The High Court has refused an application challenging the exclusion of a refugee’s eldest daughter from a statutory family reunification process because she was over 18 when the application was lodged.
Mr Justice Barr ruled that he was bound by an earlier High Court judgment, *SH & AJ v Minister for Justice*, which had rejected the same arguments about the age limit in section 56 of the International Protection Act 2015. He also said the applicant’s failure to first seek reunification through the Minister’s non-statutory scheme was an additional reason the court would refuse relief.
The applicant, a Zimbabwean national, arrived in Ireland in November 2019 and sought international protection. She was declared a refugee in February 2022. She applied for family reunification for her three daughters on 4 March 2022. The Department said it would process applications for the two younger daughters, but not the eldest, who was 18 years and five months old when the application was made.
Section 56 allows a qualified person to apply for family members to enter and reside in Ireland. For a sponsor’s child to qualify under the provision, the child must be under 18 and unmarried on the date of the family reunification application. The applicant argued that eligibility should take account of the children’s ages when she first sought protection, because the time taken to decide her refugee application affected whether her eldest daughter had “aged out”. Her counsel argued that the rule was incompatible with EU law, constitutional equality and legal certainty, and the European Convention on Human Rights.
The respondents argued that the issues had already been decided in *SH & AJ* and that the applicant had not exhausted an alternative remedy under the Minister’s policy on non-EEA family reunification.
Mr Justice Barr said the earlier judgment had considered the same arguments in detail and that he was bound to follow it under principles of judicial comity. He adopted its reasoning, including that Irish law does not provide a self-standing right to family reunification for a family member living outside the State, and that the legislature could set the statutory eligibility date. The court did not make a fresh, independent determination of each of the applicant’s substantive legal arguments.
The judge further held that the availability of the non-statutory scheme was an additional ground for refusing relief. In his view, applying under that scheme would not have prejudiced the applicant’s position in this case, and she should have done so before the substantive hearing. He said the application was therefore premature if it was necessary to decide that issue.
The court held that the applicant was not entitled to the relief sought. It did not make the final order or decide costs at this hearing. The parties were given four weeks to submit written arguments on the terms of the final order, costs and any other matters. The case was listed for mention on 11 October 2023.