Saturday March 30, 2019
By Ann O'Loughlin
Two women who got refugee status here and later became Irish citizens have lost significant test actions over whether they are entitled to enhanced family reunification rights under the Refugee Act.
The Court of Appeal's decision is significant because a person with family reunification rights under the Refugee Act 1996 does not have to meet certain requirements for family reunification under the Immigration Act 2004 or the Non-EEA National Family Reunification Policy.
The three-judge Court of Appeal unanimously ruled on Friday the two applicants they are not entitled to the enhanced rights under the 1996 Act because, as a result of citizenship, they are no longer refugees.
Their declarations of refugee status were revoked by operation of law once they acquired Irish citizenship, the court said. One of the women is aged in her thirties and from Somalia. She got refugee status in 2008 and became an Irish citizen in 2013. Before acquiring citizenship, she got permission for her children, her mother and her wards to join her here.
After re-establishing contact with her husband in late 2016, she sought family reunification in respect of him under the 1996 Act but was refused by the Minister for Justice on grounds of her Irish citizenship.
The second woman, aged in her forties and from Uzbekistan, got refugee status here in 2009. After getting citizenship in 2012, she sought family reunification rights under the Refugee Act for her eldest daughter and two young grandchildren but was also refused due to her citizenship.
Both women took separate proceedings against the Minister but their cases were rejected by the High Court's Mr Justice Richard Humphreys.
They appealed and the Irish Human Rights and Equality Commission was involved in the appeal as an assistant to the court on legal issues.
Giving the COA judgment, Ms Justice Marie Baker noted the Minister had initially taken the view an Irish citizen could not apply for family reunification under Section 18 of the 1996 Act but changed that approach in 2010 and processed such applications between 2010 and 2017 on foot of legal advice which the Minister now contended was incorrect.
The core issue was whether a refugee ceases to be a refugee once they have acquired citizenship of the State, she said. Other issues included the relevance of the Constitution, EU law and the Geneva Convention on refugees.
Central to the definition of refugee in the 1996 Act is that the person be outside the country of their nationality and be unable or unwilling, on account of a well-founded fear, to avail themselves of that country's protection or return to it.
Section 2 of the Act expressly excluded from that definition any person who gets citizenship of the country where they have taken up residence.
She ruled the High Court had correctly held a person ceases to be a refugee within the meaning of the 1996 Act on their acquisition of citizenship of the State.
That decision is consistent with international instruments, including the Geneva Convention, case law and commentary, she said.
Family reunification is not an 'absolute right'
She rejected arguments a formal revocation of refugee status is required and noted the power under the 1996 Act to revoke a declaration of refugee status is discretionary, not obligatory.
Family reunification is not an "absolute right" and she disagreed the enhanced rights to family reunification for refugees in Section 18 of the 1996 Act were relevant to interpreting that provision. The applicants in these cases are not refugees as defined in the Act, she said.
Addressing arguments by the IRHEC these family reunification applications must be seen in the context of family life and anti-discrimination principles and rights under the Constitution and ECHR, she said the Minister is obliged to consider those rights, not just in family reunification applications under the 1996 Act but also under the 2004 Act.
While she accepted the Minister's practice between 2010 and 2017 is "problematic", the practical problems resulting from that could not lead to an unwarranted interpretation of section 18 which contained no ambiguity, she held
Costs issues and final orders will be made on a later date.