Case summaries
Domestic Immmigration Rules are likely to bar family reunion for children of refugees who have been informally adopted or whose legal adoption is not recognised by the UK.
The Immigration Service refused an application for asylum deeming the application unfounded as the applicant had mainly based her claim for asylum on economic grounds. The applicant was taken into the System of Victim Assistance during the appeal stage on suspicion the applicant was a victim of trafficking. The Administrative Court held that in line with the Immigration Service’s decision, the application was deemed manifestly unfounded, but due to a suspicion the applicant was a victim of trafficking, returned the case to the Immigration Service for re-examination.
This appeal challenged a negative decision of the Ministry of Interior to refuse family refugee status extension to the applicants whose son was granted refugee status in 2006.
This case concerned the application of the principle of family unity, where the sponsor had been granted asylum and subsequently acquired the nationality of the country of refuge.
Children who were born in France and who claim a fear of persecution because they refuse to be subjected to female genital mutilation (FGM) in their country of origin fall within the scope of subsidiary protection. The effective implementation of this protection requires that the child is not separated from her mother and that the mother benefits from the same protection.
The principle of family unity, which is a general principle of refugee law resulting in particular from the 1951 Refugee Convention, is not applicable to persons falling within the scheme of subsidiary protection, as defined both by the Qualification Directive and by the internal legislative provisions which transpose it.
The Minister for Justice issued a mother and her 5 children with deportation orders as failed asylum seekers pursuant to section 3(2)(f) of the (Irish) Immigration Act 1999. The only application for asylum was in the mother’s name. The children had not been issued with refugee status determinations at all and were not mentioned in the decision. The minor applicants challenged the deportation orders on the basis that their designation as failed asylum seekers was wrong in law. They had never made asylum applications. The High Court granted the applicants leave to seek judicial review but later refused the substantive relief of orders of certiorari quashing the deportation orders on the basis that the mother’s application had covered the children. The applicants appealed to the Supreme Court as the Court deemed the issue a point of law of exceptional public importance. The Supreme Court set aside the High Court judgment and made an order of certiorari quashing the children’s deportation orders, finding that there was no record of any decision refusing asylum applications on behalf of the children. The Court held that such a refusal was a fundamental prerequisite to the Minister’s power to make a deportation order under section 3(2)(f) of the Immigration Act 1999. Finnegan J. also held that where an application by a parent of a minor is unsuccessful, the child is entitled to apply for asylum based on his own circumstances and that where a child’s parents are successful, the child should benefit by virtue of the principle of family unity. The principle of family unity operates for the benefit of the minor and not against him.