'Family Reunification' in the refugee context is where a family that has been separated due to conflict comes back together in a country other than their country of origin where they have been granted refugee status.
Under the Immigration Act 2015 family reunification amounts to an entitlement to reunification with “certain specified persons”. This, as per s. 56 (9) (d), means “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.”
Where a parent applies for family reunification with their child the subject of that family reunification application must be either the biological child or adopted child of the applicant.
It was in 2019 with the case of X v Minister for Justice and Equality that the definition of child for the purposes of s 56 (9) of the International Protection Act was determined to mean either the biological or adoptive child of the applicant.
At first instance however, the Judge opted for a more expansive approach finding that as the term “child” in s.56 (9) of the 2015 Act is not defined it therefore can extend to non-biological children. This judgment would have opened the door for an interpretation of child that included wards.
On appeal, however the Supreme Court rejected the trial judge’s finding that given the “wide diversity of family structures” s. 56 family reunification applied to a wider cohort of children other than the biological/adopted child of the sponsor. Instead, it was held that “a child of the sponsor” can “only mean a biological or adopted child.” The question of who exactly an adopted child is however remained unclear.
H.A v The Minister for Justice and Equality
The case of H.A v The Minister for Justice and Equality brought the issue of adopted children before the Courts. In this case H.A, a Somalian woman, was granted refugee status in Ireland. Her husband and the children she described as her “non-biological children” remained in Somalia. By birth, these children were cousins; H.A’s niece and nephew. Their respective parents had died in fighting in Somalia. A court in Somalia issued a “Declaration of Responsibility” to H.A in respect of these children, making her their legal guardian.
In Ireland, having been granted refugee status, H.A applied for family reunification with her husband and children. In her application, she identified the children as her “non-biological children”; she explained their relationship and provided the Declaration of Responsibility as part of her supporting documentation.
Her application for family reunification with her husband was accepted but her application for her non-biological children was not. She challenged this decision.
H.A sought judicial review and certiorari on the basis that the Department had failed to consider the Declaration of Responsibility and secondly that they had failed to provide reasons for the decision “particularly as to why the relevant relationship did not amount to adoption having regard to the concept of adoption in the country of origin.”
The Judge decided that the application should be returned to the Minister for fresh assessment in a process more fully compliant with fair procedures (i.e. that the Declaration of Responsibility should be considered).
The Judge did however suggest that a refugee sensitive approach should be taken to the concept of “adoption” similar to the refugee sensitive approach to marriage that was taken in the case of Hamza v Minister for Justice.
The Minister for Justice appealed the decision. On appeal there was some deliberation as to the relevance of the question as to whether the children were “adopted children” as the language of adoption was not used in the initial application. However, while the application had not been made on the basis of adoption, counsel submitted that “the application had clearly been made with respect to a claim in relation to a non-biological child and referenced the Declaration.”
Pursuant to section, 18 (d) of the Interpretation Act an adopted child is treated the same as a biological child for the purposes of s 56 (9) (d) of the 2015 Act. However, in H.A the Minister argued that the relationship between the applicant and her non-biological children did not qualify as that of a parent and adopted child.
The Minister submitted that the Adoption Act of 2010 was the relevant legislation and argued that because Somalia is not a Hague Convention country and there is no bilateral agreement between Ireland and Somalia even if the Declaration of Responsibility translates to adoption in Somali culture it cannot be considered as adoption for the purposes of the International Protection Act. H.A argued however that in the context of family reunification it was the law of the country of origin – in this case Somalia – that was definitive.
The Court of Appeals ultimately found that the High Court was correct in finding that the Declaration of Responsibility had not been properly considered and that the declaration was vital to determining whether the children qualified as the respondent’s non-biological children.
While this meant that that H.A.’s application for family reunification would be reconsidered, this time with proper consideration given to the Declaration of Responsibility, it did not mean that her children have been accepted as adopted children or that the application would be granted this time.
In this case, the Court did not define adopted children, stating instead that;
“An important consideration is that while X v. Minister for Justice and Equality held that the child of a sponsor meant solely the biological or the adopted child of the sponsor, the Supreme Court was not asked to, and did not consider, the precise meaning of “[a]dopted child” as set out in s. 18(d) of the Interpretation Act. That point did not arise in X and, as is frequently said, a point not raised is a point not decided.”
As was seen in H.A v The Minister for Justice and Equality when considering, the legal circumstance of a non-biological child who is the subject of a family reunification application the law on both immigration and adoption is of relevance.
Adoption in Ireland is governed by the Adoption Act 2010, as amended by the Adoption Act 2017.The Adoption Act 2010 cites as it’s purpose;
“to give the force of law to the convention on the protection of children and co-operation in respect of intercountry adoption signed at the Hague on 29 may 1993; to provide for the making and recognition of intercountry adoptions in accordance with bilateral agreements and with other arrangements; to provide for the recognition of certain adoptions effected outside the state”.
Between the years of 2000 and 2021 the top 5 nationalities applying for International Protection in Ireland were Nigeria, Georgia, Somalia, Afghanistan and Zimbabwe. Of these countries, Georgia alone is a signatory to the Hague Convention.
This pattern has repeated in 2022. This year the largest refugee crises worldwide are Syria, Ukraine, Afghanistan, South Sudan, The Rohingya Crisis (Myanmar), Democratic Republic of Congo, Sudan, Somalia, Central African Republic and Eritrea. Of these countries, Ukraine alone is a signatory to the Hague Convention. These countries are predominantly Muslim countries. While each country has a different legal system, Shri’a law for the most part does not allow for adoption as it is understood in Ireland.
This has led to a cohort of extremely vulnerable children. They are vulnerable in the first instance because they are asylum seekers and vulnerable in the second instance because often they have lost their biological parents to the very conflict, which has now led their adoptive family to seek refugee status.
The purpose of the Hague Convention is to protect children from abduction and traffickers and to prevent abuse of adoption by parties with imbalances of power and wealth. The Hague Convention was not meant to function as a barrier to children enjoying family life. Nor was the Hague Convention intended to control immigration.
In their Legal and Protection Policy, Research Series the UNHCR noted, “the absence of an agreed definition of “family” at the international level has meant that States may define the term according to their own interests, culture and system. Any such definition must, however, be “without discrimination”.
Child protection is of paramount importance. Both that they should be protected from being taken from their country of origin wrongfully and that they should be protected from being wrongfully excluded from a family reunification application. A nuanced approach to the concept of adoption needs to be taken.
One option would be to expand those people included under s.59(9) to include a legal ward of the applicant or secondly to define adopted child in a way that takes account of the legal and cultural context of adoption in the applicants country of origin.
Family reunification allows people who have had to flee their home due to persecution to return to a stable environment with their family. This stable environment gives refugees the best chance of success and integration in their new home. Current practice not only excludes children who have already suffered greatly but works against any goal of integration and success for this cohort of Irish residents.