NS v Minister for Justice: Non-Applicability of EU Family Reunification Law Absent Opt-In

1. Introduction

This commentary analyses the judgment of the Supreme Court of Ireland in NS v Minister for Justice and Equality & Ors ([2025] IESC 48, judgment of Collins J, concurring with Dunne J, 25 November 2025). The decision addresses the interface between:

Irish statutory rules on family reunification for refugees (s.56 of the International Protection Act 2015),
European Union asylum and family reunification law,
the Irish Constitution (particularly Article 29.7 and Article 40.1), and
the European Convention on Human Rights (ECHR).

The core dispute concerned whether the State was obliged—under EU law, the Constitution, or the ECHR—to admit the adult daughter of a recognised refugee under the automatic family reunification scheme in s.56 of the 2015 Act, by treating her as a “child” because she was under 18 when her mother applied for asylum, though she was over 18 when the mother later applied for family reunification.

The case is significant for at least three reasons:

It offers a clear and authoritative statement that EU family reunification law— in particular Directive 2003/86/EC and CJEU case law interpreting it—does not bind Ireland where Ireland has not opted in under Protocol No. 21 and Article 29.7 of the Constitution.
It confirms a narrow understanding of when the EU Charter of Fundamental Rights applies to national measures: the Charter is not engaged where the Oireachtas is not “implementing Union law” in the sense required by Article 51 of the Charter.
It applies the post-Donnelly approach to “pure” equality challenges under Article 40.1, upholding a bright-line age cut-off in a migration context and emphasising the limited role of the courts in reviewing legislative policy choices.

Although the principal judgment was delivered by Dunne J (not reproduced in the extract), Collins J expressly agrees with her reasoning and adds a detailed concurring analysis. Given that the Court is unanimous, his elaboration carries substantial authoritative weight.

2. Background and Legal Framework

2.1 Factual Background

The appellant, NS, was granted refugee status in Ireland in early 2022:

17 January 2022 – The International Protection Officer recommended refugee status.
2 February 2022 – NS was formally notified that she had been declared a refugee.

NS has an eldest daughter, SN, who:

Turned 18 in October 2021 (i.e. before NS was formally recognised as a refugee), and
Was outside the State throughout NS’s asylum procedure and at the time of the family reunification application.

On 4 March 2022, after recognition as a refugee, NS applied under section 56 of the International Protection Act 2015 for family reunification, seeking permission for SN to enter and reside in the State. By then, SN was already an adult.

Section 56(9)(d) defines a “child” of the “sponsor” (i.e. NS) as a “member of the family” only if, on the date of the family reunification application, the child:

is under the age of 18 years, and
is not married.

It was common case that, applying this definition literally, SN was not a “member of the family” for the purposes of s.56 because she was already 18 when the application was made. Accordingly, she fell outside the automatic statutory scheme for family reunification.

NS challenged this outcome, arguing that:

EU law required that the relevant date for assessing whether SN is a “child” should be the date of NS’s asylum application, not the later date of her family reunification application.
The statutory scheme, insofar as it excluded SN, violated the equality guarantee in Article 40.1 of the Constitution.
The exclusion was incompatible with Article 8 and Article 14 (read with Article 8) ECHR.

2.2 Section 56 of the International Protection Act 2015

Section 56 creates a statutory family reunification scheme for “qualified persons”, i.e. people who have been recognised as refugees or beneficiaries of subsidiary protection. Key elements include:

The person with protection status is the “sponsor”.
Within a prescribed period after recognition, the sponsor may apply under s.56 for permission for certain family members to enter and reside in the State.
Section 56(4) imposes a strong obligation on the Minister to grant such permission to “members of the family” of the sponsor, subject only to very narrow exceptions in s.56(7). In practical terms, qualifying family members have a near-entitlement to admission and residence.
Section 56(9) defines “member of the family” and includes, inter alia:
- a spouse of the sponsor (with conditions in s.56(9)(a));
- certain dependent relatives; and
- at s.56(9)(d), “a child of the sponsor who, on the date of the application under this section, is under the age of 18 years and is not married”.

Section 57 separately gives effect to Article 23 of the Qualification Directive (2004/83/EC), which deals with maintaining family unity in relation to family members physically present in the same Member State as the applicant for international protection. SN, who never accompanied NS and was never present in Ireland during the asylum process, plainly did not fall within this EU-based route.

2.3 EU Law Framework

2.3.1 The Qualification Directive (2004/83/EC)

The Qualification Directive sets minimum standards on qualification for refugee status and subsidiary protection, and on the “content” of that protection. Relevant provisions include:

Article 2(h) – Defines “family members” but, crucially, limits this to those family members “present in the same Member State in relation to the application for international protection”.
Article 23 – Requires Member States to ensure family unity and, subject to conditions, to allow residence for such “family members” as defined in Article 2(h).
Article 3 – Permits Member States to “introduce or retain more favourable standards for determining who qualifies as a refugee or as a person eligible for subsidiary protection, and for determining the content of international protection, in so far as those standards are compatible with this Directive.”
Recital (14) – States that recognition of refugee status is a “declaratory act” (echoed as recital (21) in the Recast Qualification Directive 2011/95/EU).

Ireland is bound by Directive 2004/83/EC and has implemented it (inter alia) through the International Protection Act 2015, but it has not opted in to the later Recast Qualification Directive 2011/95/EU, which therefore does not apply in Ireland.

2.3.2 The Family Reunification Directive (2003/86/EC)

Directive 2003/86/EC (the Family Reunification Directive) sets out a comprehensive EU framework for family reunification for third-country nationals, including special provisions in Chapter V for refugees. However:

Recital (17) expressly records that Ireland did not participate in the adoption of the Directive and is “not bound by or subject to its application”.
The Directive was adopted under the (then) Article 63(3)(a) EC on immigration policy, coupled with Protocol No. 4 (the Amsterdam opt-out protocol applicable to Ireland and the UK). This architecture has been continued and updated in Protocol No. 21 to the Treaty on the Functioning of the European Union (TFEU), which now governs Ireland’s position in the area of freedom, security and justice (AFSJ).

Ireland has never opted in to the Family Reunification Directive, whether at the time of its adoption or subsequently under post-adoption mechanisms. Consequently, neither the Directive nor any CJEU judgment interpreting it forms part of Irish law.

2.3.3 Protocol No. 21 and Article 29.7 of the Constitution

Protocol No. 21 TFEU sets out Ireland’s special position in respect of Title V TFEU (the AFSJ: asylum, immigration, civil and criminal justice cooperation, etc.):

Article 1 – Ireland does not take part in the adoption of proposed measures pursuant to Title V, subject to certain exceptions.
Article 2 – As a consequence, and subject to Articles 3, 4 and 6:
- No Title V provisions, measures adopted under Title V, international agreements under Title V, or CJEU decisions interpreting such measures are binding upon or applicable in Ireland, and
- No such measure or decision shall form part of Union law as it applies to Ireland.
Articles 3 and 4 – Permit Ireland to opt in to a proposed Title V measure at the time of adoption or to accept an already-adopted measure later.
Article 6 – Where Ireland has opted in, the normal Treaty rules apply to it in relation to that measure.

Domestically, Article 29.7 of the Constitution (inserted by the Lisbon Amendment) provides the constitutional foundation for the exercise of such opt-in rights, but crucially:

The State may exercise options or discretions under Protocol No. 21, “but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.”

The Supreme Court in Iqbal v Minister for Justice [2008] IESC 29 held that this requirement for prior approval is a “mandatory constitutional requirement”. Any legislation that purports to give effect to a Title V measure without such approval would be repugnant to the Constitution and invalid.

Collins J explicitly links this constitutional architecture to Protocol 21: EU measures in the AFSJ bind Ireland only if and to the extent that the State deliberately opts in following Oireachtas approval. The default position is non-applicability.

2.3.4 The EU Charter of Fundamental Rights

NS sought to rely on Article 18 of the Charter, which guarantees the “right to asylum … with due respect for the rules of the Geneva Convention” and in accordance with the Treaties.

However, Article 51(1) of the Charter states that it applies to Member States “only when they are implementing Union law”. Collins J emphasises this textual limit and concludes that, in enacting s.56 of the 2015 Act, the Oireachtas was not implementing Union law (since Ireland had not opted into the Family Reunification Directive). It was simply exercising its own domestic legislative competence in the area of immigration and family reunification. Therefore, the Charter does not apply.

2.4 Prior Irish Case Law

Several prior Irish decisions form the background to the Court’s reasoning:

TD v Minister for Justice [2014] IESC 29 – Recognised that the right to seek asylum in Ireland is now “anchored in EU law”, particularly through the Qualification and Procedures Directives, and thus protected by Article 18 of the Charter.
Hamza & Elkhalifa v Minister for Justice [2010] IEHC 427, VB v Minister for Justice [2019] IEHC 55, and II (Nigeria) v Minister for Justice [2019] IEHC 729 – High Court decisions consistently holding that the EU Charter does not apply to Irish statutory family reunification schemes (then under s.18 of the Refugee Act 1996 and later under s.56 of the 2015 Act).
A v Minister for Justice and Equality [2020] IESC 70 – The Supreme Court rejected both constitutional and ECHR challenges to s.56(9)(a) (spouses), holding that there is no constitutional right to refugee family reunification, and that the exclusion of certain spouses (e.g. those who marry a refugee after the asylum application) from the automatic scheme is justified.
Donnelly v Minister for Social Protection [2022] IESC 31 – Clarified the approach to “pure” equality claims under Article 40.1: a mere claim that a legislative classification is “unfair” or could have been drawn more generously does not suffice; it must be shown to be arbitrary, capricious, irrational, or based on a constitutionally illegitimate ground.
X (Michael and Emma) v Minister for Social Protection [2019] IESC 82 – Recognised that the grant of refugee status is not necessarily retrospective for all legal purposes; e.g., it does not automatically confer retroactive eligibility for social welfare benefits.

3. Issues Before the Supreme Court

The Supreme Court had to determine whether s.56(9)(d) of the International Protection Act 2015 was invalid or incompatible with higher norms because it used the date of the family reunification application rather than the date of the asylum application to decide whether a sponsor’s child is a “child” (under 18) and thus eligible for automatic reunification.

The issues can be summarised as follows:

EU Law Issue
Does EU law require Ireland to treat SN as a “child” for the purposes of s.56, on the basis that she was under 18 when NS applied for asylum, and is s.56(9)(d) therefore incompatible with EU law?
- Sub-questions included:
  - Whether the Family Reunification Directive (2003/86/EC) and CJEU decisions interpreting it (particularly A & S, BMM, and SE) have any binding relevance for Ireland.
  - Whether the declaratory nature of refugee status in EU law and Article 18 of the Charter force Ireland to use the asylum application date.
  - Whether s.56(9)(d) falls within the “more favourable standards” permitted by Article 3 of the Qualification Directive and, if so, whether that somehow “brings” it within the scope of EU law and the Charter.
Constitutional Issue (Article 40.1)
Does s.56(9)(d) violate the guarantee of equality before the law in Article 40.1, by treating differently:
- Children of a sponsor who are under 18 at the date of the family reunification application, and
- Children, like SN, who were under 18 at the time of the sponsor’s asylum application but have turned 18 by the time of the family reunification application?
NS did not claim any freestanding constitutional right to family reunification (in light of A v Minister for Justice); the claim was a “pure” equality challenge.
ECHR Issue (Articles 8 and 14)
Is s.56(9)(d), insofar as it excludes SN from automatic family reunification, incompatible with the ECHR, either:
- as a disproportionate interference with the right to respect for family life (Article 8), or
- as unjustified discrimination (Article 14) in conjunction with Article 8?

4. Summary of the Judgment

The Supreme Court unanimously dismissed the appeal. Collins J agreed with the judgment of Dunne J and added substantial further reasoning.

The Court’s core conclusions were:

EU law does not invalidate s.56(9)(d):
- Ireland is not bound by the Family Reunification Directive nor by judgments of the CJEU interpreting it, because Ireland never opted in under Protocol 4/Protocol 21 and Article 29.7.
- Section 56 of the 2015 Act was not enacted to implement EU law but is a national exercise of legislative competence, going beyond (but not required by) Article 23 of the Qualification Directive.
- The EU Charter of Fundamental Rights, including Article 18, is not engaged because the State was not “implementing Union law”.
- The declaratory nature of refugee status (recital (14) QD) is not a free‑standing principle that can constrain the Oireachtas when legislating outside the scope of EU measures binding on Ireland.
- Even within the EU family reunification law context, CJEU case law (especially BMM) supports the relevance of the date of the family reunification application as the operative date for assessing minority.
Constitutional equality challenge fails:
- Applying Donnelly, a “pure” equality challenge under Article 40.1 succeeds only where a statutory classification is arbitrary, capricious, irrational or grounded on a constitutionally illegitimate consideration, or is unrelated to the legislative purpose.
- The distinction between children who are under 18 at the time of the s.56 application and those who are already 18 is not arbitrary or irrational. It is rationally connected to the legislative aim of linking automatic family reunification to a sponsor’s recognised protection status, at a defined temporal point.
- Even if a more inclusive scheme might be “fairer”, fairness alone does not equate to unconstitutionality, and the courts are not a “super-legislature” redesigning immigration policy.
ECHR challenge fails:
- Nothing in the Strasbourg case law cited (including Hode and Abdi, Tanda‑Muzinga, and MT v Ireland) supports the proposition that Article 8 or Article 14 requires Ireland to use the asylum application date when deciding whether a refugee’s child qualifies as a “minor” for automatic reunification.
- The Irish scheme in s.56 is, by any measure, broad and generous. The exclusion of adult children from automatic entitlement, particularly where other non-statutory avenues exist (via the Non‑EU Family Reunification Policy), does not breach the Convention.

5. Detailed Analysis

5.1 The EU Law Dimension

5.1.1 The Constitutional and Treaty Architecture: Opt-In as a Precondition

Collins J places heavy emphasis on the constitutional structure governing Ireland’s participation in EU measures in the AFSJ:

Article 29.7 of the Constitution requires the prior approval of both Houses of the Oireachtas for any exercise of an “option or discretion” under Protocol 21.
Protocol 21, Articles 1–2, make clear that, absent an opt-in:
- Title V measures, and CJEU decisions interpreting them, are “not binding upon or applicable in Ireland”, and
- They do not “form part of Union law as [it] applies to … Ireland”.
The Supreme Court in Iqbal confirmed that any attempt to implement such a measure in Irish law without Oireachtas approval would be unconstitutional.

From this, Collins J draws a key proposition:

EU family reunification measures and related CJEU judgments cannot constrain Irish law unless, and until, Ireland has opted in pursuant to Article 29.7 and Protocol 21.

Applied to NS’s case:

Ireland did not participate in the adoption of the Family Reunification Directive, and
It has not opted in subsequently.

Therefore, neither Directive 2003/86/EC nor CJEU decisions such as A & S and BMM—which interpret it— are part of Irish law. They cannot furnish a legal basis to declare s.56(9)(d) incompatible with EU law.

5.1.2 National Legislative Freedom in Family Reunification

Subject only to its obligations under:

EU measures it has actually opted into (here, principally the Qualification Directive), and
Other international commitments (and, of course, the Constitution and ECHR),

Ireland retains its inherent sovereign right to control the entry of non-nationals. This includes the freedom to decide:

Whether to legislate for family reunification beyond Article 23 of the Qualification Directive, and
The scope and conditions of any such legislative scheme.

Collins J therefore rejects the appellant’s key contention:

That once the Oireachtas chooses to legislate for a national family reunification scheme that goes beyond the minimum EU requirements, EU law somehow “governs the field” and requires that the scheme be coextensive with the Family Reunification Directive (or with NS’s reading of that Directive as interpreted by the CJEU).

He characterises that claim as flying in the face of:

Article 29.7 of the Constitution, and
Articles 1 and 2 of Protocol 21 TFEU.

The legislative competence of the Oireachtas in this area remains intact and unconstrained by unopted EU measures.

5.1.3 Article 18 of the Charter and the Declaratory Nature of Refugee Status

NS sought to derive a right to family reunification from:

Article 18 of the EU Charter (right to asylum), and
The proposition in the Qualification Directive that recognition of refugee status is a declaratory act (recital (14) QD / recital (21) Recast QD).

Collins J rejects this route on several levels.

(a) Scope of Article 18 of the Charter

First, he notes that neither:

The Geneva Convention 1951 and 1967 Protocol, nor
The EU Treaties themselves,

provide a right to family reunification as part of the right to asylum. Any EU right to family reunification arises only from EU secondary law—notably the Family Reunification Directive—which, crucially, does not bind Ireland.

Were Article 18 to contain, by itself, a freestanding right to refugee family reunification, the separate legislative effort in Directive 2003/86/EC would be largely superfluous—something Collins J considers implausible.

(b) Applicability of the Charter under Article 51

More fundamentally, Collins J emphasises Article 51(1) of the Charter: Member States are bound by the Charter “only when they are implementing Union law.”

In enacting s.56, the Oireachtas was not implementing the Family Reunification Directive or any other EU measure dealing with refugee family reunification. It was exercising domestic legislative competence beyond its EU obligations under Article 23 QD. Thus:

The Charter—including Article 18—is simply not engaged.

This conclusion aligns with prior High Court authority and underscores the Supreme Court’s narrow reading of the Charter’s reach, in contrast to broader “within the scope of Union law” formulations sometimes encountered in CJEU jurisprudence.

(c) The Declaratory Nature of Refugee Status: Not a Free-Standing Principle

NS sought to build on recital (14) QD, which states that recognition of refugee status is a declaratory act—meaning that a person is a refugee from the time they meet the criteria, not merely from the date of recognition.

Collins J acknowledges that this principle was used by the CJEU in A & S as an interpretive tool for the Family Reunification Directive, but firmly rejects the idea that it is:

a free-standing, binding principle of EU law that can constrain Irish legislation beyond the scope of specific EU measures to which Ireland has consented; or
a constitutional-like norm that overrides the Oireachtas’s choices in fields where Ireland retains legislative autonomy.

He stresses that:

Recitals are not operative provisions and do not, of themselves, create binding legal norms (citing scholarship on the law of recitals).
The declaratory nature of asylum has already been treated in Irish law as contextual and qualified (see X (Michael and Emma), where refugee status was not given retroactive effect for social welfare purposes).

Accordingly, the declaratory character of refugee status cannot be wielded to invalidate a purely national legislative choice as to the operative date for determining whether a sponsor’s child is under 18.

5.1.4 Article 3 of the Qualification Directive: “More Favourable Standards”

NS argued that section 56 formed part of the “more favourable standards” referred to in Article 3 QD, and that, by introducing such standards, Ireland’s scheme fell within the ambit of EU law and thereby under the Charter and CJEU case law.

Collins J rejects this interpretation. He characterises Article 3 as a clause that:

Preserves Member States’ freedom to do more for protection beneficiaries, and
Ensures that such additional measures must be compatible with the Directive itself,

but does not have the effect of “Europeanising” or absorbing all such national measures into the scope of EU law or the Charter.

In his view, Article 3 is therefore a safeguard of Member State competence, not a hook that automatically subjects voluntary, more generous rules to EU fundamental rights review.

5.1.5 The CJEU Cases: A & S, BMM, and SE

Three recent CJEU judgments featured in the arguments:

A & S v Staatssecretaris van Veiligheid en Justitie (C‑550/16)
Concerned the meaning of “unaccompanied minor” in Article 10(3)(a) of the Family Reunification Directive. The issue was whether minority should be assessed:
- at the date of the application for asylum, or
- at the date of the application for family reunification.
The Court held that the relevant date was the asylum application, emphasising:
- the special vulnerability of unaccompanied minors,
- the declaratory nature of refugee status, and
- the need to avoid outcomes dependent on administrative processing times.
BMM, BS, BM, BMO v État belge (Joined Cases C‑133/19, C‑136/19, C‑137/19)
Concerned Article 4(1)(c) of the Family Reunification Directive and the date for assessing whether children were minors. The question was whether minor status should be examined:
- at the date of the family reunification application, or
- at the later date of the decision on that application.
The CJEU held that the date of the application for family reunification is determinative. Nobody in that case argued for the earlier date of the asylum application. Notably, the Court’s reasoning mirrors the logic of s.56(9)(d) of the 2015 Act.
Bundesrepublik Deutschland v SE (C‑768/19)
Concerned Article 2(j), third indent, of the Recast Qualification Directive (2011/95/EU), which broadens the definition of “family members” to include the parents or responsible adult where the beneficiary of protection is a minor. The CJEU held that minor status is assessed as at the date of the asylum application, again in light of the particular vulnerability of child applicants.

Collins J notes several points:

These cases are interpretations of EU instruments (the Family Reunification Directive and the Recast Qualification Directive) to which Ireland has not acceded.
They cannot therefore impose obligations on Ireland nor render Irish legislation incompatible with EU law.
BMM in particular undercuts, rather than supports, NS’s position: it accepts the family reunification application date as the operative date for minority, which is precisely what s.56(9)(d) does.
A & S and SE focus on the special situation of child applicants (unaccompanied minors or minor beneficiaries of protection); they do not necessarily apply, even within EU law, to the position of adult refugees seeking reunification with their children.

Most importantly, Collins J insists that the CJEU’s use of the declaratory nature of refugee status in A & S is confined to the interpretative exercise within the Directive and does not transform that recital into a trans-substantive, constitutional-level principle binding Ireland where it retains legislative autonomy.

In sum:

Even if Ireland had opted into the Family Reunification Directive, s.56(9)(d) would not be inconsistent with it (as BMM suggests), and in the real world—where Ireland has not opted in—these CJEU cases cannot invalidate Irish law.

5.2 The Constitutional Equality Challenge (Article 40.1)

5.2.1 The Post-Donnelly Framework: “Pure” Equality Claims

NS did not assert any substantive constitutional right to family reunification. This is understandable given the Supreme Court’s decision in A v Minister for Justice [2020] IESC 70, which rejected such a right, particularly in the context of “post-flight” spouses.

Accordingly, the constitutional claim here is a “pure” equality challenge under Article 40.1 of the Constitution, which provides that:

All citizens shall, as human persons, be held equal before the law.

In Donnelly v Minister for Social Protection [2022] IESC 31, O’Malley J (for the Court) elaborated the standard for such “pure” equality challenges:

All legislation necessarily draws lines and classifies people into groups, including some and excluding others.
A mere claim that a classification is harsh or unfair, or that a more generous line could have been drawn, does not suffice.
An Article 40.1 challenge will succeed only if:
- the distinction is based on a constitutionally illegitimate ground (e.g. invidious discrimination), or
- it is arbitrary, capricious or irrational, or
- it is unrelated to the legitimate policy objective of the statute.
The Constitution does not authorise the courts to act as a “super-legislature” refining or improving the policy choices of the Oireachtas.

5.2.2 Application to Section 56(9)(d)

The impugned distinction in s.56(9)(d) is straightforward:

Children of the sponsor who are under 18 and unmarried on the date of the family reunification application are included in the automatic statutory scheme.
Children who have already turned 18 by that date—regardless of their age at the time of the sponsor’s asylum application—are excluded from that scheme (though they may seek admission by other routes).

NS’s argument is that this is unjustified, particularly where a child was under 18 when the sponsor applied for asylum and turned 18 only because of delays or timing in the process.

Collins J acknowledges that:

There is indeed differential treatment between these categories of children.
Some excluded children are, in many respects, in a very similar position to those included (e.g. siblings only months apart in age).

However, he holds that this does not render the distinction constitutionally suspect. Several considerations are central to his reasoning:

Link to Protection Status
It was entirely rational, and within the Oireachtas’s margin of appreciation, to link automatic family reunification to a point at which the sponsor’s entitlement to protection has been established and recognised.

Collins J refers to the “intrinsic link” between protection status and the right to family reunification, a concept also noted by the CJEU (albeit in a different context) in A & S. While s.56 uses the date of the family reunification application rather than the exact date of recognition, in practice those are close in time and conceptually tied to the status decision.
Difference Between Applicant and Recognised Refugee
There is a clear and legitimate distinction between:
- Someone applying for international protection, and
- Someone who has been granted that protection.
This difference is recognised, for example, in X (Michael and Emma), which holds that refugee recognition need not be retroactive for social welfare purposes.

Thus, the Oireachtas was entitled to structure family reunification around the post-recognition phase, not around the entire period since the initial asylum claim.
Inevitability of Hard Cases in Line-Drawing
Any bright-line rule based on age and a fixed date will inevitably produce:
- “Borderline” or hard cases, and
- Individuals who narrowly fall outside the rule despite being very similar to those inside it.
This remains true even if one uses the asylum application date: some children would still have turned 18 shortly before that date and be excluded.

The fact that another line might seem “fairer” does not make the chosen one arbitrary or irrational within the meaning of Article 40.1 as interpreted in Donnelly.
Policy Choices in Immigration Law
Decisions about who is entitled to automatic admission to the State, the categories of family members included, and the timing rules are quintessentially policy judgments requiring the balancing of complex social, economic, and resource factors. The Constitution leaves these judgments primarily to the Oireachtas, subject to a limited equality review that does not equate to a reconsideration of policy on grounds of “fairness” alone.

On this basis, the Court holds that s.56(9)(d) does not violate Article 40.1.

5.3 The ECHR Challenge

5.3.1 The Strasbourg Jurisprudence Considered

The Court considered three principal ECHR authorities:

Hode and Abdi v United Kingdom (App. No. 22341/09)
Concerned UK rules that effectively prevented post-flight spouses (i.e., spouses who married a refugee after his flight) from joining their refugee partner under the family reunion rules, while:
- pre-flight spouses (married before flight) enjoyed automatic rights, and
- Other categories of migrants (e.g. students, workers) and their spouses often had more favourable routes to reunification.
The ECtHR found a violation of Article 14 (non-discrimination) read with Article 8, emphasising the “particularly disadvantageous position” of post-flight spouses compared with both other refugees’ spouses and other migrant families.
Tanda‑Muzinga v France (App. No. 2260/10)
Concerned a recognised refugee in France whose application to reunite with his wife and minor children was subject to excessive delay (around 3.5 years). The Court reiterated that:
- Family unity is an essential right of refugees and that family reunification is often “an essential element” enabling them to resume normal life.
- There is a consensus that refugees should benefit from more favourable family reunification procedures than other migrants (referring inter alia to the Family Reunification Directive).
However, the breach found was based on:
- The ineffectiveness and delay in the French procedure, and
- The failure to provide sufficient guarantees of flexibility and promptness.
MT v Ireland (App. No. 54387/20)
Concerned the Irish s.56 scheme, which does not include children over whom the sponsor has exercised parental responsibility but who are not biologically related (and were not formally adopted). The applicant argued this violated Articles 8 and 14 ECHR.

The ECtHR rejected the complaint, emphasising:
- The existence of a separate Non‑EU Family Reunification Policy Document under which such children could be considered for reunification.
- The fact that the applicant had not availed of this alternative route.
The Court treated the availability of this discretionary but structured procedure as relevant to whether the State had in fact “refused” to respect family life.

5.3.2 Application to NS’s Case

Drawing on A v Minister for Justice, where the Supreme Court had previously considered Hode and Abdi in relation to s.56(9)(a) (spouses), Collins J concludes:

Section 56, taken as a whole, offers a broad and generous family reunification regime for recognised refugees and beneficiaries of subsidiary protection.
Excluding certain categories (such as post-flight spouses or, here, adult children) from the automatic scheme is not, in itself, contrary to the ECHR, provided there is a rational basis and some alternative mechanism exists to consider exceptional cases.
In A v Minister for Justice, a key factor in holding that s.56(9)(a) was ECHR‑compatible was the availability of an alternative route to admission under the Non‑EU Family Reunification Policy Document.

Applying these principles here:

Nothing in Hode and Abdi suggests that adult children such as SN have a right to automatic admission under a statutory refugee family reunification scheme, still less that the operative date for assessing minor status must be the asylum application date.
Tanda‑Muzinga is about procedural delay and effectiveness in reuniting a refugee with his minor children, not about the cut-off age or reference date. NS’s case did not involve such systemic delay once protection was recognised.
MT v Ireland confirms the importance of the overall framework, including non-statutory policies, in assessing whether there has been a refusal to respect family life. Given the existence of the Policy Document route, it is difficult to argue that there is an absolute or categorical refusal in respect of adult children.

In this light, Collins J considers it “wholly implausible” to suggest that Articles 8 and 14 ECHR require Ireland:

to treat the asylum application date as determinative for whether a child is a “minor” for automatic reunification, or
to admit an adult child like SN automatically under s.56.

Therefore, the ECHR challenge fails.

6. Complex Concepts Simplified

6.1 “Opt-In” and Protocol No. 21

The EU has an area of law called the Area of Freedom, Security and Justice (AFSJ), which covers immigration, asylum, policing, and aspects of civil and criminal justice. Most Member States are automatically bound by measures adopted in this area.

Ireland is different. Under Protocol No. 21:

Ireland is not automatically bound by AFSJ measures (such as asylum directives).
Instead, Ireland has an “opt-in” system: it can choose to participate in a particular measure by following a formal process and obtaining Oireachtas approval (Article 29.7 of the Constitution).
If Ireland does not opt in, that EU measure does not apply in Ireland and does not form part of Irish law, nor do CJEU decisions interpreting it.

This mechanism preserves a significant degree of Irish sovereignty over asylum and immigration policy.

6.2 “Declaratory” Nature of Refugee Status

When EU law says that recognition of refugee status is “declaratory”:

It means that a person becomes a refugee at the moment they satisfy the criteria in the Refugee Convention (well-founded fear of persecution, etc.), not only when a decision is formally made.
The recognition decision simply declares an already-existing situation.

However, this does not mean that all legal consequences of refugee status must always be backdated to the original asylum application date. National law can decide, for example, that:

social welfare entitlements, or
eligibility for family reunification

take effect from the date of formal recognition or from some other point, provided this is compatible with any binding EU obligations.

6.3 “Pure” Equality Claims Under Article 40.1

An equality claim is “pure” where the complainant does not allege that:

they are being denied some underlying substantive right (e.g. right to bodily integrity, freedom of expression), or
a suspect ground like race or religion is involved.

Instead, the claim is simply that the law treats one class of persons differently from another in a way that is said to be unfair.

Under Donnelly, such a claim succeeds only if the classification is:

Arbitrary – no rational justification at all,
Capricious – based on whim or irrelevant considerations, or
Irrational or disconnected from the purpose of the legislation.

The mere fact that the Oireachtas could have chosen a more generous or “fairer” line does not render the actual choice unconstitutional.

6.4 EU Charter “Implementation” (Article 51)

The EU Charter binds Ireland:

When Ireland is implementing EU law—for example, by transposing a directive, applying an EU regulation, or exercising powers conferred by EU law.

It does not bind Ireland when it legislates independently in areas where:

There is no EU measure in force binding Ireland, or
Ireland has not opted in to the relevant EU measure.

Section 56 of the 2015 Act falls into this latter category: it is domestic law that goes beyond Ireland’s minimum EU obligations, so the Charter, including Article 18, does not apply.

7. Significance and Potential Impact

7.1 Reassertion of Constitutional Control over EU Participation

The judgment powerfully reaffirms that:

EU measures in the asylum and immigration field bind Ireland only when Ireland has exercised its opt-in rights in accordance with Article 29.7 and Protocol 21.
Unopted measures like the Family Reunification Directive and the Recast Qualification Directive (as well as CJEU judgments interpreting them) do not form part of Irish law and cannot be invoked to strike down primary legislation.

This clarification is crucial for future litigation in the asylum and immigration field, where litigants have increasingly sought to rely on EU instruments not formally binding on Ireland.

7.2 Narrow Scope of the EU Charter in Irish Law

By holding that section 56 does not involve the “implementation of Union law”, the Supreme Court signals a relatively narrow approach to the Charter’s application. This may have implications beyond family reunification, including:

Other areas where Ireland uses its discretion to adopt standards more favourable than the EU minimum.
Arguments that such national “add-ons” are subject to Charter rights because they fall within a broad “field” of EU law.

The Court’s insistence that Article 3 QD preserves, rather than limits, domestic competence indicates that simply “doing more” than the Directive does not automatically bring those extra measures under EU law and the Charter.

7.3 Confirming the Absence of a Constitutional Right to Refugee Family Reunification

Following A v Minister for Justice, this case consolidates the position that:

There is no freestanding constitutional right for refugees to family reunification in Ireland.
Challenges to family reunification rules must typically be framed as:
- Equality claims (as here), or
- ECHR‑based claims under the ECHR Act 2003.

But Donnelly and NS together set a high bar for “pure” equality claims in this policy-laden field, leaving substantial discretion to the legislature.

7.4 Importance of Non-Statutory Policy in ECHR and Constitutional Analysis

The Supreme Court again treats the Non‑EU Family Reunification Policy Document as part of the relevant legal context. Both in A v Minister for Justice and in the ECtHR’s decision in MT v Ireland, the existence of this policy:

Mitigates the harshness of statutory exclusions from s.56, and
Helps demonstrate that there is no absolute refusal by the State to permit family reunification in non-statutory cases.

As a result, while the statutory scheme is tightly drawn, its compatibility with the ECHR—and, indirectly, with constitutional equality—partly rests on the continuing existence and operation of this administrative policy. Any significant retrenchment of that policy in future might re-open ECHR issues.

7.5 Practical Consequences for Refugees and Their Families

On a practical level, the decision confirms that:

The operative date for assessing whether a refugee’s child qualifies as a “child” under s.56 is the date of the family reunification application, not any earlier date (such as the asylum application date).
Refugees with children approaching 18 must therefore be acutely aware of:
- the timing of their recognition as refugees or beneficiaries of subsidiary protection, and
- the necessity to submit s.56 applications promptly thereafter.
Children who have already turned 18 by the time of the s.56 application will have to rely on:
- other immigration avenues, notably the Non‑EU Family Reunification Policy, and/or
- general immigration permissions (e.g. study, work).

While the Court notes that a more inclusive statutory scheme might arguably be “fairer” in some cases, it emphasises that such reform is a matter for the Oireachtas, not for the courts under existing constitutional and ECHR standards.

8. Conclusion

The decision in NS v Minister for Justice is a significant restatement of the constitutional and EU law boundaries governing refugee family reunification in Ireland.

At its core, the judgment establishes and clarifies that:

Because Ireland has not opted into the Family Reunification Directive, neither that Directive nor CJEU judgments like A & S, BMM, and SE are binding upon or applicable in Ireland.
The EU Charter of Fundamental Rights does not apply to section 56 of the International Protection Act 2015, since the Oireachtas was not “implementing Union law” but legislating domestically in an area where EU obligations (beyond Article 23 QD) do not bind the State.
The declaratory nature of refugee status, while important as an interpretive principle within EU law, is not a free-standing constitutional-like principle that constrains Irish legislative competence where Ireland has not consented to specific EU measures.
Under the refined Donnelly standard for “pure” equality challenges, the bright-line rule in s.56(9)(d) using the date of the family reunification application to assess whether a child is under 18 is rationally justifiable and not arbitrary, capricious, or irrational.
The ECHR, as interpreted in Hode and Abdi, Tanda‑Muzinga, and MT v Ireland, does not require Ireland to extend automatic refugee family reunification to adult children, particularly in light of the generously framed statutory scheme and the existence of alternative policy-based mechanisms.

Taken together, these points underscore a central theme of the judgment:

Within the constitutional framework of Article 29.7 and Protocol 21, Ireland retains a substantial degree of sovereignty over refugee family reunification policy, constrained only by those EU measures it has elected to join, the Constitution, and the ECHR. Section 56(9)(d) is a valid exercise of that sovereignty.

While the Court’s approach may leave some families—like NS and her adult daughter—feeling harshly treated by inflexible statutory lines, the judgment makes clear that any greater generosity in this area must come from legislative reform, not from constitutional or EU-law compulsion as the law currently stands.