About this case:

• Citation:
  [2025] IESC 48
• Judgment:
  External link
• Court:
  Supreme Court

Delivering judgment for the Supreme Court yesterday, Ms Justice Elizabeth Dunne and Mr Justice Maurice Collins determined that s.56(9)(d) of the 2015 Act — which stipulates that the date on which an application for family reunification is made by a refugee, rather than the date of that person’s international protection application, as the date upon which the eligibility of minor children is determined for the purposes of family reunification — was not contrary to EU law, the European Convention on Human Rights or the Constitution.

Background

The appellant, a Zimbabwe national, applied for international protection in the State. By letter dated 2 February 2022, the first respondent informed the appellant that she had been declared a refugee pursuant to the International Protection Act 2015.

The appellant then became eligible to apply for family reunification. She submitted an application for reunification in respect of her three children, the eldest of whom was her daughter who, at that point, had already turned 18.

The appellant’s application in respect of her two young children was successful, but the application in respect of her eldest daughter was not accepted as she was over 18 on the date of the application and did not satisfy the requirements of s.56(9)(d) of the 2015 Act.

The appellant unsuccessfully applied for judicial review of the first respondent’s decision to the High Court on the basis that she was entitled to have her children’s ages assessed for family reunification purposes as of the date of her asylum claim, rather than the date of the application for family reunification.

On appeal, the Court of Appeal upheld the High Court’s finding that s. 56(9)(d) was not incompatible with the Constitution, the European Convention on Human Rights (ECHR), or EU law.

The appellant was granted leave to appeal to the Supreme Court on the issues of whether s.59(9)(d) is compatible with EU law, the Constitution and the ECHR, and whether the first respondent’s non-statutory ‘Policy Document on Non-EEA Family Reunification’ is an alternate remedy such as to preclude the appellant from succeeding.

The Supreme Court

Ms Justice Elizabeth Dunne considered that Ireland had not opted into the recast Qualifications Directive or the Family Reunification Directive which were relied upon by the appellant, and that the original Qualifications Directive applied in this jurisdiction.

Noting that the protections in Article 2 of the Qualifications Directive extended only as far as, in the case of minor children, those who were already present in the member state where the application for international protection was made, the judge found that the provisions of the Qualifications Directive were never relevant to the appellant’s or her daughter’s position.

Noting that it is a pre-requisite that the person seeking reunification can only do so once a declaration of refugee status has been granted, Ms Justice Dunne considered the “critical point” that the State was entitled to choose, as a matter of policy, the criteria by which a person can apply for reunification and was not bound by any measure of EU law in relation to its choice.

As to the constitutionality of the provision, the judge noted the Court of Appeal’s conclusion that there is no “freestanding right” to family reunification and as such, there was “no substantive constitutional right alleged to have been breached by reason of the provisions of s. 56(9)(d) of the 2015 Act. What has arisen here is a claim ‘based purely on a claim to equality’.”

Noting the appellant’s complaint of inequality of treatment by virtue of the variable time taken to process an application for international protection during which a family member could “age out”, Ms Justice Dunne recognised that no complaint as to delay on part of the first respondent had been made and that the processing of applications inevitably does not occur in the exact same timeframe in every case.

The judge further observed that the date chosen by the Oireachtas by which eligibility for reunification is to be assessed will always be a problem for applicants falling on the wrong side of the line, but that “does not mean that the Oireachtas is obliged in considering a date such as this to choose a date so that the date chosen is the most generous or inclusive date from the point of view of a potential applicant”.

As to the appellant’s ECHR arguments, Ms Justice Dunne explained that the right to family life which is protected under Article 8 thereof is not unlimited or absolute and that there was no basis upon which s.56 could be said to breach the ECHR by reason of the date selected by the Oireachtas as to when a person is a minor or an adult child.

The judge was also unconvinced that the appellant had suffered discrimination compared with others having a “protection status”, noting that the appellant was not treated differently from any other person in the same position as her, and highlighted that there was no legal basis in ECHR jurisprudence requiring the date for the assessment of eligibility for reunification to be earlier than the grant of refugee status.

As to whether the alternative remedy under the Policy Document should have been invoked by the appellant prior to bringing her application for judicial review, Ms Justice Dunne opined that “there is a material difference between the rights accruing to a family member who is allowed to enter this country on the basis of family reunification pursuant to the provisions of s. 56, and a family member who enters this country pursuant to the provisions of the Policy Document”.

The judge continued: “That being so, I would have thought that it was appropriate in the circumstances to permit a person who has been refused family reunification to challenge the basis of that decision before pursuing the alternative remedy provided for under the Policy Document.”

Mr Justice Maurice Collins, concurring with Ms Justice Dunne’s judgment, recognised that Ireland’s family reunification obligations under EU law are “specific and narrow” and that Ireland’s opting out of the Family Reunification Directive was not “some nice technical point” but one of “fundamental constitutional importance that is determinative of the EU law arguments” advanced by the appellant.

The judge pointed out:

Observing that the appellant had not identified any basis for contending that s.56(9)(d) conflicts with some applicable binding norm of EU law, Mr Justice Collins then turned to the appellant’s constitutional claim which he recognised as falling to be determined by reference to Donnelly v Minister for Social Protection [2023] 2 IR 415.

The judge found: “It was perfectly permissible for the Oireachtas to decide to limit the scope of section 56 to children of the sponsor who are minors (and unmarried) at the point when the sponsor’s entitlement to international protection has been established and to exclude those children who had ceased to be minors at that point. That reflects the ‘intrinsic link’ between protection status and the right to reunification referenced by the CJEU in A & S.”

As to the appellant’s ECHR arguments, Mr Justice Collins considered that in light of the decision in A v Minister for Justice and Equality [2021] 3 IR 140, those arguments were “doomed to failure” and that there was nothing in ECHR jurisprudence which suggested that, in opting for the date on which an application for reunification is made under s.56 as the operative date for assessing whether any children of the sponsor are minors, the State was in breach of Article 8 or Article 14 read with Article 8.

Conclusion

Accordingly, the Supreme Court dismissed the appeal.

NS v Minister for Justice & Ors [2025] IESC 48