Ruling marks an end to ‘forced separation’ of couples

A ruling that allows refugees who married after they first sought asylum to apply to have their spouse join them in Ireland, should not delay long-awaited reforms of family reunification system, advocates have warned.

Wednesday's High Court judgment by Mr Justice Max Barrett, effectively overturning Section 59.6a of the International Protection Act 2015, was "warmly welcomed" as ending the "forced separation" of married couples.

The Act states that a refugee, acting as a “sponsor”, can apply to have their spouse join them in Ireland, “provided that the marriage is subsisting on the date the sponsor made an application for international protection in the State”.

Describing the distinction between a marriage entered into before seeking asylum and one entered after as “arbitrary and irrational”, Mr Justice Barrett declared the section unconstitutional and accepted the argument that it treated some marriages less favourably than others.

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Catherine Cosgrave, managing solicitor with the Immigrant Council of Ireland (ICI), said the judgment would benefit a small but significant number of refugees.

“This is an issue which comes up reasonably regularly on our helpline for applicants who have been granted refugee status and then seek to be reunited with their spouse. As the judgment found, there is no justification for treating refugees who married post flight differently from those who married pre flight.”

She said a “relatively simple” amendment to the 2015 legislation was now needed “urgently”.

The wording is repeated in International Protection (Family Reunification) (Amendment) Bill 2017 before the Oireachtas and must now also be amended.

Asked if this could delay its progress an ICI spokeswoman said: “No, it is a simple change and should not delay it. We hope the Government will support its speedy progression.”

Nick Henderson, chief executive with the Irish Refugee Council, said it was an important judgment for married couples who have been forced to live apart due to Irish law on family reunification.

“The decision recognises the realities of people’s lives and their fundamental rights under the Constitution and the European Convention on Human Rights.

“In particular, it is hugely positive for LGBT couples who may not have been in a position to marry in their countries, where same-sex marriage is not legal. Until today’s decision, if an LGBT refugee married their partner after the date of submitting their application for asylum, the law made it impossible for them to bring their spouse to Ireland.”

Senator Colette Kelleher, sponsor of the Family Reunification Bill, wrote to the Minister for Justice Charlie Flanagan after the ruling, noting Mr Justice Barrett's emphasis that potential sponsors were entitled only to apply for reunification, and not to automatic reunification.

This underlined, she said, the Bill would not create a new cost to the exchequer and so should not require a “money message” that could see it fall. The Bills Office in the Oireachtas has recommended the Bill requires a money message.

“I would respectfully ask that you consider the implications of refusing a money message,” Ms Kelleher said in her letter.