I.I. (Nigeria) -v- Minister for Justice & Equality & ors [2019] IEHC 729 (29 October 2019)

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THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL AND IRELAND

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 29th day of October,

1. Sometimes litigants or their representatives come forward with an interesting legal point

brandishing an armoury of authorities, while simultaneously seeking to deflect attention

from the lack of an adequate evidential foundation for that interesting point. This is such

2. On 15th October, 2011 the applicant’s mother left the applicant in the care of a maternal

aunt. A care order was granted under s. 18 of the Child Care Act 1991 on 21st June,

2010. Thereafter the Child and Family Agency was in a position to act on the applicant’s

behalf at all material times. The applicant was granted a declaration of refugee status on

25th September, 2014. The next logical step would have been to apply for family

reunification if appropriate. It is notable that the “evidence” put forward by the applicant

as to the reasons for the failure by the CFA as next friend to seek family reunification for

a period of four years are inadequate and hearsay in nature. The evidence of Anthony

Hegarty, social worker, is certainly inadmissible hearsay. There is no explicit affidavit

evidence on the subject from either the applicant herself, after coming of age, or from her

aunt. There is no explanation of any kind on affidavit as to on what basis the aunt’s

mother (i.e., the applicant’s grandmother) embarked on a mysterious excursion to Ghana

rather than Nigeria in search of the applicant’s mother: see para. 5 of Mr. Hegarty’s

3. The applicant’s solicitor, Mary Henderson, avers at para. 8 of her affidavit that the

applicant was unable to make a family reunification application as the whereabouts of her

mother were unknown. That is again hearsay and inadmissible but in any event is totally

4. The claim is made that the parents’ whereabouts were unknown but no evidence has been

shown of adequate or reasonable efforts to make contact with the parents or family

members. There is no evidence as to when the aunt was asked to contact the parents or

why she was not asked earlier. I find that the applicant has failed to put forward

admissible evidence as to a genuine inability of the next friend or the aunt on her behalf

to contact her mother or other family members within the statutory time limit for

5. Even if I am wrong about that, and even if the applicant’s relatives were genuinely

uncontactable, there was nothing stopping the applicant’s next friend, the Child and

Family Agency, from applying for family reunification within the statutory period of twelve

months from the commencement of the International Protection Act 2015 on the basis

that they were endeavouring to make contact with the applicant’s relatives, as the

respondents’ evidence makes clear. The Child and Family Agency as a statutory body

must be presumed to know its legal responsibilities and the entitlements of children in its

care. There is certainly no averment on its behalf that it was unaware of the twelve-

month time limit following commencement of the 2015 Act, and it would be strange to

6. On 31st December, 2016, the Refugee Act 1996 was repealed on the commencement of

the 2015 Act. No application had been made under the 1996 Act on behalf of the

applicant. The Irish Naturalisation and Immigration Service published a notice on its

website on 31st August, 2017 indicating that persons previously granted a declaration of

refugee status were entitled to make an application for family reunification up to 30th

December, 2017. No such application was made on behalf of this applicant by that time.

The social work department of the Child and Family Agency did not make an application

on the applicant’s behalf for family reunification until July, 2018 when the applicant was

7. On 8th August, 2018, the Department of Justice and Equality requested full details of all

family members in respect of whom family reunification was sought and that was replied

to on 27th August, 2018. On 3rd September, 2018 the Department refused the

application on the grounds that it was not submitted within twelve months of the

8. The applicant has to this day made no application under the non-EEA policy document or

for grant of visas for family members even without prejudice to the present proceedings,

which might have achieved the object sought, namely family reunification. Instead of

that simple and straightforward available step, she goes for the nuclear option of seeking

to have the legislation struck down, not just as it applies to her but urbi et orbi.

9. The proceedings were filed on 11th February, 2019, out of time, although the State is not

particularly contesting the time issue so it might be churlish of me to hold against the

applicant on that ground alone. I granted leave on 15th February, 2019, the proceedings

having been instituted through the applicant’s next friend and social worker. The primary

reliefs sought are certiorari of the decision to refuse family reunification and a declaration

that the Act is contrary to the Constitution, the ECHR and EU law, as well as other related

10. On 15th May, 2019 the applicant came of age. She then swore an affidavit on 18th June,

2019 which is one page long, does not purport to verify the statement of grounds and

says nothing whatsoever about the huge evidential gaps in relation to the issue of the

11. I have now received submissions from Mr. Michael Lynn S.C. (with Ms. Patricia Brazil B.L.)

for the applicant and from Mr. David Conlan Smyth S.C. (with Ms. Emily Farrell B.L.) for

The claim that the applicant has a vested right under a repealed enactment

12. The only basis of the challenge to the decision in question, apart from a challenge to the

legislation, is that the applicant had a vested right to apply under the Refugee Act 1996 s.

18(3) without any time limit and that she carried this right forward for an unlimited period

13. This “vested rights” argument, relying on a very wide interpretation of s. 27 of the

Interpretation Act 2005, would deprive the concept of repeal of much of its meaning,

creating intolerable uncertainty and giving the Refugee Act 1996 a ghostly after-life such

that years or even decades after its repeal, it could violently jerk back into life without

14. A similar argument urging a wide interpretation of s. 27 of the 2005 Act was rejected in

S.G.(Albania) v. Minister for Justice and Equality [2018] IEHC 184 [2018] 3 JIC 2311

(Unreported, High Court, 23rd March, 2018) and V.B. v. Minister for Justice and Equality

[2019] IEHC 55 (Unreported, Keane J., 1st February, 2019), followed in X v. Minister for

Justice and Equality [2019] IEHC 284 (Unreported, Barrett J., 3rd May, 2019). Such a

conclusion is reinforced in the present context by the transitional provisions of s. 70(14)

of the 2015 Act which continue pipeline applications for family reunification. That is

consistent with an intention not to continue indefinitely a right to continue to make fresh

15. Paragraph 25 of the State’s submissions in the present case relies on S.G. in support of

the respondents’ argument here, stating that I “followed the judgment of O’Donnell J. in

[Minister for Justice and Equality v.] Tobin (No. 2) [[2012] IESC 37] in S.G. (Albania) v.

Minister for Justice and Equality [2018] IEHC 184 (para. 33) (under appeal to the

Supreme Court), and noted that “the type of right at issue for s. 27 to be activated ‘must

not have been a mere right to take advantage of the enactment now repealed’ (Bennion,

p. 259).” It is submitted that the 2015 Act protected the right of a declared refugee to

complete the process under section 18, Refugee Act, 1996, but it repealed the right of

16. One can’t help noticing that the phrase in this submission “under appeal to the Supreme

Court” is not followed by words along the lines of “at the instance of the State which is

contending in that appeal that the reasoning in S.G., which the State relies on here, is

totally incorrect”. Nobody likes hearing “I told you so”, but the present case is a good

instance of the sort of benefit that accrues to the State and the public interest if repeal

means effective repeal. That benefit can only be achieved by taking a restrictive view of

the ongoing post-repeal right to rely on the repealed Act that is referred to in s. 27 of the

2005 Act. Counsel in the present case were of course obliged by professional obligation

and Practice Direction HC81 to own up to any relevant authorities (even if under appeal).

Having said that it does not particularly surprise me that the State is relying on S.G. in

the present case because that decision generally benefits the State. The actual outcome

in S.G. was the very unusual minority situation where such an argument works against

the State, but that was (in my view) only because of a combination of flawed drafting and

a misconceived decision not to own the problem but instead to come up with an

implausible and unsustainable legal response when that flaw emerged, contributed to by

back-covering fear-mongering about the ramifications, even though there are virtually no

ramifications because an unchallenged deportation order, no matter how defective or

17. The only unfortunate feature of the timing here is that the State are now relying on my

decision in S.G. after the Supreme Court has reserved judgment on their appeal against

it. In order that the Supreme Court has all the relevant information at its disposal, I feel

that I owe it to that court to say that it may conceivably be of benefit if the parties in S.G.

draw the present judgment to that court’s attention before it finalises its deliberations,

although I make the present suggestion with all due diffidence, deference, tentativeness

and hesitation and only to the extent, if any, that it is helpful to the Supreme Court. I am

obviously totally indifferent to the outcome as such of the appeal in S.G., but am not

indifferent to the entitlement of the Oireachtas to have repeal interpreted as meaning

effective repeal, without a ghostly after-life being injected into the dead enactment.

Subject, by definition, to the Supreme Court, that entitlement would be undermined by a

wide interpretation of s. 27 of the 2005 Act, as argued against by the executive here, and

18. The conclusion is that here, all that the applicant had was a right to take advantage of an

enactment. That right ended on repeal, and was not the sort of vested right preserved by

s. 27 of the 2005 Act. The State can’t credibly be right in both S.G. and in this case; and

in fairness to Mr. Conlan Smyth he wisely did not attempt to reconcile the irreconcilable.

One could look far and wide without finding a better forensic example of sheer

unprincipled expediency. The whole rickety legal confidence trick depends entirely on

The applicant has not laid the evidential basis for the challenge mounted here

19. Having regard to the factual conclusions above, the challenge to the legislation does not

arise here because that challenge is premised on the assertion that the applicant was

simply unable to comply with the legislation. In fact that assertion on closer inspection

has not been stood up with the appropriate and necessary evidential foundation in the

present case. Indeed there is no admissible evidence at all of such inability. And

independently of that, even if the relatives were genuinely uncontactable, the application

could have been made anyway within the time limits, on the basis that inquiries were

being made. Thus the challenge fails in limine. The tedious approach of “never mind the

facts, look at the interesting law” has no place in the practical business of litigation.

20. If I am wrong about that I will turn to deal with the merits of that challenge. The correct

sequence in dealing with a multidimensional challenge such as this would seem to be as

follows: firstly, the preliminary issue regarding alternative remedies; secondly, the

constitutional challenge; thirdly, the EU law issue, because questions of EU law at least if

there could be recourse to the CJEU should only really arise if “necessary” (art. 267 of the

TFEU), that is if the matter cannot be disposed of on domestic law grounds; and finally,

the ECHR because remedies under the 2003 Act only properly arise if there is no other

21. I dealt with a similar argument in R.C. (Afghanistan) v. Minister for Justice and Equality

[2019] IEHC 65 [2019] 2 JIC 0109 (Unreported, High Court, 1st February, 2019) in

dismissing a challenge to s. 56(9) of the 2015 Act. Many of the same reasons apply in

the s. 56(8) context, which is the one that presents itself here. The applicant has an

alternative remedy under the non-statutory policy document or by applying for visas

22. Admittedly Barrett J. opined to the contrary in A and S. v. Minister for Justice and Equality

[2019] IEHC 547 (Unreported, High Court, 17th July, 2019), but given that he did not

refer under this heading to R.C. at all (something Mr. Lynn was strangely hesitant to

acknowledge), let alone engage with its reasoning, that decision does not carry a very

great deal of jurisprudential weight, as further discussed in I.H. v. Minister for Justice and

Equality (Unreported, High Court, 21st October, 2019). In any event, the legitimacy of

considering alternative immigration remedies has now been clarified by the Court of

Appeal per Baker J. in M.A.M. v. Minister for Justice and Equality [2019] IECA 116

23. It would be a breach of the separation of powers to strike down a statute if an applicant

can obtain the substance of what he or she is looking for through some other reasonably

available procedure: see North East Pylon Pressure Campaign v. An Bord Pleanála [2016]

IEHC 300 [2016] 5 JIC 1215 (Unreported, High Court, 12th May, 2016). The conclusion

here is that as there is a separate procedure which could potentially achieve the family

reunification for the applicant’s relatives, particularly if the age of an applicant is a factor

to be taken into account in that process. It would be an improvident use of the power to

strike down legislation to embark on consideration of a challenge to that legislation where

the applicant has not even applied under that separate procedure, let alone been refused.

24. If I am wrong about that, I will address the substance of the challenge.

25. It is not a breach of any particular constitutional right to have a twelve-month time limit

for family reunification or even to have a time limit that legal guardians must exercise on

behalf of a person who is a minor at the time. While we are familiar in say the personal

injuries concept that limitation periods only run from attaining one’s majority, that is not

an absolute constitutional requirement, especially if there is someone in an effective

position to assert rights on a child’s behalf during his or her minority. (By way of

postscript, a reductio ad absurdum of the argument that limitation periods can’t run

during one’s minority might be that on turning 18, a person would have 8 weeks to

challenge any and all planning appeal decisions made during the previous 18 years.) The

statement of grounds at relief (d) argues to the contrary, relying on equality under Article

40.1, personal rights under Article 40.3 and family rights under Article 41. But there is

no inherent constitutional right to family reunification. The mere fact that a person has

been admitted into the State for some purpose including international protection does not

create a constitutional obligation on the State to admit any or all family members. To put

it another way, the admission of one person into the State on the specific basis of a grant

of international protection does not generate a free-standing constitutional right on the

part of others to enter the State which they did not otherwise possess. It is worth noting

that for the purposes of the Geneva Convention, family reunification is encouraged by

interested agencies but is not a legal obligation. It is hard to see how it can be said to be

a matter of fundamental human rights such that it must be viewed as an implied

constitutional right. In the absence of a substantive constitutional entitlement to family

reunification, the Act is not a breach of Article 40.3 or 41. Even if there is such a right, a

generous twelve-month time limit is not disproportionate and thus no breach of

substantive rights arises, and is well within the margin of appreciation of the Oireachtas

so it is not contrary to Article 40.1, nor in any event does it relate to the human

personality. Every time limit is to some extent arbitrary, so unless and until the day

comes when the appellate courts decide that there can be no such thing as a fixed time

limit, the possibility of people falling marginally outside the line has to follow as a

The State is not implementing EU law in making the impugned decision

26. Objection is take that the statute is in breach of art. 23 of Council Directive 2004/83 as

interpreted in the light of art. 7, 9, 18, 21 and 24 of the EU Charter on Fundamental

Rights. Unfortunately for this applicant, the type of family reunification sought here does

not come within art. 23 of the Qualification Directive. Mr. Lynn implausibly suggests that

art. 23 should be interpreted to mean something that it clearly does not say. Purposive

interpretation is not to be distorted into substantive re-writing of EU legislation. That

approach can only be maintained on the Alice in Wonderland premise that words mean

what one chooses them to mean. The fact that this application falls outside art. 23 has

the consequence that the State is not implementing EU law in deciding on this family

reunification application and therefore the Charter is simply not engaged: see art. 51(1)

27. In R.C. I rejected a corresponding ECHR argument relating to post-flight marriages. Mr.

Lynn places huge reliance on divergences in the authority as between R.C. and A. and S.

As it happens, Mr. Lynn and Ms. Brazil were counsel in A. and S. They argued there that I

had overlooked s. 4 of the European Convention on Human Rights Act 2003, waving the

decision in D.P.P. v. O'Brien [2010] IECCA 103, which was theatrically unearthed by their

side during the course of the hearing. Mr. Lynn helpfully now concedes that when he did

so he did not add that while I did not mention the dictum of Macken J. in the Court of

Criminal Appeal in O’Brien, I did mention in para. 21 of R.C a dictum of Fennelly J. in the

Supreme Court in McD. v. P.L. [2010] 2 IR 199 to the same effect. Thus, not

mentioning O’Brien was irrelevant. Mr. Lynn hung his hat on the lack of reference in R.C.

to s. 4 of the 2003 Act, but that was not an issue in R.C. The 2003 Act wasn’t overlooked

and anyway is mentioned in the judgment, but the issue didn’t turn on s. 4 because it

was not contended that the court should not “take due account” of the principles laid

down by Strasbourg decisions (indeed he doesn’t say that I didn’t take account of or have

regard to such principles in R.C). The issue was rather whether such regard should

slavish. The question is whether the court should adopt the nodding-dog approach to

Strasbourg jurisprudence that Mr. Lynn urged on Barrett J. on a logically bogus basis, or

whether some element of respectful dialogue with Strasbourg is legitimate. I certainly

favour the latter approach. Counsel have therefore, no doubt inadvertently, contributed

to the creation of an inconsistency in caselaw, so it goes somewhat against the grain to

place much weight on counsel’s reliance on that convenient self-encouraged

28. Leaving that minor spat aside however, the alleged disproportionality of the provision in

art. 8 terms has not been made out. There was a time window to apply which was not

29. It is worth adding that the exhaustion of remedies argument is particularly potent in the

Strasbourg context: see art. 35 of the ECHR. Here the applicant’s failure to even apply

under the non-statutory scheme means she has not exhausted all remedies. Admittedly

that relates to the admissibility of a complaint to Strasbourg rather than incorporation of

the ECHR in national law but nonetheless exhaustion of remedies is a contextual matter

that pervades Strasbourg caselaw. The ECHR is not concerned with condemning

legislation as such rather than addressing violations on an individual basis. The

declaration of incompatibility is a purely domestic invention and not one with any great

principled basis in the ECHR itself. While the logic of the declaration of incompatibility is

questionable, given that it has no Strasbourg counterpart, such a declaration cannot arise

unless a violation of the Convention is inevitable under a particular statute and that is

certainly not the case here. Given that the time limits for application under the ECHR

itself are non-extendable no matter what extenuating circumstances might exist, it seems

implausible that Strasbourg would condemn a generous fixed time limit of one year for

family reunification (even longer in transitional cases such as that of this applicant),

especially where a non-time-limited non-statutory application process as a fall-back is

available. Under those circumstances the ECHR argument cannot succeed.

30. The application is dismissed.

Result: Application dismissed

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