Access to Justice
Access to Justice |
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Patricia Brazil LLB, MLitt, Barrister-at-Law, Averil Deverell Lecturer in Law Trinity College Dublin Introduction Article 41.1.1° of the Irish Constitution recognises the family as “the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.” In view of its special status, the State is committed by Article 41.1.2° to “protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.” This emphasis on the family at the heart of social and civic life is not unique to Irish law, but is in fact a familiar refrain in international human rights instruments; as Jastram and Newland note, “the role of the family as a central unit of human society is entrenched in virtually all cultures and traditions, including the modern, universal legal ‘culture’ of human rights”.[1] For refugees, the right to family unity, and to family reunification,[2] is of crucial importance. Separation from family members can have numerous detrimental effects, from hindering a refugee’s ability to overcome the traumatic effect of his or her experiences by reason of the ongoing separation from loved ones, to acting as a barrier to integration in the host State. The significant growth in refugee applications in Ireland since the 1990s has been well documented.[3] For those applicants who were ultimately recognised as refugees in the State, family reunification is of vital significance, yet a number of difficulties in the law and practice governing this right have become apparent. This article proposes to explore the right to family reunification in the international and domestic legal contexts. It is intended to highlight a number of difficulties which have arisen in relation to family reunification in Ireland in recent times, and to make proposals designed to ensure that refugee family reunification is informed by a rights based perspective in both law and practice. A Right to Family Reunification? Given the universal acceptance of the importance of the family unit, it is somewhat surprising that the Convention Relating to the Status of Refugees 1951 makes no reference to the concept of family reunification. Instead, the issue was dealt with by the Final Act of the Conference Plenipotentiaries at Recommendation B, where it was recommended that governments take the necessary measures for the protection of the refugee’s family, especially with a view to “(1) ensuring that the unity of the refugee’s family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country, and (2) the protection of refugees who are minors, in particular unaccompanied children and girls.”[4] While many international and regional human rights instruments recognise the right to family life and prohibit unlawful or arbitrary interference with family rights,[5] the only explicit recognition of a right to family reunification can be found in Article 10 of the Convention on the Rights of the Child, which states that “applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States in a positive, humane and expeditious manner”. Despite the absence of a mandatory regime for family reunification under international law,[6] “once formally recognized as a Convention refugee, most developed countries grant refugees a formal legal right to be reunited with family members”.[7] Directive 2003/86/EC of 22 September 2003 on the right to family reunification sought to harmonise the law of the European Union member states on conditions for admission and residence of family members of third country nationals, including refugees. However, Ireland has exercised its right to opt out of this Directive, and the right to refugee family reunification under Irish law is thus exclusively governed by the provisions of section 18 of the Refugee Act 1996[8]. Section 18 provides for two classes of family reunification: under section 18(3)(b) there is a mandatory entitlement (subject only to national security or public policy) to family reunification in respect of a refugee’s spouse, the parents of a refugee who is under the age of 18 on the date of application for family reunification, or the children of a refugee who are under the age of 18 and unmarried on the date of application for family reunification. The second class of family reunification is on a discretionary basis only, and relates to dependent members of the refugee’s family who are defined in section 18(4)(b) as “any grandparent, parent, brother, sister, child, grandchild, ward or guardian of the refugee who is dependent on the refugee or is suffering from a mental or physical disability to such extent that it is not reasonable for him or her to maintain himself or herself fully.” The procedure for applications for family reunification is set out in bare detail in section 18(1)-(3): a refugee in respect of whom a declaration is in force may apply to the Minister for Justice for permission to be granted to his or her family to enter and reside in the State. Such application is referred to the Refugee Applications Commissioner which is required to investigate the application and to submit a report in writing to the Minister, which report “shall set out the relationship between the refugee concerned and the person the subject of the application and the domestic circumstances of the person”.[9] If the Minister is satisfied upon receipt of the Commissioner’s report that the person is a member of the family of the refugee, the Minister shall grant permission to the person to enter and reside in the State in the case of family members as defined in section 18(3), or may grant permission to the person to enter and reside in the State in the case of dependent members of the family as provided by section 18(4)(b). Section 18 is remarkably lacking in detail in respect of crucial aspects of the family reunification process: what is the extent and nature of the “investigation” to be conducted by the Refugee Applications Commissioner? Is the Minister required, or even permitted, to conduct his own investigations upon receipt of the Commissioner’s report? Does the family reunification procedure permit or require oral interview, or must it be an application on the papers only? What is the definition of “dependency”? The failure to lay down clear and transparent guidelines for the processing, investigation and determination of family reunification applications has resulted in a number of difficulties in recent times, some of which are addressed below. Delay As Professor Hathaway notes, “there are often prolonged delays in authorising family reunification in developed states.”[10] Staver reports that “20% of family reunification applications for refugees in Canada take more than 32 months to process for applicants from West Africa, more than 39 months from Pakistan and more than 37 months from Sri Lanka.”[11] Jastram and Newland attribute the growing phenomenon of extensive delays in processing family reunification applications to “heightened security concerns following the 11 September 2001 terrorist attacks in the United States” as a result of which “family reunification procedures have become stricter and more protracted as more concrete evidence of family relationships and identity are demanded”.[12] Whilst national security concerns may have contributed to the growing problem of delays in the family reunification system in recent times, such delay has long been of concern to the UNHCR. It is twenty eight years since the UNHCR Executive Committee recognised the desirability that “countries of asylum and countries of origin support the efforts of the High Commissioner to ensure that the reunification of separated refugee families takes place with the least possible delay,”[13] and ten years since it called for “prioritisation of family unity issues at an early stage in all refugee applications.”[14] Similarly, the European Council on Refugees and Exiles (ECRE) has recommended that “[f]amily reunification should take place with the least possible delay and within a period of six months from the time an application is made”.[15] In a recent report on refugee integration in Ireland, UNHCR was critical of delays which were arising in the family reunification system in Ireland, reporting that “the main concern in relation to family reunification and integration is the processing time which can take up to 18 or 24 months.”[16] Anecdotal evidence suggests that some applications take even longer; in at least one case there was a delay of over three years in the issuing of visas on foot of a successful family reunification application.[17] Section 18 of the Refugee Act 1996 contains no guidelines as to the length of time for processing family reunification applications. However, a recent decision of the High Court may be of some assistance to refugees awaiting a decision on a family reunification application. In the case of M v Minister for Justice, Equality and Law Reform,[18] the applicants complained of delay in the determination by the Minister of an application for permission to reside in the State on the basis of marriage to an Irish national. The High Court (Edwards J.) held that six months was an acceptable period of time for the initial stage of the process, namely “gathering of information and the making of enquiries”. In respect of the second stage of the process, namely the making of the decision itself, Edwards J. held: Thus, Edwards J. concluded that “[i]f the applicant were kept waiting for a decision longer than 12 months I would have no hesitation in finding the delay to be unreasonable and, being unjustifiable notwithstanding any scarcity of resources, unconscionable.” It is submitted that this decision has clear ramifications for the family reunification process, as the importance of the right to spousal reunification at issue in M v Minister for Justice can be equated to the right to family reunification for refugees. Indeed, a recent High Court decision would appear to have accepted the urgency with which family reunification must be treated. In POT v Minister for Justice, Equality and Law Reform,[19] Hedigan J. commented on the four year delay in determining the applicant’s application for family reunification as follows: It is thus submitted that the present practice of the Department of Justice, in advising applicants for family reunification that such applications take in the region of 24 months to determine, is prima facie in breach of the right to a decision within a reasonable period of time. Investigation of Applications As noted above, there is a regrettable lack of clarity in section 18 of the Refugee Act 1996 as to the procedures governing the investigation of an application for family reunification. The practice is that upon receipt of a request from the Minister for Justice to investigate an application for family reunification, the Refugee Applications Commissioner issues to the applicant a questionnaire designed to elicit information as to the nature of the relationship, the present location of the relevant family members and their circumstances. Once the applicant has completed the questionnaire and returned it to the Commissioner, in some cases the Commissioner may raise queries by correspondence based on the information given in the questionnaire; it is common for documentary evidence of relationship and/or dependency etc to be sought in this manner. The Commissioner will subsequently furnish a report on its findings to the Minister pursuant to section 18(2) of the 1996 Act. This report is not required to be furnished to the applicant. However, in a number of recent cases, it has become apparent that concerns had arisen in relation to information furnished by the applicant in relation to the family reunification application. Such concerns can relate to the nature of the relationship, the location of the relevant family members or the true extent of the claimed relationship of dependency between them. The difficulty arises in such cases where neither the Commissioner nor the Minister alerts the applicant to such concerns, thus depriving the refugee of the ability to satisfactorily address such concerns. The case of POT v Minister for Justice, Equality and Law Reform[20] is a classic illustration of such a scenario. The applicant was recognised as a refugee in March 2003. He applied for family reunification in June 2003, which application was eventually refused in August 2007, over four years later. The reasons given for the refusal related inter alia to concerns as to the authenticity of birth certificates furnished in support of the application, and the absence of evidence of dependency in respect of one of the applicant’s family members. Hedigan J. accepted that the Minister must carefully examine documents submitted in support of an application for family reunification, but held that where such an examination gives rise to concern as to the validity of the documents submitted, 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. It was held that a letter requiring a satisfactory explanation would be sufficient. Hedigan J emphasised that: This is an important affirmation of the importance of the rights at issue in an application for family reunification and the heightened obligations on the Minister for Justice when dealing with such applications. Fraud and the Requirement of Documentary Evidence Another issue which has also arisen in recent times relates to concerns as to the prevalence of fraud in the family reunification system. In the case of the Somali refugee (referred to above) who received an apology for the three year delay in issuing family reunification visas, it was subsequently reported that the refugee was arrested for suspected identity fraud as a result of concerns that “the woman's relationship to some of her family members may not be as described by her in the application for family reunion”.[21] Such concerns are not unique to this jurisdiction; Staver notes that “according to Taitz et al., ‘58% of Somalis given DNA testing by Danish authorities between January, 1997, and September, 1998, received a negative result.”[22] Similar concerns in the United States have led to the suspension of the Family Reunification (Priority 3) Program.[23] It must be recognised that in some cases, a refugee applying for family reunification will be unable to obtain documentary evidence in support of the application, whether as a result of the country of origin being a “failed state” such as Somalia, or because the refugee is unable to seek assistance from the authorities of the country of origin by reason of the persecution which gave rise to the refugee claim.[24] Such difficulties are recognised by ECRE, who recommend that the absence of documentary proof of relationships should not affect the credibility of the application for family reunification nor result in the application being considered fraudulent.[25] Instead, it is recommended that authorities should seek to establish plausible family links through the information provided in the family reunification application form and supporting documentation: ECRE conclude that applicants “should be given the benefit of the doubt if they can provide a credible account of the relationship that matches the information provided by family members and the explanation for any lack of documents is reasonable when considering available country information, the circumstances of flight from the country of origin and risks associated with establishing contact with authorities of the country of origin.”[26] In cases where concerns persist in relation to an application for family reunification, DNA testing may offer a means of resolving such concerns, subject to a number of caveats. Clearly, DNA testing will be unable to prove every family relationship; as ECRE note: “If DNA tests are to take place, they should be solely used as a last resort for verification of family ties in cases where doubts are so grave that the request for reunification would otherwise be denied, or when the applicants themselves request a test in lieu of an interview. Due consideration needs to be given to the tests’ limitations in view of cultural differences in the definition of ‘family’ which in some cases, might include members of a household with whom there might not exist biological links.”[27] Further concerns identified by Thomas Hammarberg, Council of Europe Commissioner for Human Rights, include the fact that: “DNA testing can have serious implications for the right to privacy. Though voluntary testing can be accepted in certain circumstances in order to prevent fraud, this activity should be carefully regulated and the sharing of obtained data should be bound by the principle of confidentiality. When testing is considered necessary the costs should be born by the requesting authorities.”[28] Similarly, Jastram and Newland refer to the increasing tendency to use DNA testing to confirm family relationships among refugees and the people with whom they seek reunification, commenting: Provided such concerns are addressed, it is submitted that DNA testing may be used in appropriate cases as a means of establishing family relationships for the purposes of family reunification applications. However, at present there is no formalised system by which such tests may be obtained in order to satisfy the Minister of a family relationship; it is submitted that in some cases, in order to fully respect the right to family reunification, the Minister may be required to put in place arrangements for such testing to be undertaken, particularly where the application for family reunification is likely to be refused absent such evidence. Whilst the Irish courts have been notoriously reticent in the imposition of positive obligations on the executive branch,[30] it is worth noting that Article 8 of the European Convention on Human Rights encompasses not only negative obligations, but in some cases also positive obligations on states to take action to ensure that the right to family life is protected.[31] Definition of “dependency” As noted above, section 18(4) of the Refugee Act 1996 confers upon the Minister a discretion to grant family reunification to “a dependent member of the family of a refugee”, with this class of family members defined in section 18(4)(b) as “any grandparent, parent, brother, sister, child, grandchild, ward or guardian of the refugee who is dependent on the refugee or is suffering from a mental or physical disability to such extent that it is not reasonable for him or her to maintain himself or herself fully.” Whilst the second limb of the definition, based on mental or physical disability, is sufficiently clear, difficulties arise in relation to the first limb of the test – what constitutes “dependency”, and how is it defined? Many commentators note that “a useful limiting factor recognised by many States in determining whether more distant family members should be reunited is dependency.”[32] While there is no consensus in international human rights law instruments, UNHCR offer the following definition: The definition of dependency under European Union law would seem to broadly accord with this approach; in Lebon[34] the European Court of Justice held that: In particular, the ECJ held that the fact that a family member had applied for social welfare did not prevent that person being regarded as a dependent family member.[36] It would appear that in some cases at least, the practice is to assess dependency for the purposes of section 18(4) on the basis of strictly financial support, without proper regard to the broader circumstances of the relationship between the refugee and the family member concerned. This can also cause difficulties in terms of proving the financial relationship; while many refugees support their family members by way of remittances, depending on the circumstances in the country where the family members reside, such remittances may be disbursed via informal channels in the absence of organised banking or financial services.[37] In a number of cases, the Department of Justice has furthermore determined that family members cannot be regarded as dependents where the refugee is him or herself dependent on social welfare. There is no basis for this requirement, and it is at least arguable that the imposition of such an additional requirement is ultra vires the provisions of section 18 of the Refugee Act 1996. Conclusions This article seeks to highlight only some of the issues currently arising in relation to family reunification. Further litigation is anticipated in the coming months on a range of issues in the family reunification process, and it is hoped that this will give rise to clarification as to the obligations on all parties in the family reunification process and the elimination of those practices which impede the right to family reunification and its lawful enjoyment by those who have been recognised as refugees in the State. As Staver notes, many of the difficulties in the family reunification process arise as a result of the location of the process within the “immigration control” sphere, instead of the adoption of the more appropriate “rights based perspective”.[38] It is worth stating that rather than imposing additional burdens, family reunification in fact benefits the host State; as noted by UNHCR, “maintaining and facilitating family unity helps to ensure the physical care, protection, emotional well-being and economic support of individual refugees and their communities. The protection that family members can give to one another multiplies the efforts of external actors. In host countries, family unity enhances refugee self-sufficiency, and lowers social and economic costs in the long term”.[39] Notwithstanding such benefits to the host State, it is submitted that the ultimate goal of all actors should be the achievement of a system which recognises the profound importance of the right to family reunification and the fact that: [1] Jastram and Newland “Family unity and refugee protection” in Feller, Turk & Nicholson (eds) Refugee Protection in International Law (Cambridge University Press 2003) at p.556. [4] Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, 189 U.N.T.S. 37, 1951, Section IV. B on the Principle of the Unity of the Family. [11] Staver “Family Reunification: A Right for Forced Migrants?” Refugee Studies Centre, Working Paper No. 51, November 2008 at p.9 citing Canadian Council for Refugee Making Speedy Family Reunification a Priority: Manifesto for Family Reunification (2007). [31] See Mowbray The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Hart 2004), Chapter 6. See also Conclusions of UNHCR Global Consultations on International Protection, Geneva Expert Roundtable, 8-9 November 2001, which concluded that “Respect for the right to family unity requires not only that States refrain from action which would result in family separations, but also that they take measures to maintain the unity of the family and reunite family members who have been separated”. |
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