Ireland: Supreme Court rules family reunification provisions not unconstitutional

Tuesday, December 8, 2020

On 8 December 2020, the Supreme Court of Ireland published its judgment concerning the constitutionality and compatibility with the ECHR of certain family reunification provisions, namely s.56(8) and s.56(9), of the International Protection Act 2015 (‘the 2015 Act’).

The judgment concerns three appeals that were heard together. The first two cases concerned the State’s appeal against the High Court’s decision in the cases of Mr. A, an Iraqi Kurdish national and Mr. S, an Afghan national, which held that s56(9) of the 2015 Act unlawfully discriminated against marriages of refugees that took place after they sought international protection. The third case concerned Ms. I’s appeal against the High Court’s decision to reject her challenge to the constitutionality of s.56(8) of the 2015 Act which permits beneficiaries of international protection a maximum of 12 months to make an application for family reunification, after securing international protection.

In relation to the first two cases, Justice Dunne of the Supreme Court referred to the reasoning set out in R.C. (Afghanistan) v. Minister for Justice and Equality and Ors [2019] IEHC 65, in which the Court considered the distinction between beneficiaries of international protection who married before and after their applications, was objectively justifiable. The Court in this case considered, inter alia, the position of the marriages of refugees sur place and stated that the critical point for distinction was whether there was a relationship in being, which was “sundered by the persecution” that gave rise to the need for international protection. Agreeing with the reasoning in R.C (Afghanistan), the Court held that the distinction was legitimate and proportionate and had regard to the need to provide for family reunification on the one hand and the need to have regard to immigration control on the other. Thus, the Court found that s.56(9) was not unconstitutional. For similar reasons, the Court rejected the application of the principles set out in Hode and Abdi and dismissed the finding of incompatibility with the ECHR.

In relation to Ms. I’s appeal against the constitutionality of the 12-month time limits, the Court held that, inter alia, Ms. I was not subject to any difference in treatment by reference to any characteristic to an issue relating to equality such as age, sex gender, religion or other relevant status. It was stated that the legislation applies equally to all applicants for family reunification and thus, it was not established that s.56(8) is contrary to the Constitution. The Court dismissed her appeal.

In its conclusion, the Court noted that the door is not closed to Mr. A, Mr. S and Ms. I. It stated that it is open to them to make an application to the Minister for Justice and Equality through the Policy Document. The Court recommended that the decision be left to the discretion of the Minister to decide appropriately, based on the particular circumstances of each of the individuals concerned.

Photo: Shea, December 28, 2005, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Family reunification
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