The High Court has declared unconstitutional a rule that limited refugee family reunification to spouses whose marriage was already subsisting when the refugee applied for international protection. It also ordered the Minister’s refusal decisions quashed in two joined cases.
In a judgment delivered on 17 July 2019, Mr Justice Max Barrett considered challenges to section 56(9)(a) of the International Protection Act 2015. The section defined a sponsor’s spouse as a family member only if the marriage was subsisting on the date the sponsor applied for international protection.
In the A case, the applicant was an Afghan national who arrived in Ireland in July 2015 and was granted refugee status. He married his second cousin, a Pakistani national, in Pakistan on 3 April 2017 and applied for family reunification on 19 April. The Minister refused the application, relying on the timing condition. The judgment records that the Minister had correctly applied the section.
The Minister argued that the challenge was premature because a separate discretionary reunification scheme was available. The court rejected that submission as an answer to the challenge to the statute. It also rejected four reasons advanced by the Minister for the timing rule, finding they did not justify the different treatment of refugees in comparable situations.
The judge concluded that section 56(9)(a) was repugnant to the Constitution. He also found that the rule was incompatible with the European Convention on Human Rights, applying the European Court of Human Rights’ decision in Hode and Abdi. Because he had found the provision unconstitutional, he said he would have granted a declaration of incompatibility under the European Convention on Human Rights Act 2003 only if he had not reached that constitutional conclusion.
The court granted a declaration that section 56(9)(a) was repugnant to the Constitution and an order of certiorari quashing the Minister’s decision notified by letter dated 14 September 2018 in the A case. The judgment also describes a second joined case brought by S and S: a refugee married an Afghan national resident outside Ireland, and the Minister refused their reunification application under the same section. The court said the same relief granted to Mr A would also be granted in the S case.
The judgment confined its decision to the validity of section 56(9)(a); it noted that the Oireachtas was entitled to change the law from the earlier statutory regime. It did not order that either spouse be granted permission to enter or reside in Ireland.