N.S. v The Minister for Justice & Ors (Approved)

In relation to the substantive arguments that had been raised on behalf of the applicant, it was submitted that all of these had been conclusively decided by Ferriter J. in the SH case. In particular, it was noted that he had found that a declaration of refugee status, did not have retrospective effect as regards the benefits conferred by law from the date of such declaration, including the right to family reunification conferred by s.56 of the 2015 Act.

It was submitted that it had been conclusively held in the SH case that the declaratory nature of refugee status, did not mean that the benefits and entitlements conferred on a person who has been granted such status, can automatically be applied in a retrospective manner. The court had found in the SH case that the Oireachtas was entitled to determine the benefits and entitlements to be provided to beneficiaries of refugee status; and crucially, to decide at what point, said benefits and entitlements were to be conferred.

It was submitted that the Oireachtas was entitled to decide when an applicant may seek to enforce the benefits and entitlements which had been conferred upon them as a result of a declaration of refugee status; and from what point such benefits were deemed to be applicable. It had been found that in conferring the right to apply for family reunification on a person who has obtained refugee status and making the operable date, the date on which the application for family reunification had been made, it had been held in the SH case, that that was a legitimate exercise of legislative power by the Oireachtas, that it was not in breach of either EU law, or the Constitution. It was submitted that that finding was binding in the present case.

It was submitted that the provisions of s.56(9)(d) in relation to when a person would be deemed to be a “member” of the refugee’s family; inter alia , by being a child under the age of 18 years at the date of lodgement of the application for family reunification; did not offend against the principle of legal certainty. It was submitted that it was very clear in its terms, which children would come within that definition.

It was submitted that it had already been found that the provisions of s.56 in relation to the treatment of applicants and which of their children would come within the definition of member of the family, as provided for in s.56, had already been determined as not offending against the principle of equal treatment, or being otherwise repugnant to the Constitution.

In relation to the allegation that s.56(9) of the 2015 Act, was contrary to Art. 18 of the European Charter of Fundamental Rights, which recognised the right to asylum as a fundamental right; while it was accepted that asylum was a fundamental right under EU law; Art. 18 did not explicitly or impliedly provide for a right to family reunification, as found by Ferriter J. in the SH case. In addition, it was submitted that Bolger J. had held in O v. Minister for Justice [2022] IEHC 617 , that no EU law rights were engaged in the application of s.56 and that as a result, the Charter was not applicable.

Insofar as the applicant had referred to Recital 14 of the Qualification Directive, that related to family reunification rights for family members who were present in the relevant Member State with the declared refugee. In circumstances where the applicant’s children were at all material times, living outside the State, it was submitted that the applicant could not seek to rely on that Directive. Insofar as the applicant had referred to the Family Reunification Directive, it was submitted that the decision-maker was not bound by that Directive, and as a result, reference to it could not avail the applicant. It was submitted that that point had already been considered and rejected by Ferriter J. in the SH case.

Insofar as it had been argued that s.56(9) of the 2015 Act, was contrary to Arts. 8 and 14 of the ECHR, it was submitted that that had been considered and dealt with in the SH case, where Ferriter J. had relied on the decision in the A,SS & I case, where it had been held that the provisions of s.56(8) of the 2015 Act applied without distinction to all declared refugees. There was no difference of treatment between various categories of declared refugees. It was submitted that the same determination had been made by Ferriter J. at para. 135 of his judgment. In particular, it was pointed out that the applicant could not point to any difference in treatment between her and any other person, who had applied for family reunification on the same day as she had done.

Finally, counsel submitted that the subsequent decision that had been referred to by the applicant, being the AB case, was not relevant as that judgment concerned what it meant to be an “applicant” for the purposes of the 2015 Act and whether there should be a broad interpretation of that provision in the Act. It was submitted that that case was not relevant to the within application. It was submitted that having regard to the comprehensive nature of the decision in the SH case and the fact that it covered all the arguments that had been raised on behalf of the applicant in this application, the court should follow that decision and refuse all of the reliefs sought by the applicant in her notice of motion.

It is well settled at law, that a judge at one level in the hierarchy of the court system, should follow a judgment given by another judge at the same level, unless there are good reasons for the second judge departing from the judgment given by the first judge. These principles, while recognised for a considerable period, were set down by Clarke J. (then sitting as a judge of the High Court) in Hughes v. Worldport [2005] IEHC 189 , where he stated as follows:

These principles, which have become known as the Worldport principles, have been consistently applied in subsequent cases: see Kadri v. Governor of Wheatfield Prison [2012] IESC 27 (per Clarke J. at paras. 2.1-2.3); A, SS & I & Ors. v. Minister for Justice & Equality [2020] IESC 70 (per Dunne J. at para. 63; Charleton J. at para. 8); A, SS & I v. Minister for Justice & Equality [2021] 3 IR 140 (per Charleton J. at para. 152).

The issues which arise for determination on this application and the arguments put forward on behalf of the parties in respect of those issues, were all canvassed before the court and were determined in the judgment of Ferriter J. in the SH case. Having read that judgment, the court is satisfied that Ferriter J. gave detailed consideration to all the arguments put before him. This Court respectfully adopts the reasoning and conclusions set out by Ferriter J. in his judgment in the SH case.

Relying on the decision in the A, SS & I case, Ferriter J. found that there was no self-standing constitutional, ECHR or EU law right to family reunification for a member of a beneficiary’s family, who resides outside the State, whether at the date of the beneficiary’s application for international protection, the date of the beneficiary’s declaration as a refugee, or otherwise.

In considering the arguments put forward on behalf of the applicant in that case, which arguments were also repeated in the present case, that the provisions of s.56 of the 2015 Act, breached the provisions of EU law, Ferriter J. found as follows at para. 114:

Ferriter J. went on to come to the following conclusions at paras. 128 and 129:

In the absence of a self-standing right to family reunification from the date of an application for international protection, it was open to the Oireachtas to choose as a matter of policy those children of beneficiaries of international protection status who would be conferred with the right to family reunification. The law is replete with examples of a differentiation in treatment (in respect of the conferral of benefits) as between persons who have been recognised as having refugee status, and those who have made applications for international protection but who have not yet been declared to be refugees. Accordingly, there is on the face of it an objective justification for the Oireachtas choosing to confer the benefit of family reunification on those children who were under eighteen at the date of applying for family reunification but not conferring such a benefit on children who were adults at that date. The selection of that date as the “cut-off” for conferral of a benefit as a declared refugee's children seems to me to be within the margin of appreciation afforded to the Oireachtas in considering how rights such as a right to respect for family life should have been vindicated. ”

Ferriter J. went on to hold that all declared refugees are treated equally as of the date of their family reunification applications. There was no difference of treatment within that class. He noted that while there would always be cases that would fall just outside the cut-off dates or time limits imposed, such as to create what might be perceived as a harsh result for persons in that category, he held that it did not follow that the provision was unconstitutional, or in breach of the ECHR.

Ferriter J. also found that the decisions in BK (A Minor) v. Minister for Justice [2011] IEHC 526 and Michael (A Minor) & Ors. v. Minister for Social Protection [2019] IESC 82 , were consistent with the principle that a declaration of refugee status did not have retrospective effect, as regards the benefits conferred by law from the date of such declaration, including the benefit of the right to family reunification conferred by s.56.

The court is satisfied that, having regard to the comprehensive nature of the judgment given in the SH case, this Court is bound to follow that judgment in terms of its findings and the consequences that flow from them.

In relation to the issue of the existence of an alternative remedy under the non-statutory scheme, while Ferriter J. noted the existence of such alternative remedy and indeed, noted that due to the delay that had occurred in that case, SH may have a strong case to make under that scheme; he did not specifically hold that the existence of such an alternative remedy was a bar to the granting of relief in the case before him.

While not departing from the analysis of Ferriter J. in that regard, I would be inclined to go further, and hold that the existence of such an alternative is an additional ground on which the court would refuse the reliefs sought by the applicant in her notice of motion. The court is satisfied that bringing an application for reunification with her adult child pursuant to the non-statutory scheme, would not have prejudiced the applicant’s position in respect of this application. Therefore, she should have brought that application prior to proceeding with the substantive hearing of her application herein. Thus, if it were necessary to do so, the court would hold that the applicant’s application herein is premature.

However, as the court holds itself bound by the decision in the SH case , the court has determined that the applicant is not entitled to the reliefs sought in her notice of motion, for the reasons set out in the SH judgment.

As this judgment is being delivered electronically, the parties shall have four weeks within which to furnish brief written submissions on the terms of the final order and on costs and on any other matters that may arise.

The matter will be listed for mention at 10.30 hours on 11 th October 2023 for the purpose of making final orders.