State Liability for Damages for Refugee denied Family Reunification in S.H. & A.J. v. Minister for Justice [2022] IEHC 392

The recent decision of the High Court in S.H. and A.J. v. Minister for Justice and ors represents a partial victory for one applicant, A.J., who was granted refugee status under the International Protection Act 2015, but whose application for family reunification under s. 56 of the 2015 Act was refused in respect of his son. A.J. took judicial review proceedings against this decision of the Minister for Justice.

Ferriter J. in the High Court found that after A.J. was granted refugee status, he was not subsequently informed of his rights and obligations as a recipient of international protection, in a language that he could understand, as required by article 22 of the Qualification Directive. It was held that because of this breach by the State, A.J. was unaware that an application for family reunification under the relevant statute must be made when the applicant’s child is under the age of 18. A.J.’s application for family reunification was not made until just over three weeks after his son’s 18^th birthday and as a result it was denied. The High Court found that the State was liable for Francovich damages, which are monetary damages available under EU law, for its failure to transpose article 22 of the Directive and the ensuing breach of EU law.

Legal Framework

The provisions governing statutory family reunification applications for persons who have been granted international protection status (that is, either refugee status or subsidiary protection) are set out in ss. 56 and 57 of the International Protection Act 2015. In s. 56(1), it provides:

“(1) A qualified person (in this section referred to as the “sponsor”) may, subject to subsection (8), make an application to the Minister for permission to be given to a member of the family of the sponsor to enter and reside in the State.”

Also relevant is s. 56(9)(d), which sets out the eligibility criteria for family reunification regarding applicants and their children:

“(9) In this section and section 57, “member of the family” means, in relation to the sponsor—

(d) a child of the sponsor who, on the date of the application under subsection (1), is under the age of 18 years and is not married.”

The Minister for Justice also operates a non-statutory scheme for non-EEA family reunification, which governs applications made by persons lawfully residing in Ireland for long-stay visas for family members. Applications under the non-statutory scheme are determined according to ministerial discretion.

Finally, the Qualification Directive sets out at article 22 that persons must be provided with certain information after they are granted international protection:

“Member States shall provide persons recognised as being in need of international protection, as soon as possible after the respective protection status has been granted, with access to information, in a language likely to be understood by them, on the rights and obligations relating to that status.”

Factual Background

The two applicants in these proceedings applied for and were granted international protection, and had sons who were under 18 at the time that they made this application. S.H., the first applicant, is a Syrian national who applied for international protection in February 2020 and was granted refugee status in June 2021. His son turned 18 in April 2021, and thus he had “aged out” of the s. 56(9)(d) criteria by the date that S.H. could make an application for family reunification. Thus, when such application was made in respect of his son in July 2021, it was refused.

A.J. is a Somalian national who arrived in Ireland and applied for international protection in August 2019. He was granted refugee status in November 2020. A.J. was unaware that the Minister based her assessment of the application on the age of the child at the date on which the application for family reunification was made, rather than the date on which he was granted international protection, and his son turned 18 on 2 January 2021. He then applied for family reunification on 29 January 2021, and the application in respect of his son was refused.

The applicants both sought to judicially review the decision of the Minister to refuse their respective family reunification applications. They both subsequently applied for a long-stay visa for their sons under the non-statutory scheme, and at the time that the High Court’s judgment was delivered, both applications had not been determined. A.J.’s application was refused at first instance and a review of that decision was pending, while S.H. was still awaiting a first-instance decision.

Decision of the High Court

Submissions dismissed by the Court

The applicants made several submissions which were dismissed by the Court. First, both applicants argued that the delay in processing their international protection applications was unjustifiable, and but for the delay, S.H. could have made a family reunification application before his son turned 18, and A.J. would have had a longer window in which to make his application. They submitted that in such exceptional circumstances, the Court had the jurisdiction to fashion an effective remedy, such as a declaration to the effect that the Minister’s refusals were unlawful. Ferriter J. held that the question of jurisdiction to provide such a remedy did not arise, as the processing of applications by the International Protection Office was severely impeded by the Covid-19 pandemic. Thus, Ferriter J. determined that the applicants’ claim of culpable delay was not made out as the reason behind the delay was valid.

The applicants also claimed that s. 56(9)(d) operated to breach EU law, on the basis that there was a self-standing right to family reunification in EU law, deriving from art. 18 of the Charter of Fundamental Rights of the European Union, which provides for the right to asylum. The applicants argued that as the conferral of refugee status is declaratory of the fact that the applicant has been a refugee from the point in time at which they made an international protection application, the right to family reunification also operates from that point. Thus, they claimed, s. 56(9)(d) must be disapplied to the extent that it undermines same. Ferriter J. held that there was no right to family reunification which derives from art. 18 of the Charter, nor from any EU directives which Ireland is a party to. Thus, the Court held that the terms of s. 56 were a matter of policy choice by the Oireachtas.

Next, the applicants claimed that the terms of s. 56(9)(d) were unconstitutional and in breach of the ECHR, on the basis that they were treated unequally as compared to other applicants for international protection whose children were the same age as theirs, but who were granted international protection at an earlier point than them, thus allowing those applicants get the benefit of family reunification when that benefit was denied to them. This, they claimed, was a breach of their rights under the equality provisions of Article 40 of the Constitution and Article 14 of the ECHR. The selection of the date of the family reunification application as being the relevant one for assessing the claim for an applicant’s child was argued to be arbitrary and to constitute a disproportionate attack on applicants’ family rights under the Constitution and the ECHR.

Drawing on the decision of the Supreme Court in A, S, S & I v. Minister for Justice [2020] IESC 70, Ferriter J. found that as there is no right to family reunification other than the right created under the statute, the appropriate comparator was instead any other applicant who applied for family reunification on the same date that they did. Therefore, the applicants, it was held, were treated the same as any other such applicant and there was no unequal treatment such as to breach the Constitution or the ECH. To uphold the applicants’ submission would be to rewrite the terms of s. 56(9)(d) by effectively holding that a qualifying child within the provision is a child who was 18 at the date of the sponsor’s international protection application, which would be a violation of the separation of powers.

Further, Ferriter J. held that it was open to the Oireachtas as a matter of policy to determine which children of the beneficiaries of international protection would be granted family reunification. There is an objective justification for conferring this benefit of family reunification to minor children and not to adult children, and the selection of the date of the family reunification application as the relevant one for the purpose of this assessment was held to be both proportionate, and within the margin of appreciation afforded to the Oireachtas.

A successful ground of review for one applicant

Finally, the Court accepted A.J.’s claim that the State had failed to transpose, and give him the benefit of, the provisions of article 22 of the Directive. It was accepted that the State had failed to provide A.J. with information in the Somali language on the criteria and cut-off dates for family reunification purposes after he was granted refugee status. Ferriter J. found that this was a breach of A.J.’s right under article 22 to be informed of the rights and obligations relating to his refugee status, in a language that he could understand, as soon as possible after the status was granted.

The Court did not accept that the State complied with the terms of article 22 by providing such information at the outset of the international protection application process, nor by providing A.J. with the relevant information in English once he was granted refugee status.

A.J. first sought non-monetary relief in respect of the breach and claimed that he was entitled to an order directing the Minister to grant family reunification with his son, but this submission was rejected by the Court.

Ferriter J. then assessed whether A.J. was entitled to Francovich damages, which are awarded for a serious breach of EU law which cause damage to be sustained by the injured party, following the decision of the CJEU in Francovich v. Italy. He held that the breach was sufficiently serious, as article 22 was clear and unambiguous, and there was “manifest and grave disregard” of the non-discretionary obligation it contained. Ferriter J. then held that on the unchallenged evidence before the Court there was a clear causal link between the breach and the damage caused to A.J. by his resultant failure to apply for family reunification for his son before he turned 18.

However, as the review decision in respect of A.J.’s application under the non-statutory scheme was still pending, the Court held that it was difficult to assess the loss or damage he has suffered. For this reason, any further consideration of Francovich damages to which A.J. is entitled has been held over until the review application is determined.

Conclusion

While the outcome of these proceedings did not yield the principal reliefs sought by the applicants, it may produce some positive consequences for other beneficiaries of international protection.

First, the decision has underlined the State’s responsibility under article 22 of the Directive to provide those who have been granted international protection with information regarding their rights and obligations, in a timely manner, in a language they can understand. If a beneficiary can show that the State’s failure to provide them with such information has directly resulted in them suffering loss or damage, then they may be able to establish a legal entitlement to Francovich damages.

Ferriter J. also offered some non-binding observations on the non-statutory scheme, which may generate future improvements in its operation. For one, the judge suggested that it would be appropriate to fast-track urgent applications for family reunification under the scheme, where pressing humanitarian considerations are engaged, and suggested that policy guidelines governing the scheme ought to address these circumstances. These applications can engage fundamental rights, and in some situations, Ferriter J. remarked, it would not be proportionate for an applicant facing difficult humanitarian circumstances to wait 12 months or more for a decision under the scheme.

Should you be affected by a refusal of family reunification under the International Protection Act 2015 or under the non-statutory scheme, please do not hesitate to contact Stephen Kirwan of this office at stephen.kirwan@kodlyons.ie.