Ireland - High Court, 22 January 2013, Casha Digale Ducale & Anor v Minister for Justice and Equality & Anor [2013] IEHC 25

Facts:

The applicants are a married couple of Somali origin. The first Applicant, Ms Ducale, came to Ireland in October 2003; was granted refugee status in June 2004; and subsequently became a naturalised Irish citizen.

In her application for refugee status she had stated that she fled Somalia and had become separated from her mother, her husband and four surviving children who, she was told, had gone to Ethiopia. Two of those children are her niece and nephew, the children of her late brother who was killed during the civil war in 1991; his widow died three months after the birth of her second child in October 1991. The two infant orphans were then raised by the Applicants as their own children. She consistently stated that she had been unable to legally adopt her niece and nephew because of the situation in Somalia.

Very soon after she was recognised as a refugee in 2005, the Applicant applied without legal assistance for family reunification with her husband, her mother and her four children. She provided documentary evidence from a Somali resident in Ireland who had travelled to Ethiopia and made contact with her family in Addis Ababa. The first Applicant’s mother died in March 2006 before a decision was made. Her death certificate was furnished to the authorities.

In December 2006 the first Applicant’s husband and their two biological children were granted permission to join her in Ireland. Her niece and nephew were refused permission, as was her mother (failing to acknowledge her death), on the basis that they did not qualify as dependant family members under s. 18(4) because:

(i)                  insufficient evidence had been provided of their financial dependency;

(ii)                insufficient evidence had been submitted that they suffered from a mental or physical disability to such extent that it was not reasonable for them to maintain themselves fully; and

(iii)               the niece and nephew did not come within the meaning of “dependant member of the family” set out in s.18(4).

In July 2007, the first Applicant re-applied, this time through a solicitor, for permission for her niece and nephew to join her. She emphasised that her niece and nephew were now alone in Ethiopia. Letters and statements from third parties in Ethiopia were furnished, attesting to the children's poor living conditions and one of the children’s vulnerable position as an unsupervised 17-year old girl.

A long delay ensued until late January 2010 when correspondence was exchanged between the authorities and the first Applicant’s legal representatives. The first Applicant failed to satisfy them in relation to a number of requests for documents and her offer to submit to DNA testing was not followed up. During this period the two children turned 18 and the authorities additionally sought evidence of continuing financial dependency.

On 17th October 2011 the application was refused. The reason given was that the Applicant had not satisfactorily established financially dependency. The receipts submitted added up to €828.57 over four years which was deemed to constitute insufficient financial assistance to establish dependence; no allowance was made for any sums claimed to have been sent for which there were no receipts which would have amounted to $3,360) and the letter from the money transfer agency outlining the regular sums sent was not referred to.

Decision & reasoning:

Section 18 of the Refugee Act 1996 regulates the family reunification of refugees in Ireland.  18(3) concerns the spouse and unmarried minor children of the refugee; S. 18(4) grants the Minister for Justice a discretion to permit reunification in the case of other specified family members: “any grandparent, parent, brother, sister, child, grandchild, ward or guardian of the refugee who is dependent on the refugee or is suffering from a mental or physical disability to such extent that it is not reasonable for him or her to maintain himself or herself fully.”

The operative date for considering whether a family member is a child under s. 18(3) is the date on which the application was made however s. 18(4) is silent in that regard. Once a ward reaches the age of majority, unless mentally or physically incapacitated, he or she loses the presumption of dependency which attaches to a minor and requires a higher degree of proof. The Court held that the relevant date is the date of the application.

The Court noted the cases which have come before it have indicated a considerable lack of clarity on the circumstances which would engage such discretion. The word “dependent” is not defined in the Refugee Act 1996 nor, it seems, do any judgments provide assistance in the context of family reunification of refugees. It was also noted that although the concept of dependency is central to the discretionary powers of Member States established under Directive 2003/86/EC on the right to family reunification (to which Ireland is not a party), the Directive contains no definition of the term.

The Court considered a number of UNHCR documents and other soft-law sources before concluding:

“There is thus objective support for the contention that ‘dependency’ is not confined to total financial dependence but involves a wider concept taking account of all relevant economic, social, personal, physical, familial, emotional and cultural bonds between the refugee and the family member who is the subject of the FRU application. Moreover there is support for the contention that financial dependency must be seen as a flexible state of affairs which is not necessarily determined by the size of a contribution but rather on its effect in the context of the specific country of residence and personal circumstances of the person in receipt of the contribution.“

On the facts of the case the Court found that it had been established that the two family members were wards of the refugee in circumstances where legal adoption or fostering was simply not an available option. It found it inconceivable that such a close parent / child relationship could be considered to fall outside the terms of the Minister's discretion under s. 18(4) as the term “ward” must surely be interpreted as sufficiently flexible to encompass such a relationship of dependency. It concluded:

“… the strength of the family ties between the applicants, their biological children, and the niece and nephew who could have been considered ‘wards’ was never investigated, considered or evaluated by the Minister, either for the purposes of deciding whether the niece and nephew were statutory family members or in the context of the assessment of dependency which was restricted to the narrow issue of financial dependency. The Court is therefore satisfied that the Minister failed to consider the material which was put before him which might have been capable of establishing dependency.”

The Court characterised the Minister's assessment as an arbitrary evaluation based on no identified criteria.

Outcome:

Relief granted: the Minister’s refusal of the application for family reunification was quashed and it was remitted for fresh consideration.

Observations/comments:

The court found as a matter of fact that the application was brought under s.18(4) of the Refugee Act 1996 concerning dependant family members and not under s.18(3) which obliges the Minister to grant permission to a refugee’s spouse and unmarried children under the age of 18. This was effectively accepted by the Applicants' counsel at the hearing of the application for judicial review.

As a result no decision was taken on this occasion on whether the term “child” should be interpreted expansively in line with the jurisprudence established in Hassan & Anor v. The Minister [2010] IEHC 426, Hamza & Anor v. The Minister [2010] IEHC 427 and D.M. v. C.F. [2011] IEHC 415 where the term “spouse” was given a purposive interpretation in the context of an enduring family relationship rather than one limited to matrimonial status under Irish law.

Other sources:

UNHCR Resettlement Handbook (reissued in 2011), pp 178-179; p. 273-4

European Council on Refugees and Exiles (ECRE) Information Note on Directive 2003/86/EC (2003)

UNHCR Background Note Protecting the Family: Challenges in Implementing Policy in the Resettlement Context

UNHCR discussion paper for Global Consultations on International Protection, “Family Unity and Refugee Protection”

UNHCR Response to a Green Paper prepared by the European Commission on Directive 2003/86/EC (2011)