The High Court has ordered that the restriction in section 56(9)(a) of the International Protection Act 2015 limiting a sponsor’s spouse to someone married before the sponsor applied for international protection be removed.
Mr Justice Max Barrett made the order on 29 July 2019 in two judicial review proceedings. It followed the court’s principal judgment, which had held that excluding “post-flight” marriages from the right to family reunification was unconstitutional. This judgment addressed the form of the remedy, rather than reconsidering that earlier ruling.
The applicants proposed a declaration that section 56(9)(a) was repugnant to the Constitution insofar as it confined “sponsor’s spouse” to a spouse whose marriage was subsisting when the sponsor applied for protection. The respondents objected, arguing that the proposed wording would usurp the Oireachtas’s legislative role.
The court considered whether it could sever the unconstitutional restriction while leaving the rest of the provision in place. It concluded that removing the restriction would leave the provision sensible and operable, while preserving the Oireachtas’s stated intention to allow spousal reunification. Striking down all of section 56(9)(a), the judge said, would instead remove that right entirely.
The declaration does not prevent the Minister from investigating applications under section 56(2) or refusing them under section 56(7), where refusal is considered necessary on national security or public policy grounds. The principal judgment had also noted the Minister’s ability to consider concerns such as marriages of convenience and human trafficking.
The court granted the declaration in the form sought by the applicants. The judgment determines the constitutional remedy and preserves the stated statutory powers; it does not itself decide any individual reunification application.