If you are a refugee, a citizen of another European state, or an Irish person returning to Ireland from another EU state, there are laws that provide you with the right to be joined in Ireland by your non-EU family member. Unfortunately, for every other citizen and resident of Ireland, there is no legislation governing whether family members can join you in Ireland. Applications are made on an ad hoc basis to the Department of Justice (INIS), and there is no appeals process from negative decisions. As a result, tons of cases end up in the High Court Judicial Review process. This is expensive and inefficient (for all taxpayers), and unfair on the families who wait years for decisions.
The Immigrant Council of Ireland are among the organisations who have been campaigning to have this changed, so that some rules and procedures are put into place to bring some order to the mess. The idea is to introduce family unity rights into the Immigration Bill which is currently being drafted by Minister Alan Shatter’s Department of Justice & Equality. You can sign a petition to show you support this idea, here.
In the meantime, what are the rules?
Refugees
The Refugee Act 1996 obliges the state to grant family reunification to the spouses and children of refugees. There are no grounds in Irish law to suggest that the acquisition by a refugee of Irish citizenship affects that obligation – in other words, a refugee who is also a citizen should still be treated as a refugee. Unfortunately, some refugees have had to fight for that right. The state has a further discretion under the Act to grant family reunification to other, dependent, members of a refugee’s family. Where the decision whether to exercise that discretion is made in respect of a member of a family that is protected by the Constitution, it must be exercised reasonably and the decision must be proportionate.
Family members of Irish citizens and legal residents
Irish citizens and residents of Ireland (who are not refugees) can request a discretionary permission for a member of their family to enter or be in the state, under section 4 of the Immigration Act of 2004. The discretionary nature of such permissions is likewise affected by constitutional considerations.
So Irish citizens, residents of Ireland, and refugees are protected by the Constitution, and Refugees can look to the Refugee Act as well. What about European law?
The protections offered by Article 8 of the European Convention on Human Rights provide protections to all citizens and legal residents of European states. These protections are treated by Irish courts as secondary to or complimentary to the Constitution. However, the decisions of the European courts in cases dealing with Article 8 rights offer relevant guidance as to what factors will affect the balancing of rights in cases concerning family life as well as immigration.
Finally of course, the EU Treaties protect European citizens who wish to work in other EU countries, and their non-EU family members will benefit from family reunification rights under the treaties. Irish citizens wishing to bring a non-EU family member with them to Ireland cannot benefit from EU law unless they have lived with that person in another EU country before.
If there are no rules, just the Constitution and the Convention to guide them, how to they decide who should get permission?
Decision makers (the INIS and the High Court) are required to evaluate the matrix of the circumstances in each case. In other words, they will examine a whole lot of factors, and seek to achieve a fair balance between the rights of the family members and the right of the state to decide who can live within its borders.
The three big questions that must be examined are:
- Is financial dependency appreciable and significant in the context of the recipients?
- Do the applicants place physical and emotional reliance on the citizen family member for example by reason of age, infirmity and/or involvement in the daily routine of family life?
- Is there any possible objective justification for refusing the permission (as against the quality of the family life interfered with)?
How do they answer these questions?
What follows is a list of the factors that should be taken into account by decision makers in answering those questions. I have composed this list from the various cases listed below. These may not be the only questions that are relevant in any particular case, but answering them may help you to put together the information that you will need if you plan to make an application for residency, or to have your solicitor make an application for you:
Is financial dependency appreciable and significant in the context of the recipients?
- Are the family members currently dependent on the Irish citizen?
- Are any transfers made “appreciable and significant in the context of the recipient”?
- Is work is available to the parent in the home country?
- What skills the parent has that might assist him/her in obtaining work in the home country?
- What assets or liabilities does the parent have in the home country?
- Does he or she own a dwelling or rent one?
- What other income for example pension does he or she have?
- Does he or she have any handicap or medical condition that precludes him or her from living independently?
- Are there are any other family members who could or do look after the parent in the home country?
- Can these matters be documented?
Do the applicants place physical and emotional reliance on the citizen family member for example by reason of age, infirmity and/or involvement in the daily routine of family life?
In that context, describe
- the degree of the family relationship;
- the ages and circumstances of the family members involved;
- whether separation or deportation is an issue;
- the settled status of the relationship and whether it is a relationship which has subsisted lawfully or unlawfully (these as per Cooke J in O’Leary [2012])
- or, put another way: (as per da Silva)
- the extent to which family life would effectively be ruptured (if permission is not granted);
- the extent of the ties to the contracting State;
- whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them;
Is there any possible objective justification for refusing the permission (as against the quality of the family life interfered with)?
Ask:
- Do any of the considerations under section 4(3) apply:
- Is the non-national in a position to support himself or herself and any accompanying dependants? If not,
- Is the Irish citizen in a position to support the family members in respect of whom permission to reside is sought? Has/ can the Irish family member obtain private health insurance for the family member?
- Does the family member seeking permission to reside intend to take up employment?
- Does the family member suffer from any condition set out in the First Schedule to the Immigration Act of 2004? http://www.irishstatutebook.ie/2004/en/act/pub/0001/sched1.html#sched1
- Has the family member ever been convicted of any criminal offence?
- Does the family member require a visa to enter the state? Is the family member in the state? Does the family member have the requisite visa?
- Is the family member subject to a deportation order, an exclusion order etc? More generally, has the family member ever applied to INIS/ GNIB/ an Irish consulate or embassy for a visa or residency permission?
- Is the family member in possession of a valid passport?
- Does the family member intend to travel to Great Britain or Northern Ireland?
- Has the family member arrived in the state in the course of employment as a seaman?
- Could the family-member’s entry into or presence in the state pose a threat to national security or be contrary to public policy?
- Might the authorities have any reason to believe that the family member intends to enter the state for purposes other than those expressed by him or her?
and/or (again, as per da Silva);
- Are there any factors of immigration control (e.g. a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion? and
- Was the family life created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be precarious?
Read more about it:
EA & PA (infant & father) v Minister for Justice & Equality [2012] IEHC 371
Meadows v Minister for Justice, Equality & Law Reform [2010] IESC 3
O’Leary v Minister for Justice Equality and Law Reform [2011] IEHC 256
O’Leary & ors v Minister for Justice, Equality & Law Reform [2012] IEHC 80
Rodrigues da Silva v The Netherlands [2006] E.C.H.R. 86
RX v Minister for Justice, Equality & Law Reform [2010] IEHC 446
TM v Minister for Justice, Equality & Law Reform [2009] IEHC 500
Bunreacht na hEireann/ the Constitution of Ireland, Article 41
The United Nations Convention relating to the Status of Refugees (Article 34)
European Convention on Human Rights, Article 8
The Immigration Act 2004 (section 4)
The Refugee Act 1996 (sections 18 & 21)
O’Neill, Enda (B.L), “When is a Refugee not a Refugee”, The Researcher, Vol. 7 Issue 1, The Legal Aid Board, April 2012
Principal, Claire McCarthy Solicitor
