Update on the rights of residency of dependant parents

POSITIVE DECISION ON RESIDENCY RIGHTS OF PARENTS OF ADULT IRISH CITIZENS

We were very happy to obtain a (very!) positive decision from Mr Justice Hogan in respect of a case we had taken challenging the Minster for Justice’s refusal to grant permission to reside for the dependant elderly parents of an Irish citizen. The hearing was for leave to apply for Judicial Review, and the fact that this case ran for three days reflects the complexity and novel nature of the legal submissions being made.

The argument submitted by the Minister was that the no right existed for adult Irish citizens to have their dependant parents reside with them in the State, and any infringement of family rights was reasonable, proportionate and properly within the Minister’s discretion.  A central point in the case thus became whether the circumstances of the Applicants, as Irish citizens applying for their dependant parents to reside with themin in the State, triggered the protections of Article 41 of the Constitution.

  “1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

  2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.”

Mr Justice Hogan clearly confirmed that the rights of Irish citizen adults to the company of their dependant parents does engage Article 41 of the Irish Constitution. He stated that the decision to care for elderly parents clearly engages the “moral nature of the family as an institution”. This is an important legal point, and one which had not been previously confirmed by the Irish Courts.

Mr Justice Hogan made some further very important findings in his judgement – he has re  defined the concept of financial dependency, which in the case of TM v Minister for Justice was held to mean "essential support". Mr Justice Hogan instead held that to financial support which is "appreciable and significant in the context of the recipients" is sufficient to amount to dependency.

We believe that the decision recognizes some important factors in family and immigration law, and will be very relevant in many cases concerning Irish citizens seeking to be joined in the State by their family members.

See article in the Irish Times, July 1^st 2011, covering the High Court’s decision.

Karen Berkeley, Brophy Solicitors

05.07.11