. saw the policy document as an exemplification of the executive discretion enjoyed by the Minister and that a fast-track procedure and detailed guidelines would be preferrable.

Finally, AJ submitted that he was not aware of the fact that submitting his application weeks after his son turned 18 would exclude him from the family reunification application. Ferriter J. found that the State acted in breach of AJ’s right under Article 22 of the Qualification Directive 2004/83/EC in that it failed to give him information in a language he could reasonably be believed to understand, specifically the criteria and cut-off dates for family reunification purposes in Somali. This was found to have a direct causal link to AJ not claiming family reunification prior to his son’s birthday.  AJ was found to have a right to Francovich damages for non-transposition of Article 22 of the Qualification Directive.

Decision: SH’s application for relief was refused. While the majority of AJ’s application was refused, it was found that there was a failure to correctly transpose  Article 22 of the Qualification Directive and AJ had a claim for Francovich damages.

Principles:The delays experienced during the COVID-19 pandemic were exceptional and not unreasonable delays for processing an international protection application. The scope of the definition of family members eligible for family reunification under section 56 of the International Protection Act 2015 was a matter of policy choice by the legislature and not in breach of EU law, nor was it repugnant to the Constitution or the ECHR. Failure to inform a beneficiary of international protection of their right to family reunification promptly and in a language they can likely understand is in violation of Article 22 of the Qualification Directive 2004/83/EC
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