The Court of Appeal has allowed the Minister for Justice and Equality’s appeal over a refused family reunification application for E.S., setting aside a High Court order that had quashed the refusal and dismissing the judicial review concerning her.
The judgment, delivered by Mr Justice Maurice Collins on 7 April 2020, concerned an application by F.B., an Irish citizen and former refugee, for her two granddaughters, E.L. and E.S., to enter and reside in the State under section 18(4) of the Refugee Act 1996. The Minister appealed only the High Court’s decision concerning E.S. The separate order concerning E.L. was not appealed; the Court of Appeal was told that she had since been granted permission to enter and reside in Ireland.
The 1996 Act required the claimed family relationship and dependency to be established before the Minister’s discretion to grant permission arose. The application for E.S. had consistently described her as F.B.’s granddaughter. DNA testing reported that no relationship had been determined between F.B. and E.S. Further testing indicated weak support for a half-sibling relationship between E.S. and E.L., or a more distant relationship. The Minister accepted E.L. as F.B.’s granddaughter and dependent, but refused E.S.’s application because the claimed relationship had not been established.
The High Court had quashed that refusal, reasoning that the Minister should have considered the wider family relationship and whether E.S. could be treated as F.B.’s ward. The appeal court held that this was not a ground properly before the High Court. The judicial review papers did not specifically claim that the Minister should assess E.S. on a basis other than the asserted grandparent-grandchild relationship, and that alternative case had not been advanced at the High Court hearing. No application had been made to amend the grounds.
The Court of Appeal also considered the substance of the High Court’s criticism. It held that the Minister was entitled, on the material available, to conclude that the asserted biological relationship had not been established. The court said the Minister was not obliged in these circumstances to look for a different qualifying relationship when F.B. had continued to assert that E.S. was her granddaughter and had offered no alternative account of their connection. Family reunification policy and rights relating to family life could not bypass the statutory requirement to establish a qualifying family relationship.
The court allowed the appeal, set aside the High Court order concerning E.S. and dismissed the judicial review in relation to her application. It did not determine whether any lack of candour by F.B. would justify refusing relief. The judgment noted that E.S. could apply under the Immigration Act 2004 and that her apparent half-sibling relationship with E.L., who was then living in Ireland, would be a consideration for the Minister.