The Court of Appeal has dismissed the Minister for Justice’s appeal against an order quashing a refusal of family reunification for two children described as a Somali refugee’s niece and nephew. The court held that a Somali court’s Declaration of Responsibility was relevant to her application and that there was no evidence the Minister’s decision-maker had considered it. The children’s eligibility was not decided.
The woman, identified in the judgment as H.A., was granted refugee status in July 2019. She applied in June 2020 for permission for her husband, niece and nephew to enter and reside in Ireland under section 56 of the International Protection Act 2015. The children’s parents had died during fighting in Somalia. H.A. had submitted a declaration made by a Somali court in November 2019, after it heard two witnesses, stating that she accepted responsibility for the children and that they needed care.
The Minister refused the children’s applications, stating they did not meet the statutory definition of a family member. The refusal letter did not mention the declaration. The Minister later relied on an official’s affidavit saying the declaration had been on the decision-maker’s file, although it had been retained with the husband’s application because of a clerical error. The Court of Appeal agreed with the High Court that there was no evidence the decision-maker had actually considered it. The decision’s silence about the declaration, and an accompanying letter that did not acknowledge its receipt for the children’s application, supported that conclusion.
The court said H.A.’s application had asserted that the children were her children for the purposes of the Act despite not being her biological children, relying on the responsibility she had been granted. In light of the Supreme Court’s earlier ruling that “child of the sponsor” means a biological or adopted child, the Minister was required to consider whether the relationship could meet the statutory category of adoption. The declaration was therefore a relevant and material consideration.
The Minister argued that remitting the matter would be futile because the declaration could not qualify as an adoption recognised under Irish law. The Court of Appeal did not decide that question. It said the Minister had to show it was very clear that reconsideration could not benefit H.A. That threshold was not met: the Supreme Court had not determined the precise meaning of “adopted child” under the Interpretation Act 2005 in this context, and further evidence and submissions could be considered by the Minister.
The appeal was dismissed, leaving in place the High Court’s order of certiorari quashing the refusal and remitting the application for reconsideration. The court did not rule that the children were adopted or that they must be admitted to Ireland. It also indicated that H.A. appeared entitled to appeal costs; the Minister could seek a different costs order by contacting the Registrar within 14 days.