Irish High Court finds family reunification not confined to biological children

The Irish High Court has ruled that the definition of ‘child’ for the purposes of family reunification under Section 56 (9) of the International Protection Act 2015 (2015 Act) is not confined to a biological child.

The applicant in this case, Mr X, was granted subsidiary protection in 2014 and then applied for family reunification for his two children. He was asked to undergo a DNA test to establish his paternity of the children and while he initially agreed, he then declined out of fear that his wife may have been unfaithful and the children may not be his. As a result, his application was unsuccessful. His second application, made under Section 56 of the 2015 Act, was also refused on the basis of the first decision.

Mr X sought an order from the High Court quashing the decision by the Minister to refuse the application. In its decision, the Court primarily dealt with the definition of the ‘child’ under Section 56 (9).

The first issue concerned whether Mr X could legally challenge the Minister’s decision. It is provided in Section 56 (1) of the 2015 Act that a reunification order may be made in relation to ‘a member of the family of the sponsor’, the definition of which includes “(d) a child of the sponsor who, on the date of the application…is under the age of 18 years and is not married”.

The Court held that as the term ‘child’ was not defined, there was no basis to refuse an application, even if the children were not the biological children of Mr X. The Court stated that if the children in Mr X’s application were the biological children of another man, they could still be described as a ‘child’ of Mr X for the purposes of the application and in accordance with the 2015 Act. The Court emphasised that the term ‘child’ bears a wider meaning than a biological child in this context. The Court therefore held that the issue in this case stemmed from the Minister’s error in proceeding on the basis that Section 56 (9) (d) of the 2015 Act required that a sponsor be the natural parent of a child.

Secondly, the Court held that this application was governed solely by domestic law and did not fall under any European Directive.

In its concluding remarks, the Court discussed how Section 56 (3) of the 2015 Act requiresd a sponsor to ‘cooperate fully’ and ruled that failing to provide a DNA sample did not necessarily amount to failure to ‘cooperate fully’. It distinguished between inviting someone to undertake a DNA test and requiring a DNA test.

The Click here for the decision in X v Minister for Justice [2019] IEHC 284.

 

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