AMS v Minister for Justice and Equality

A.M.S. v Minister for Justice and Equality
Coat of arms of Ireland
Court	Supreme Court of Ireland
Decided	20 November 2014
Citation(s)	[2014] IESC S65; [2015] 1 ILRM 170
Case history
Appealed from	High Court
Case opinions
Held that s. 18(4) of the Refugee Act 1996 allows the Minister for Justice and Equality to assess the financial burden that a refugee's qualified dependents will put on the State, in regards to the application for their entry.
Court membership
Judges sitting	Denham C.J., Murray, Hardiman, Clarke, Dunne JJ.
Case opinions
Decision by	Mr. Justice Clarke
Keywords
Immigration Refugee Status Family Reunification Judicial Review Proceedings Refugee Act 1996, s. 18 Proportionality of discretion Economic considerations

A.M.S. v Minister for Justice and Equality [2014] IESC 65, [2015] 1 I.L.R.M. 170^[1] was an Irish Supreme Court case in which the Court held that s.18 (4) of the Refugee Act 1996^[2] allowed the Minister for Justice to evaluate the financial burden that a refugee's dependents may put on the State, whilst determining an application for entry.^[3][4]

Background[]

Under the Refugee Act 1996, a family member of a refugee could apply for family reunification. There are two classes of members as identified by the relevant legislation; ss.18 (4) of the Refugee Act 1996. Section 18(3) states that automatic entitlement to the reunification is accorded to spouses, unmarried minors and parents of minor refugees. Section 18(4) of the Act, states that in the case of family members outside of the above mentioned, there is discretion as to the according of reunification. A.M.S. v Minister for Justice deals with family members falling outside s.18(3).

The Applicant, Mr. S., a Somalian citizen born in 1985, arrived in Ireland seeking asylum in May 2007 and was granted refugee status in January 2009. Mr. S. applied to the Minister for Justice, under s. 18 of the Act, seeking family reunification for a number of people, namely; his wife, his mother, his daughter, two of his sisters, and two brothers. Mr. S completed the necessary application forms without the assistance of a Lawyer. In his application Mr. S. stated that he, and the above mentioned family members, had lived as one unit back in Somalia. He stated that the mentioned family members were located in refugee camp out of Mogadishu. Whilst completing a questionnaire, Mr. S failed to answer a question "seeking information on financial dependency on the part of the relevant family members towards him".^[1]: 2.1 Mr. S stated that no family members mentioned were employed at the time of the application. He stated that he was seeking for a job, which would provide for him and the applied for family members. He did not reply to a question on social welfare benefits. It is on all this information that a report was drafted and provided to the Minister for Justice on 1 September 2009, after having been considered by the Office of the Refugee Applications Commissioner (ORAC).

In early 2010, Mr. S. received the news that his daughter and one of his brothers had died in a bomb attack while the family were leaving the refugee camp in Mogadishu, heading towards the Ethiopian border. Mr. S obtained a solicitor that same year. The solicitor provided the minister with additional documents in support of Mr. S.'s application. The minister was informed that Mr. S.'s family was undocumented in Ethiopia, and renting an apartment in Addis Ababa, with financial aid from Mr. S. The minister was informed of Mr. S.'s mother's deteriorating health. She suffered from hypertension, chronic liver disease, chronic rheumatism, dementia and depression.

In 2011, Mr. S.'s solicitor wrote to the minister, seeking a decision be issued within eight days, to which the minister replied that he required additional information in order to come to a decision. On 4 May 2011, Mr. S was granted the reunification for his wife, as according to s.18(3) of the Act. However, reunification was denied in respect to the remaining family members, as by s.18(4) of the Act. The denied family members applied a second time, following a second denial decision made July 2012. The applicant sought to quash the second denial by means of judicial review. These reviews were in relation to Mr. S.'s mother and sister. These were successful before the High Court in A.M.S. v Minister for Justice and Equality [2014] IEHC 57.^[5] This judgment was appealed by the minister to the Supreme Court.

It was established that the Mr. S.'s mother and sister were financially dependent on Mr. S. However, as Mr. S.'s only income was his social welfare payments, the minister deemed that the reunification would be a financial burden to the State.

Issues[]

The first issue relevant to this appeal concerns the determination of the proper interpretation of s. 18 of the Refugee Act 1996. The second issue was the question of proportionality. The principle of proportionality must have been applied by the minister in his refusing the family reunification of Mr. S.'s family members.^{[citation needed]}

Judgment of the Supreme Court[]

The judgment was delivered by Frank Clarke. He held that s. 18(4) of the Act provides the minister with discretionary powers in regards to consideration of cases, during the assessment of a refugee's application for family reunification. The minister was found to possess the power to decide whether or not the refugee's dependents would prove to be a financial burden on the State.

The court thus overruled the judgment of Colm Mac Eochaidh in the High Court that it was not within the minister's power to consider whether a reunification would result in a financial burden on the State. The principal issue was instead the proportionality of the minister's discretion:

"I am satisfied that MacEochaidh J. was correct to conclude that the decision of the minister to refuse family reunification in respect of the mother and the minor sister of Mr. S was disproportionate on the facts of this case. No wider financial consequences other than those applicable to just those persons were taken into account."^[1]: 8.2

The Court found the minister's balancing exercise to have been flawed, and thus his appeal was dismissed.

Subsequent developments[]

In establishing that each case must be assessed independently, A.M.S. v Minister for Justice and Equality may have overturned an earlier decision Hassan v Minister for Justice, Equality and Law Reform^[6] in which the court held that the minister has the power to deny an application for family reunification, as long as the applicant is found not have future means to support his dependents without State intervention.^[7]

References[]