The Supreme Court has confirmed that section 56(9)(d) of the International Protection Act 2015, which determines eligibility for family reunification by reference to the date of the application rather than the date of the international protection claim, is lawful and compatible with EU law, the Constitution and the European Convention on Human Rights.
The appeal arose from an application by a Zimbabwean national who had been granted refugee status in February 2022. She subsequently applied for family reunification in respect of her three children. While reunification was approved for her two younger children, it was refused for her eldest daughter, who had turned 18 by the time the application was made. The refusal was based on section 56(9)(d), which limits eligibility to children who are minors on the date of the reunification application.
The appellant challenged the refusal by way of judicial review, arguing that her children’s ages should have been assessed as of the date of her asylum application. The High Court rejected that claim, and the Court of Appeal upheld the constitutionality and legality of the provision. The appellant was granted leave to appeal to the Supreme Court on issues concerning compatibility with EU law, constitutional rights and the ECHR, as well as whether an alternative non-statutory policy route should have been pursued.
Delivering judgment for the Supreme Court, Ms Justice Elizabeth Dunne held that Ireland had not opted into the Family Reunification Directive or the recast Qualifications Directive relied upon by the appellant. As such, the original Qualifications Directive applied, but its protections were limited and did not assist the appellant’s case. The Court emphasised that a person may only apply for family reunification once refugee status has been granted, and that the State was entitled, as a matter of policy, to determine the criteria governing eligibility in the absence of binding EU obligations.
On the constitutional arguments, the Court agreed with the Court of Appeal that there is no freestanding constitutional right to family reunification. The appellant’s claim was characterised as one based on equality rather than the breach of a substantive constitutional right. While acknowledging that variable processing times could result in children “aging out” of eligibility, Ms Justice Dunne noted that the Oireachtas was not obliged to select the most generous possible date for assessment, and that any chosen cut off point would inevitably disadvantage some applicants.
The Court also rejected the ECHR challenge, finding that Article 8 rights are not absolute and that there was no basis for concluding that the selection of the application date as the relevant date for assessing age breached the right to family life or amounted to unlawful discrimination.
Addressing the argument that the appellant should have pursued the alternative non-statutory family reunification policy, the Court held that there was a material difference between reunification under section 56 and entry under the policy document. It was therefore appropriate for the appellant to challenge the statutory refusal directly.
The Supreme Court dismissed the appeal, confirming the validity of section 56(9)(d) of the International Protection Act 2015.
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