Friday, November 28, 2014

FAMILY REUNIFICATION FOR REFUGEES – SUPREME COURT JUDGMENT IN AMXS V MINISTER FOR JUSTICE

The Supreme Court delivered a judgment on the 20th November 2014 which gives some clarification to the Minister’s decision-making process in respect of family reunification applications for refugees pursuant to Section 18 of the Refugee Act 1996. The case concerns a very typical scenario of our clients whereby the refugee applicant has a strong dependency/support relationship with his family members, but he or she may be not be in position to financially support them on their arrival in the State. Often the refugee applicant is still a student themselves.

The facts of the case

In May 2009, the Somali national applied to the Minister for family reunification in respect of his dependent mother and siblings. The Minister’s decision to refuse the application was challenged by way of High Court Judicial Review proceedings and quashed by Mr Justice Cross in February 2012. The Minister was then required to carry out a re-consideration of the application and further evidence of the family members’ ongoing dependency on the applicant was submitted. 

The Minister refused the applications for the second time in July 2012, finding that the family members were dependent but refusing the application on financial grounds, i.e. that they posed a risk of financial burden to the State if the application was granted. The decisions in respect of the Applicant’s mother and minor sibling were challenged before the High Court for the second time. The Applicant was successful before the High Court and the Minister then appealed the High Court’s decision to the Supreme Court.

The findings of the Supreme Court

The Supreme Court found that the Minister is entitled in a general sense to refuse family reunification applications under Section 18(4) on the basis of financial grounds, i.e. in cases where the applicant is not in a position to support the family members if they come to Ireland. This differed from the High Court’s finding that that the Minister could never refuse an application under Section 18 solely on the basis that the family members may be reliant on social welfare in the State. 

However, the Supreme Court emphasized that while the Minister could refuse an application on financial grounds, the Minister must properly apply the principle of proportionality to the case. 

Mr Justice Frank Clarke stated as follows;

“The obvious inference to draw is that the absence of financial support is to be an exclusionary factor in respect of general applications but is only to be a factor to be taken into account amongst others in the case of those to whom the family reunification provisions apply”

The Supreme Court emphasized that significant weight must be given to the fact that the Oireachtas has chosen to confer a special entry status on dependent members of the extended family of a refugee. 

“In that context, it is difficult to see, without more, the mere fact that there may be some limited cost to the State could be decisive.”

The Supreme Court then carried out a balancing exercise between the family rights of the applicant against the exposure to risks for the State. In this regard, it was stated as follows;

“in the absence of any specific factors in relation to these applicants, it is difficult to see how the weight to be attached, in the context of family reunification, to the general right of the State to control immigration, could outweigh the factors which favour family reunification in this case”.

It was confirmed that the courts should only interfere with the Minister’s exercise of his discretion when the Minister is clearly wrong, and in this case, Mr Justice Clarke confirmed “I am satisfied that the Minister’s balancing exercise is clearly wrong”.

It was therefore held the High Court was correct in finding the Minster’s decision was disproportionate and should be quashed. 


Karen Berkeley

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