The Applicant arrived in Ireland as an
unaccompanied minor seeking asylum from Somalia. He was declared a refugee on
19th October 2007. This case concerned his application for family
reunification with his Mother and four siblings under s.18 (4) of the Refugee
Act 1996. The application was refused on
the basis that he had failed to establish that his family were ‘dependent’ on
him in the narrow sense of being financially dependent, as it was held the
financial support being provided by the applicant did not sufficiently meet the
requirements of s. 18 (4).
The Court considered that the Minister
must identify ‘some objective yardstick
by which dependency can be assessed’. It is inadequate to speculate such a
standard in relation to Irish norms. As held in the recent judgment of Ducale
& v. The Minister [2013] IEHC 25, ‘financial
dependency must be seen as a flexible state of affairs’, of which ‘much must depend on what the contribution
provides when received in the hands of the recipient.’ Therefore the Commissioner
must endeavour to obtain objective information in order to set out a rational
basis for such a finding; no such endeavours were noted in Ducale or the present case.
This decision by Clarke J relies on the
decisions of Hogan J in R.X. & Others
v. The Minister [2010] IEHC 466, and Cooke J in Hassan Sheikh Ali v. The Minister [2011] IEHC 115, citing that the
second most common reason for refusal by the FRU section, that is the refugee’s
personal circumstances and prospects in Ireland are such that he/she cannot
maintain family members in the State, is in fact an invalid consideration in
relation to the assessment of dependency (though potentially relevant to the
exercise of discretion should dependency be established).
Clarke J in her conclusion affirmed the
need for guidelines in relation to this criterion to be outlined, in order to
provide clarity and transparency within the currently ambiguous family
reunification process. In her conclusion she held:
‘It is
not for this Court to set down guidelines as to the exercise of Ministerial
discretion under s. 18(4) but a system must, sooner rather than later, stop the
haemorrhage of scarce resources in defending flawed FRU decisions and instead
ensure that vulnerable refugees do not endlessly pursue futile applications,
thus depleting their own financial and emotion reserves. If refugees were
better informed on what constitutes dependency and that conditions are de facto
applied to family reunification applications, their attentions might be better
directed towards obtaining language skills, training, qualifications, work
experience and ultimately employment in Ireland before applying again for
family reunification.’ [paragraph 28]
From this decision, Ms Justice Clarke
makes her opinion clear that:
· The
Office of the Refugee Applications Commissioner must attempt to investigate
such cases more thoroughly, in order to provide the Court with a rational basis
for a finding such as in the case at hand, entail that the ‘dependency’ is not
of an adequate standard to satisfy s. 18 (4).
· A
system needs to be adopted to provide a level of guidance in respect to such
applications.
We would submit that many of the
Minister’s decisions to refuse family reunification to refugees under Section
18 (4) of the Refugee Act 1996 are flawed, as most turn on the point of
dependency. If the Minister does not set down clear guidelines as to what
constitutes dependency, applicants are denied a fair procedure and effective
remedy. It is of great concern to our office to see the inconsistent decisions
made in respect of our client’s applications under Section 18 (4). We call on
the Minister to follow through on Ms Justice Clarke’s recommendations, and
provide a clear and transparent determination process for refugee family
reunification applicants.
Brophy Solicitors
26.02.13
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