Judgment: 2019-02-01 · Court archive

High Court refuses challenge over mother’s family reunification request

The court rejected a refugee’s judicial review after finding that her earlier application had been refused before the governing law changed, and that she had no vested right to reopen it.

The High Court · [2019] IEHC 55

Who, what, where, when and why

Who
  • V.B. (Applicant)
  • Ireland
  • David Keane (Judge)
What

The court rejected a refugee’s judicial review after finding that her earlier application had been refused before the governing law changed, and that she had no vested right to reopen it.

Where

Places mentioned in the report

  • Ireland
When

Judgment:

Other dates in the report
  • 31 December 2016

    The Refugee Act was repealed from 31 December 2016 and replaced by the International Protection Act 2015. Under the new Act, a parent is included in the definition of a refugee’s family member only where the refugee is unmarried and under 18. In May 2017, V.B. asked the immigration service to reopen her earlier case, saying she had gathered the documents. The court noted that she did not submit the questionnaire or documents with that request or later.

Why

Reasons reported in the judgment

Mr Justice David Keane held that V.B. had no vested right under the former Act to make a new application after its repeal. Her original application had already been refused in 2015, and her request to reopen or make a fresh application came after the repeal. The court said the statutory transitional provision would have preserved an application still pending on 31 December 2016, but V.B.’s application was not pending then.

The High Court has refused a judicial review brought by a refugee who challenged the refusal to reopen her request to bring her mother to Ireland.

V.B. had applied in 2014 under the Refugee Act 1996 for permission for her mother to enter and reside in Ireland as a dependent family member. The Minister refused that application in July 2015 after V.B. did not return a requested questionnaire or supporting documents, despite receiving an extension to do so.

The Refugee Act was repealed from 31 December 2016 and replaced by the International Protection Act 2015. Under the new Act, a parent is included in the definition of a refugee’s family member only where the refugee is unmarried and under 18. In May 2017, V.B. asked the immigration service to reopen her earlier case, saying she had gathered the documents. The court noted that she did not submit the questionnaire or documents with that request or later.

The immigration service replied that her mother was ineligible under the new legislation. V.B. sought judicial review of that decision, arguing, among other things, that the repeal did not remove her right to apply under the former law and that the new family-member rules breached constitutional and human-rights protections.

Mr Justice David Keane held that V.B. had no vested right under the former Act to make a new application after its repeal. Her original application had already been refused in 2015, and her request to reopen or make a fresh application came after the repeal. The court said the statutory transitional provision would have preserved an application still pending on 31 December 2016, but V.B.’s application was not pending then.

The judge also rejected the challenges to the new Act’s family-member definition. He said the Minister’s decision concerned her mother’s ineligibility under that definition, while the separate 12-month application deadline had not formed part of the decision under challenge. He concluded that the Charter of Fundamental Rights did not apply to this family reunification issue because the State was not implementing EU law in dealing with such an application.

The judgment noted that V.B.’s mother could apply for permission to enter and reside under the general immigration power, with the department’s policy allowing discretion in exceptional cases. The court did not determine such an application or direct the Minister to grant permission. It refused the judicial review.

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