The High Court has refused a Nigerian refugee’s application to quash the refusal of family reunification with his non-marital partner, finding that he could first apply under a separate ministerial policy.
The applicant, identified in the judgment as O., challenged the Minister for Justice’s decision of 25 November 2020. The statutory scheme in section 56 of the International Protection Act 2015 covers a spouse or civil partner whose relationship existed when the sponsor applied for international protection. The Minister refused the application for O.’s partner because she was not his marital partner. His application to bring their three children to Ireland was granted.
O. argued that limiting statutory reunification to marital partners breached constitutional equality and family rights, as well as rights under the European Convention on Human Rights and EU law. He said he could not meet the policy’s income requirements. The Minister submitted that the policy allows decision-makers to waive those requirements in exceptional cases and that O. had not applied under it.
Justice Bolger held that the challenge was premature. The policy provides a route for applications by de facto partners and gives decision-makers discretion to consider cases that do not meet its requirements, including financial conditions. Any decision under that policy must respect relevant constitutional and Convention rights. O. had provided no details about his income or why he could not meet the financial requirements, the judge noted.
The judge also rejected the constitutional and Convention challenges. She said O.’s marriage to a third party remained legally undissolved, despite the Minister having separately found it to be a marriage of convenience—a finding O. disputed. The judge held that he could not use the rights of an unmarried person as the basis for his challenge, and that his relationship with his non-marital partner was not legally equivalent to marriage. She found that the State could use different statutory and non-statutory processes for marital and non-marital relationships, provided the latter process respected the rights concerned.
The court found no EU law rights were engaged and held that the applicant’s Convention rights had not been breached by denying him access to section 56 reunification. It refused certiorari, the order sought to quash the Minister’s decision. The judgment did not determine whether an application under the policy would succeed.
Justice Bolger gave an indicative view that the respondents should receive their costs, subject to further submissions. The matter was listed for mention on 18 November 2022 for submissions on costs and final orders.