High Court quashes Minister's refusal of family reunification due to failure to address document doubts with applicant.

Neutral Citation Number: [2008] IEHC 361

THE HIGH COURT

2007 No. 1621 JR

BETWEEN

P. O. T.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

Judgment of Mr. Justice Hedigan delivered on the 19th day of November, 2008

1. This is an application for judicial review of the decision of the Minister for Justice, Equality and Law Reform (“the Minister”), dated

29th August, 2007, to refuse to grant permission to the applicant for members of his family to enter and reside in the State. The

applicant is seeking an order of certiorari in respect of the Minister’s decision and a declaration that the said decision is unlawful.

Background

2. The applicant, who is a national of Ghana, arrived in the State on 25th September, 2001 and was granted refugee status on 26th

March, 2003. Throughout his asylum application, he stated that he was married to M.O. and had three children: H. (born in 1991), Ma.

(born in 1987), and G. (born in 1985).

3. In June, 2003, the applicant made an application for visas for M., H., Ma., G. and for a fourth child, F. (born in 1988), stating that

the intended purpose of the visas was family reunification. With a view to corroborating his relationship with his wife and children, he

submitted a marriage certificate, birth certificates, passports and letters from the children’s schools. The respondent points out that

in the visa application, the applicant stated that H. was born in 1992, whereas he had previously stated that she was born in 1991,

but I do not think that anything turns on this in the present case. Perhaps more noteworthy is that by the time the visa application

was made, G. was no longer under 18 years of age.

4. By letter dated 7th July, 2003, the Minister caused the visa applications to be referred to the Refugee Applications Commissioner

(RAC), in compliance with section 18(1) of the Refugee Act 1996. The RAC provided the applicant with a questionnaire on 9th July,

2003, which he duly completed, thereby officially applying for permission for his family members to enter and reside in the State (i.e.

family reunification). On 10th November, 2003, the RAC submitted a report to the Minister, in compliance with s. 18(2) of the Act of

1996. The report noted that the applicant had submitted original documentation in respect of his marriage and his relationship with his

children. It also noted that there was no evidence that G. was dependent upon the applicant or that he was suffering from any

mental or physical disability. It was noted that F. had not been mentioned in the asylum application and that the applicant had not

seen his family since 1994.

5. The RAC report also noted a disparity with the documentation submitted in support of the family reunification application when

compared to the applicant’s asylum application: the marriage certificate submitted with the family reunification application was signed

by his father, S.O., in 2003. The applicant had stated in his asylum application that his father, S.O., died in 1976 and his brother, of

the same name, died in 1992. Some 16 months after receiving the RAC report, the Minister informed the applicant, by letter dated

March 21st 2005, that he was considering revoking the grant of refugee status on the basis of that disparity. The applicant replied

promptly to the Minister, stating that it was not his birth-father but his foster-father, also named S.O., who had signed the marriage

certificate; thereafter, he submitted death certificates in respect of his father and brother, bearing the dates 1976 and 1992. On 1st

November, 2006, the Minister informed the applicant that he had accepted the explanation given and no longer intended to revoke his

refugee status. The Minister made no reference to family reunification.

6. Meanwhile, on 21st March, 2006, the applicant informed the Minister that he and his wife, M.O., had divorced, and he sought to

withdraw the application for family reunification in respect of her. He attached a doctor’s report showing that he was suffering from

stress, exacerbated by the absence of his family, and requested an early decision in the matter. He noted at that stage that he was

willing to answer any questions relating to the application.

The Minister’s Decision on Family Reunification

7. On 19th August, 2007, the Minister decided to reject the application for family reunification. In his decision, the Minister made the

following findings:-

(1) The birth certificates submitted by the applicant are invalid because they contain different holographic stickers; and

because there were inconsistencies in relation to the certificate, entry and margin numbers.

(2) No mention was made of F. during the asylum process.

(3) There is no evidence that G. was dependant on the applicant; he does not therefore fall within the terms of s. 18(4).

(4) Because the applicant is now divorced from M., she is not a member of his family within the meaning of s. 18(3)(b).

8. Soon afterwards, judicial review proceedings were commenced in respect of the Minister’s decision. An ex parte application for

leave was granted by Finlay Geoghegan J. on 10th December, 2007. Nothing turns on the third and fourth findings in the present

case; the applicant’s complaints surround the first and second findings.

The Applicant’s Submissions

9. It is complained that the Minister acted in breach of fair procedures by failing to raise with the applicant his concerns in respect of

the veracity of the birth certificates and the fact that F. had not previously been mentioned. As a result, the applicant was unaware

of the Minister’s concerns and had no opportunity to make representations to the Minister to dispel those concerns. It is contended

that in order to comply with fair procedures, the Minister should at a minimum have brought his doubts to the attention of the

applicant and allowed him an opportunity to rebut those doubts. Reliance is placed, in this regard, on the decision of Nguedjdo v. The

Refugee Applications Commissioner (Unreported, High Court, ex tempore judgment of White J. 23rd July, 2003) and Idiakheua v. The

Minister for Justice, Equality and Law Reform (Unreported, High Court, Clarke J., May 10th, 2005).

10. The applicant submits that this situation cannot be compared to the statutory asylum process, in respect of which it has

consistently been held that there is no obligation for the decision-maker to engage in a debate with the applicant. It is submitted that

the process by which an application for family reunification is decided is a statutory administrative function in relation to which there

is no interview, no oral hearing, and no right to appeal, at least on a statutory basis. Moreover, this is not an area in relation to which

a complaint can be made to the Ombudsman.

The Respondent’s Submissions

11. At the outset, the respondent points out that the applicant is not precluded from making a fresh application for family

reunification and, in that application, to make representations as to the veracity of the birth certificates and his relationship with F.

12. In addition, the respondent seeks to compare the function of the Minister in the present case to the function of the Minister when

considering an application under the IBC/05 scheme. The respondent contends that as a result, instead of the principles relating to

fair procedures set out in Nguedjdo and Idiakheua, upon which the applicants seeks to rely, the relevant principle is that set out by

the Supreme Court in Bode v. The Minister for Justice, Equality and Law Reform [2007] IESC 62. In that case, the applicant was

refused admission to the IBC/05 scheme because the Minister was of the view that the evidence supplied with his application form

was not sufficient evidence of residency in the State. The High Court had held that in the circumstances, fair procedures required

that the applicant should have been asked, by letter, to provide documentation evidencing residency in the State, before the Minister

made his final decision. The Supreme Court came to a different conclusion, as follows:-

“There is no general duty on an administrative body to give the opportunity to provide additional material after the closing

date for application.”

13. On that basis, it is submitted that the Minister is entitled to make a decision based on the documentation submitted and that he

is not obliged to enter into a debate or to engage in correspondence with the applicant.

The Court’s Assessment

14. The matter of family reunification is a matter of great urgency and importance. The fundamental importance of the family unit and

its right to be protected is enshrined at the heart of the Irish Constitution. It is further protected by Article 16 of the Universal

Declaration of Human Rights and Article 8 of the European Convention on Human Rights, among other domestic, regional and

international instruments. The right of a refugee to apply for family reunification is protected by s. 18 of the Refugee Act 1996 and

under Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification. Recital 4

of that Directive provides as follows:-

“Family reunification is a necessary way of making family life possible. It helps to create sociocultural stability facilitating

the integration of third country nationals in the Member State, which also serves to promote economic and social

cohesion, a fundamental Community objective […].”

15. Thus, family reunification is not only a way of bringing families back together, but it is also essential to facilitate the integration of

third-country nationals into the State and into the EU. Refugees finding themselves alone in a foreign country which has admitted

them, traumatised by the events that brought them there, more than ever need the society and support of their immediate family.

Every effort must be made to ensure such reunification occurs as quickly as possible.

16. In this context, the Court finds the timeline in the present case to be most disturbing. The requirements of constitutional justice

dictate that an applicant seeking administrative relief, whether in the immigration context or otherwise, is entitled to a decision within

a reasonable time (see Awe v. The Minister for Justice, Equality and Law Reform [2006] IEHC 6; Iatan and Others v. The Minister for

Justice, Equality and Law Reform and others [2006] IEHC 30; K.M. and G.D. v. The Minister for Justice, Equality and Law Reform

[2007] IEHC 234). The applicant in the present case applied for family reunification in June, 2003 and did not receive a decision until

August, 2007; there was, therefore, a delay of over 4 years. This is a most unsatisfactory state of affairs. Bearing this in mind, the

Court is of the view that the fact that it is open to the applicant to make a fresh application for family reunification does not provide

an answer to the applicant’s difficulties. According to information provided on the website of the Irish Naturalisation and Immigration

Service (INIS), “[t]he average time processing for Family Reunification applications is 24 months (as at January 2008).” Thus, if the

applicant was to submit a fresh application, each of his children would have reached the age of majority by the time a decision was

reached.

Fair Procedures

17. In the first instance, the Court notes that the facts and circumstances of the Bode case were very different to those of the

present case. The administrative IBC/05 scheme that was at issue in Bode cannot be compared to the section 18 procedure by which

the Minister assesses an application for family reunification; the IBC/05 scheme was not placed on a statutory basis whereas the right

to family reunification is grounded not only in s. 18 of the Refugee Act 1996 but also in regional and international law and practice.

The subject-matter of the Supreme Court decision in Bode is, therefore, qualitatively different to that of the present case, and the

principles set out therein cannot be applied by analogy to the present case.

18. The Court accepts that on the face of the documents submitted, questions do arise as to their veracity. It is, of course,

incumbent on the respondent to carefully examine documents submitted in support of an application for family reunification. However,

where such an examination gives rise to concern as to the validity of the documents submitted in a family reunification application,

constitutional justice requires that the Minister must enter into communication with the applicant and afford him or her an opportunity

to explain inconsistencies and/or dispel doubts in that regard. A letter requiring a satisfactory explanation would suffice.

19. In the circumstances of the present case, the respondent ought to have notified the applicant that he doubted the validity of the

birth certificates and offered a chance to comment. This is particularly so because at a particular stage in this case, when a

document had been doubted and the applicant notified of the doubts, he had been able to satisfy the Minister as to its validity and it

was decided not to revoke his refugee status.

20. For the purposes of clarity, I would reiterate that the obligation of communication between the Minister and an applicant applies

only in the unique and special situation where the Minister is unsatisfied as to the validity of documentation submitted in support of

an application for family reunification, in circumstances where that dissatisfaction has the potential to impact on the Minister’s final

decision in the matter. Failure to elicit a possibly complete answer could, after all, result in a two-year delay in family reunification

while the applicant made a new application, as suggested by the respondent. The Irish Constitution, which places such importance on

family unity, could not countenance such an injustice. This in no way impacts upon the decided case law of the Court in relation to

the obligations of decision-makers in the statutory asylum process who are, in general, under no obligation to enter into a debate or

correspondence with an applicant. As is well established, the requirement of fair procedures may be different in relation to different

types of applications.

Conclusion

21. In the light of the foregoing, I am satisfied that the Minister has acted unlawfully and in breach of fair procedures and I will grant

the reliefs sought. An order of certiorari will be granted quashing the Minister’s decision of 29th August, 2007; I will also grant a

declaration that the said decision was unlawful; and I will remit the application for family reunification for reconsideration by the

Minister. It is incumbent on the Minister to consider the explanations proffered by the applicant, and it is imperative that those

involved in the decision-making process act urgently, in the light of the unacceptable period of delay that has already elapsed. I

would also express considerable doubt as to whether, save for exceptional circumstances, a two year delay in arranging the

reunification of the family of a person granted refugee status is an acceptable delay in the light of both Article 8 of the European

Convention on Human Rights and the role of the family which is enshrined at the heart of the Irish Constitution.