The Court of Appeal has dismissed a Zimbabwean refugee’s challenge to the refusal to process her family reunification application for her eldest daughter, who had turned 18 before the application was made.
The judgment, delivered by Ms Justice Butler on 30 July 2024, found that section 56(9)(d) of the International Protection Act 2015 was not in breach of EU law, the Constitution or the European Convention on Human Rights. The provision treats a child as eligible for family reunification only if they are under 18 and unmarried on the date the application is made.
The appellant arrived in Ireland in November 2019 and applied for international protection that day. She received a refugee declaration on 2 February 2022 and applied for family reunification for her three children on 4 March 2022. The Minister declined to process the application for her eldest child, who had turned 18 in October 2021. The court said an incorrect date of birth supplied for the daughter during the protection process meant officials could not have known she might age out of the statutory scheme.
The mother argued that her daughter’s age should have been assessed when she applied for asylum, when the daughter was still a minor. She said the later date made eligibility depend on how quickly the State processed her protection claim. The court rejected that argument. It held that the EU judgments relied on by the appellant concerned a directive Ireland had not joined, and that the Qualification Directive did not itself establish a right to bring family members from abroad.
On the constitutional claim, the court said the Oireachtas could set eligibility limits and that choosing the family reunification application date was not irrational or arbitrary. It also rejected the ECHR challenge, finding that the statutory scheme’s exclusion of an adult child did not establish an impermissible interference with family life or discrimination.
The court did not find that the mother had to pursue another route before bringing her challenge. It noted that she could apply under the Minister’s policy for a visa for her adult daughter, including asking the Minister to exercise discretion in exceptional circumstances. The court could not assess that application’s prospects because the daughter’s circumstances were not before it. The statutory application’s dismissal therefore did not decide whether a discretionary visa should be granted.
The appeal was dismissed. The court said the respondents should receive the costs of the appeal, subject to the appellant notifying the court office by 10 September 2024 if she wished to argue for a different order.