The High Court has found that the Minister for Justice and Equality acted unreasonably in refusing to consider a refugee’s family reunification application unless she established formal legal guardianship of her niece.
The applicant, identified as C, is described in the judgment as a refugee originally from Somalia. In a letter dated 20 August 2015, she applied under section 18(4) of the Refugee Act 1996 to reunite with her niece, relying on her guardianship of the child. The judgment says C intended to rely on a looser, de facto form of guardianship, of the kind discussed in an earlier case, Ducale v Minister for Justice and Equality.
The Minister replied on 2 September 2015 that the application would not be accepted until original guardianship papers were submitted with a new application letter. The judgment notes that C’s original letter had not mentioned guardianship papers. It says the Minister treated the application as requiring formal, legally determined guardianship, while C sought to proceed on a less formal basis.
On 14 September 2018, the Minister refused the application because C had not established legal guardianship. The High Court held that the Minister had effectively prevented her from advancing the basis on which she had applied, due to a mistaken understanding of the law. It found the requirement to confine the application to formal guardianship unreasonable, and consequently found the final refusal unreasonable as well.
The court said that reaching a different conclusion would endorse a basic procedural unfairness. It granted the reliefs sought at items 1 and 2 of the originating notice of motion. The judgment does not specify those reliefs in the supplied text, so the precise terms of the order cannot be stated from this source.