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Family Reunification of Spouses (s. 56(9) of the International Protection Act 2015

A v The Minister for Justice & Equality, Attorney General and Ireland and IHREC (Notice Party) (High Court, Barrett J, 17 July 2019)

Judgment of Judge Barrett delivered on 17th July 2019:

This judgment found Section 56 (9) (a) of the International Protection Act 2015 to be unconstitutional.

The provision provides that a marriage must be subsisting at the time that an applicant applies for international protection in order to be eligible to apply for family reunification with their spouse.  In other words, a person who marries after being granted international protection is barred from applying for family reunification in respect of his or her spouse.

Mr A is a national of Afghanistan who applied for asylum in Ireland. He was granted refugee status in 2015, and in 2017 he married his wife in Pakistan. He then applied for family reunification in respect of his wife pursuant to s. 56 the 2015 Act, but the Minister refused to accept his application s. 56(9)(a) of the 2015 Act, that is, because the marriage was not subsisisting at the time that he applied for international protection.

Mr A challenged the Minister’s decision on the basis that such rule was contrary to Article 40.1 of the Constitution (equality before the law), Article 40.3 of the Constitution (the right to marry) and Article 41 of the Constitution (the State’s obligations to protect the family and the institution of marriage).

Mr A also complained that s. 56(9) was in breach of the State’s obligations under Articles 8 (right to the protection of private and family life) and 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR).

The Minister raised a preliminary objection in by arguing that Mr A’s judicial review action was premature as he could still make an application under a non-statutory discretionary reunification regime that the Minister has separately established outside of the 2015 Act, namely the INIS Policy Document for Non-EEA Family Reunification (December 2016). In this respect, Judge Barrett held that this argument was “… the ‘reddest of red herrings’; it but distracts from the true issues at play.”

Judge Barrett concluded that S.56 (9)(a) is in fact unconstitutional.

In relation to the substance of his claim, Mr A argued, inter alia, that:

  • He was a member of a marital family within the meaning of Article 41 of the Irish Constitution, yet for the purposes of s.56 (9)(a) his wife was (unlawfully) not treated as a member of his family;
  • Thanks for s.56(9)(a), his marriage was (unlawfully) treated less favourably than, inter alia, refugees who married before applying for international protection;
  • Although the court was offered reasons by the Minister for treating differently a marriage made pre-/post- application for refugee status, the reasons were generalised, unsupported by objective empirical evidence and seemed to be informed by a mistaken sense that all refugees apply for international protection when they arrive in Ireland (when in fact they do not always apply); and
  • The difference in treatment of Mr A’s marriage was unconstitutional in that it failed to treat Mr A as equal before the law to, inter alia, the other refugees referred to in (ii) and/or failed “to guard with special care the institution of Marriage” in breach of Article 41.3.1. of the Constitution.

Judge Barrett concluded on the constitutionality issue that Mr A had pointed convincingly to what he claims is unconstitutional treatment of him and his marriage, whereas the rationales offered by the Respondent Minister in support of the constitutionality of S.56(9)(1) failed (namely, that the provision was aimed at facilitating reunification of spouses who had been forcibly separated; that it facilitates speedy family reunification; to control/prevent marriages of convenience; and to comply with the State’s international obligations).

Looking at ECHR dimension of proceedings, the Judge declined to follow the judgment which was delivered by the High Court in January 2019 in RC v MJE [2019] IEHC 65. In the RC judgment, the judge had declined to follow the decision the European Court of Human Rights in Hode and Abdi v the United Kingdom [2013] 56 EHRR 27. Judge Barrett in his decision was mindful of the binding appellate court precedent in D.P.P. v O’Brien [2010] IECCA 103. Judge Barrett found, as per O’Brien, the court is bound to follow the decision of the European Court of Human Rights in Hode and Abdi. Judge Barrett found that the Respondents’ response in this case flounders in the face of Hode and Abdi and held that S.56(9)(a) is incompatible with the European Convention of Human Rights.

The High Court concluded by granting: a declaration that S.56(9)(a) of the 2015 Act is repugnant to the provisions of the Constitution, an order of certioirari quashing the Minister’s decision refusing Mr A’s application for family reunification, and further noted that, had the court not made its finding of unconstitutionality, it would have granted a declaration pursuant to s.5 of the European Convention of Human Rights Act 2003 that s.56 (9)(a) is incompatible with the State’s obligations under Article 14 of the European Convention of Human Rights (prohibition of discrimination) read in conjunction with Article 8 of the European Convention on Human Rights (right to protection of private and family life).

The judgment may be appealed to the Court of Appeal or to the Supreme Court.