Court overturns finding relating to recognition of marriages of refugees

The Supreme Court has overturned a finding of unconstitutionality concerning a law preventing the recognition, for family reunification purposes, of marriages of refugees which took place after they sought protection here.

The five-judge court disagreed with the High Court’s Mr Justice Max Barrett that section 56.9 of the International Protection Act 2015 discriminates unlawfully and unjustifiably between those who were married before seeking protection and those who were not.

Granting the State’s appeal in two separate cases, the court overturned the judge’s declaration, which he had stayed pending appeal, that section 56.9 is unconstitutional and incompatible with the European Convention on Human Rights (ECHR).

In a third appeal, the court upheld a decision by the High Court’s Mr Justice Richard Humphreys rejecting a challenge to the constitutionality of section 56.8 of the 2015 Act, which allows family reunification applicants a maximum 12 months to apply within a year of securing refugee status or subsidiary protection.

That appeal was by a 19-year-old Nigerian woman who, when aged 10 in 2011, was abandoned here by her mother and later made subject of a care order. She got refugee status in 2014. After resuming phone contact in 2018 with her family, social workers applied on her behalf later in 2018 for family reunification with her parents and sister but the application was refused due to not being brought within the 12 months specified by section 56.8.

The first two appeals, concerning an Iraqi Kurdish man and an Afghan man who both married after getting protection here, were heard together, followed by the Nigerian woman’s appeal.

The Supreme Court agreed to hear the appeals because they raised issues of general public importance and because of the clashing views of the two High Court judges on section 56.9. Mr Justice Barrett had declined to follow a prior judgment of Mr Justice Humphreys, in the RC case, and another by Mr Justice David Keane, upholding the constitutionality of section 56.9.

Giving the court’s main judgment on all three appeals on Tuesday, Ms Justice Elizabeth Dunne noted the section 56.9 reunification procedure is more favourable to applicants than an alternative procedure under the 2015 Act set out in a policy document.

While critical of some of the reasons advanced by the Minister for the distinction between married and unmarried applicants, she agreed with much of Mr Justice Humphreys reasons in his “RC” judgment for rejecting a challenge to the constitutionality of section 56.9.

She said Mr Justice Barrett had relied on two European Court of Human Rights decisions, “Hode” and “Abdi”, and clearly considered the “RC” decision was incorrect but failed to explain why that was so. The position was further complicated because he had put a stay on his declaration of unconstitutionality, creating uncertainty in the law.

The thrust of international consensus is the refugee should be able to resume normal life and, in the case of an individual who was not married when they sought protection, the question of resuming normal life “simply does not arise”, she held. The position of the applicants in the first two cases was not the same as those whose relationships have been ruptured by having to flee their country of country of origin due to persecution.

The distinction between those who are married when seeking protection and those who are not is “legitimate and proportionate” having 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, she concluded.

For similar reasons, she dismissed the finding of incompatibility with the ECHR.

Dealing with the Nigerian woman’s appeal, the judge dismissed claims that a 12-month time limit for family reunification, or any time limit a legal guardian must exercise on behalf of a child, breaches any constitutional right.

The “door is not closed” to all three applicants as they may still apply to the Minister under the policy document alternative procedure, she added.

In a concurring judgment focusing on the issues arising when High Court judges disagree, Mr Justice Peter Charleton said there was evidence of “highly rigorous analysis” by Mr Justice Barrett in his judgment, particularly the section where he came to differ from Mr Justice Humphreys, but he had not advanced reasons for not following the earlier precedent set by his colleague.