S v Minister for Justice & Ors (Unapproved)

Factual and Procedural Background

The Appellant is a person who applied for international protection in Ireland and was subsequently declared a refugee. By letter dated 2 February 2022, the Appellant was informed that refugee status had been granted, following a prior recommendation from an International Protection Officer issued on 17 January 2022.

The Appellant has an eldest daughter (the “Daughter”). The Daughter turned 18 in October 2021, i.e. before the Appellant was declared a refugee and before any application for family reunification was made. On 4 March 2022, the Appellant applied for family reunification under section 56 of the International Protection Act 2015 (“the 2015 Act”) seeking permission for the Daughter to enter and reside in the State.

Section 56(9)(d) of the 2015 Act provides that a child of a “sponsor” (a person granted international protection) will be a “member of the family” for the purposes of section 56 only if, on the date of the application for family reunification, the child “is under the age of 18 years and is not married.” It was common case that, on the relevant application date, the Daughter was not under 18 and thus did not qualify as a “member of the family” within the section 56 scheme. The construction and application of section 56 itself were not disputed; the Daughter fell outside the statutory definition.

The Appellant nevertheless challenged the refusal to treat the Daughter as a qualifying “child” for section 56 purposes, advancing (i) an argument based on European Union (EU) law, (ii) a constitutional equality challenge, and (iii) a challenge based on the European Convention on Human Rights (ECHR). The High Court dismissed the challenge (details of that judgment are not set out in the provided text), and the Appellant appealed to the Supreme Court.

The judgment summarised here is the concurring judgment of Judge Collins, who agreed with the judgment and outcome proposed by Judge Dunne (dismissing the appeal) but added his own observations because of the importance of the issues raised.

Legal Issues Presented

1. Whether section 56(9)(d) of the International Protection Act 2015 is incompatible with EU law, in particular:
   • whether EU law requires that “child” for family reunification be assessed by reference to the date of the sponsor’s application for asylum rather than the date of the application for family reunification;
   • whether Article 18 of the Charter of Fundamental Rights of the European Union and Article 3 of Council Directive 2004/83/EC (“the Qualification Directive”) constrain the State’s legislative discretion when enacting section 56; and
   • whether CJEU case law on the Family Reunification Directive and the Recast Qualification Directive has any binding or indirect effect on Ireland in this context.
2. Whether section 56(9)(d) is repugnant to the Irish Constitution as a breach of the guarantee of equality before the law in Article 40.1, by irrationally or arbitrarily excluding from family reunification children who were under 18 when the sponsor first applied for international protection but who had turned 18 before the family reunification application.
3. Whether section 56(9)(d), and its application to exclude the Daughter from family reunification, is incompatible with the ECHR, specifically Article 8 (right to respect for family life) and Article 14 (prohibition of discrimination) read with Article 8.

Arguments of the Parties

Appellant's Arguments

• EU law and the definition of “child”: The Appellant argued that section 56(9)(d) is incompatible with EU law because, once the State chose to legislate for family reunification beyond the minimum required by Article 23 of the Qualification Directive, it became bound to legislate consistently with EU norms governing asylum and international protection. The Appellant contended that EU law effectively requires that the status of a “child” for family reunification purposes be determined by reference to the date of application for asylum, not the later date of the family reunification application.
• Declaratory nature of refugee status: The Appellant relied on Article 18 of the EU Charter of Fundamental Rights (guaranteeing the right to asylum), recital (21) of the Recast Qualification Directive (equivalent to recital (14) of the original Qualification Directive) stating that recognition of refugee status is a “declaratory act,” and CJEU judgments in:
  • A & S v Staatssecretaris van Veiligheid en Justitie (Case C‑550/16),
  • BMM and Others v État belge (Joined Cases C‑133/19, C‑136/19 and C‑137/19), and
  • Bundesrepublik Deutschland v SE (Case C‑768/19),
  to argue that the declaratory nature of refugee status means that rights flowing from that status, including family reunification, should be assessed by reference to the date of the application for asylum.
• Reliance on Article 3 of the Qualification Directive: The Appellant invoked Article 3, which permits Member States to introduce or retain “more favourable standards” regarding both qualification for refugee or subsidiary protection and the content of international protection, asserting that once the State adopts such more favourable standards, it acts “within the ambit of EU law” and is thereby constrained by EU principles.
• Scope of EU law in the “field of asylum”: The Appellant cited the Supreme Court’s decision in TD v Minister for Justice, Equality and Law Reform as authority that the right to seek asylum is now “anchored” in EU law and argued that the “field of asylum” should be understood as including family reunification, such that EU standards govern the treatment of family members in the Appellant’s situation.
• Constitutional equality (Article 40.1): The Appellant advanced a “pure” equality claim, accepting that there is no substantive constitutional right to family reunification in light of prior Supreme Court jurisprudence (notably A v Minister for Justice and Equality). The complaint was that section 56(9)(d) irrationally discriminates by including within its scope only those children who are under 18 at the date of the family reunification application, while excluding those who were under 18 when the sponsor applied for asylum but turned 18 before the reunification application was made.
• ECHR (Articles 8 and 14): The Appellant claimed that excluding the Daughter from section 56 amounted to a breach of the right to respect for family life and to discriminatory treatment. Strasbourg cases cited included:
  • Hode and Abdi v United Kingdom,
  • Tanda-Muzinga v France, and
  • MT v Ireland,
  said to support the existence of strong Convention-based protections for refugee family reunion and a requirement that State procedures be sufficiently flexible, prompt and effective to secure family unity.

Respondents' Arguments

• Counsel for the Respondents was recorded as submitting, in the context of the CJEU’s decision in BMM, that the question before the CJEU there was whether the relevant date for assessing a qualifying “child” under Article 4(1)(c) of the Family Reunification Directive was the date of the application for family reunification or the later date of the decision on that application. No party in BMM had contended that an earlier date, such as the date of application for asylum, was operative; the CJEU’s answer, endorsing the family-reunification application date, was said to mirror the approach in section 56(9)(d).
• The opinion does not otherwise contain a detailed account of the Respondents' wider legal submissions, beyond what can be inferred from the reasoning adopted by the Court.

Table of Precedents Cited

Court's Reasoning and Analysis

1. EU Law Challenge

(a) Plain meaning of section 56(9)(d)

The Court first noted that the wording of section 56(9)(d) is “clear and unambiguous”: a child is a “member of the family” only if, on the date of the application under section 56, that child is under 18 and not married. It was undisputed that the Daughter had already turned 18 by the time the Appellant applied for family reunification. On the proper construction of section 56, therefore, the Daughter did not qualify and fell outside the statutory scheme. No attempt was made to argue that a conforming interpretation could alter this operative date without contradicting the statute’s plain language.

(b) Constitutional and Treaty framework – Ireland’s opt-out

The Court examined the constitutional and Treaty framework governing Ireland’s participation in EU measures in the area of freedom, security and justice (Title V TFEU). Article 29.7 of the Constitution lays the foundation for Ireland exercising opt-in options under Protocol No. 21 to the TFEU, but requires prior approval of both Houses of the Oireachtas. This is a mandatory constitutional requirement; any legislation purporting to give effect to a Title V measure without such approval would be unconstitutional, as confirmed in Iqbal v Minister for Justice.

Under Protocol No. 21, Articles 1 and 2 state that Ireland does not take part in the adoption of Title V measures and is not bound by them, nor by CJEU decisions interpreting them, unless it opts in under Articles 3 or 4. These Title V measures, and related case law, “shall not be binding upon or applicable in … Ireland” and do not form part of Union law as it applies to Ireland. The earlier Protocol No. 4, which applied at the time of adoption of the Family Reunification Directive, was materially identical.

Because Ireland did not participate in the adoption of the Family Reunification Directive and has never accepted it post‑adoption, that Directive and any CJEU judgments interpreting it are not part of Irish law. Likewise, Ireland has not opted into the Recast Qualification Directive. By contrast, Ireland is bound by the original Qualification Directive and by the Procedures Directive.

(c) Scope of EU obligations on family unity

The Court noted that Article 23 of the Qualification Directive (as implemented by section 57 of the 2015 Act) imposes specific, narrow obligations designed to maintain family unity. Critically, “family members” under Article 2(h) of that Directive must be present in the same Member State in relation to the international protection application. Since the Daughter never accompanied the Appellant to Ireland and was never present in the State during the protection process, she was not a “family member” within that EU definition. Accordingly, neither Article 23 of the Qualification Directive nor section 57 could assist the Appellant.

Subject to its EU and international obligations, the State fundamentally retains sovereign control over the entry of non‑nationals. With Ireland not bound by the Family Reunification Directive, any decision to legislate for family reunification beyond Article 23 Qualification Directive — and the scope and content of such legislation — lies within the legislative competence of the Oireachtas, constrained only by the Constitution, not by the Directive or its interpretation by the CJEU.

(d) Rejection of the Appellant’s “indirect incorporation” theory

The Appellant’s core contention was that, once the Oireachtas elected to legislate in respect of family reunification beyond the minimum required by EU law (through section 56), it became subject to EU constraints such that the domestic scheme had to be effectively coextensive with the Family Reunification Directive (or with the Directive as interpreted by the CJEU). The Court held that this argument “flies in the face” of Article 29.6 and 29.7 of the Constitution and Articles 1 and 2 of Protocol 21. National legislation enacted in a field in which the State has deliberately not opted into specific EU measures is not automatically drawn within the scope of EU law.

(e) Article 18 of the EU Charter of Fundamental Rights

The Court addressed the Appellant’s reliance on Article 18 of the Charter (right to asylum):

• Article 18 is concerned with the right to asylum, not with any right to family reunification. Neither the 1951 Geneva Convention nor the 1967 Protocol (to which Article 18 refers) contains a right to family reunification. Nor do the EU Treaties themselves establish such a right. Whatever EU “right” to family reunification exists is a creation of secondary legislation, such as the Family Reunification Directive, not of Article 18.
• If Article 18 itself created a general right to family reunification for refugees, the Family Reunification Directive would have been largely superfluous. The Directive’s own recitals confirm that it “establishes” such a right.
• Article 51 of the Charter restricts its application to Member States “only when they are implementing Union law.” In enacting section 56, the Oireachtas was not implementing any EU measure; rather, it was exercising its autonomous legislative competence in an area where the State had not opted into the relevant EU instruments. As a result, the Charter was not engaged at all.

Even if Article 18 were applicable and could somehow be read as including a right to family reunification, the Court considered it “entirely unclear” how that would render section 56(9)(d) incompatible with EU law, given that section 56 establishes what the Court described as a “generous” family‑reunification scheme, even if it is not precisely identical to the scheme under the Family Reunification Directive.

(f) Article 3 of the Qualification Directive

Article 3 allows Member States to introduce or retain more favourable standards concerning qualification for, and the content of, international protection, “in so far as those standards are compatible with this Directive.” The Court rejected the suggestion that by adopting more favourable standards (such as a generous family‑reunification scheme), a Member State thereby brings its legislation “within the ambit of EU law” in the sense implied by the Appellant. On the contrary, Article 3 is designed to preserve Member States’ competence to go beyond minimum EU standards, subject only to non‑contradiction with the Directive itself. It does not convert discretionary, national enhancements into EU‑regulated entitlements.

(g) CJEU case law: A & S, BMM, and SE

The Court analysed the three principal CJEU decisions invoked by the Appellant:

• A & S concerned the interpretation of “unaccompanied minor” for the purposes of Article 10(3)(a) of the Family Reunification Directive. Faced with ambiguity, the CJEU examined the scheme and objectives of the Directive and, taking account of the declaratory nature of refugee status and the vulnerability of unaccompanied minors, held that “unaccompanied minor” refers to a person who was a minor when they applied for international protection. The Court noted that this ruling is tightly linked to the specific context of unaccompanied minor applicants and to the Directive itself.
• BMM concerned Article 4(1)(c) of the same Directive and held that the operative date for determining whether a person is a “child” is the date of the family reunification application, not the later decision date. The Supreme Court emphasised that, in BMM, no party argued for the earlier asylum application date. The CJEU’s ruling explicitly endorses using the family‑reunification application date, which “substantively mirrors” section 56(9)(d). Thus, far from supporting the Appellant, BMM indicates that using that date is fully compatible with the Directive.
• SE interpreted Article 2(j), third indent, of the Recast Qualification Directive (not binding on Ireland) to mean that, where a minor beneficiary of protection is the reference point, the relevant date for assessing minority is the date of the asylum application. Again, the particular vulnerability of minor applicants was key.

The Court considered that these cases, taken together, did not support the Appellant’s position. Even in EU systems where the Family Reunification Directive applies, there is no single, all‑purpose rule that the operative date must always be the asylum application date; BMM in particular undercuts the Appellant’s argument by endorsing the very approach used in section 56(9)(d).

(h) No free‑standing EU principle from “declaratory” refugee status

The Appellant attempted to extract from the notion that recognition of refugee status is “declaratory” a general, free‑standing EU principle constraining the Oireachtas when legislating even outside fields in which the State has opted into EU measures. The Court firmly rejected this. It stressed that:

• Recital (14) of the Qualification Directive (and the equivalent recital in the Recast Directive) is not a binding legislative provision, much less a constitutional principle; it is used by the CJEU primarily as an interpretative aid.
• In A & S, the CJEU did not treat the declaratory nature of refugee status as an absolute rule; it declined to adopt an even earlier reference date (the date of entry into the Member State) notwithstanding that “declaratory” logic might arguably support that approach, instead emphasising the “intrinsic link” between refugee status and the family reunification right under the specific Directive provision.
• EU interpretative choices in instruments not binding on Ireland cannot be transposed into constraints on the Irish legislature where no opt‑in has occurred.

(i) Conclusion on EU law

The Court concluded that:

• The enactment of section 56 was within the Oireachtas’ legislative competence and was not mandated by EU law.
• Ireland’s obligations regarding family reunification under EU law are limited to the narrow scope of Article 23 of the Qualification Directive (and section 57), which did not apply to the Daughter.
• No EU provision was identified that requires Ireland to admit, under a statutory reunification scheme, children who have reached 18 by the date of the family reunification application, even if they were minors when the sponsor sought asylum. Indeed, this does not even appear to be required by the Family Reunification Directive itself, as interpreted in BMM.

Accordingly, the EU law-based challenge to the validity of section 56(9)(d) failed.

2. Constitutional Equality Challenge (Article 40.1)

The Appellant accepted, in light of A v Minister for Justice and Equality and related jurisprudence, that there is no freestanding constitutional right to family reunification. The challenge under the Constitution was therefore a “pure” equality claim under Article 40.1.

Applying Donnelly v Minister for Social Protection, the Court restated the key principles:

• All legislation involves differentiation between individuals or groups; such differentiations inevitably exclude some who are in a similar position to those included.
• A purely equality-based challenge can succeed only if the legislative classification is based on a constitutionally illegitimate consideration and creates an irrational distinction, treating some as inferior for no justifiable reason – i.e. the distinction must be arbitrary, capricious, irrational, or irrelevant to the legislative purpose.
• The Constitution does not permit the courts to strike down a classification merely because a more inclusive or “fairer” policy could have been chosen; the courts are not a “super-legislature”.

The relevant classification in section 56(9)(d) is between:

• children of a sponsor who are under 18 (and unmarried) at the date of the sponsor’s family reunification application, who fall within the section 56 scheme; and
• children who were under 18 when the sponsor applied for international protection but who had turned 18 by the time the sponsor applied for family reunification, who are excluded from the scheme.

The Court held that this distinction is not arbitrary or irrational and is clearly relevant to the legislative purpose. It was “perfectly permissible” for the Oireachtas to limit the automatic statutory entitlement to those who are minors at the point when the sponsor’s entitlement to protection is established and the sponsor invokes family reunion, and to exclude those already adults at that point. This reflects the important distinction between an applicant for protection and a recognised beneficiary, as illustrated in X (Michael and Emma) v Minister for Social Protection, which also confirms that refugee recognition need not be retrospective.

The Court acknowledged that any temporal cut-off will result in some persons in very similar circumstances falling just outside the scheme. However, that is inherent in legislative line‑drawing; the same difficulty would arise even if the operative date were instead the asylum application date, as urged by the Appellant. While the Appellant argued that a more inclusive approach would be “fairer,” Donnelly makes clear that “fairness” in this sense is not the constitutional test. Policy choices in immigration and family reunification, involving complex social and economic considerations, are “quintessentially” for the legislature.

On this basis, the Court held that section 56(9)(d) did not breach Article 40.1.

3. ECHR Challenge

The Court addressed the ECHR arguments more briefly, in the shadow of its decision in A v Minister for Justice (which had already considered similar issues under section 56(9)(a)).

(a) Hode and Abdi v United Kingdom

This case involved “post-flight” spouses of refugees who, under the United Kingdom’s Immigration Rules, were excluded from refugee family reunion and treated significantly less favourably than both pre-flight spouses and other categories of immigrants (such as students and workers). The European Court of Human Rights found a violation of Article 14 read with Article 8.

The Supreme Court reiterated that Hode and Abdi had been carefully examined in A v Minister for Justice, where the Court concluded that section 56(9)(a), although excluding certain post-flight spouses from the statutory entitlement, was constitutionally and ECHR-compliant. An important factor there was the availability of an alternative route under the Ministerial Policy Document on Non‑EU Family Reunification.

In the present case, the circumstances were different again: the issue was the age cut‑off for children under section 56(9)(d), not a wholesale exclusion or unfavourable treatment of a broad class of family members compared with other immigrants. The Court found nothing in Hode and Abdi to suggest that Article 8 or 14 ECHR required Ireland to determine minority for family‑reunification purposes by reference to the asylum application date.

(b) Tanda-Muzinga v France

In Tanda-Muzinga, a refugee’s application for family reunification with her minor children experienced an excessive delay of about 3½ years. The Strasbourg Court emphasised that family unity is an essential right of refugees and that there is a European and international consensus that refugees should benefit from a more favourable family-reunification procedure than other aliens. The Court found a violation of Article 8 ECHR because the State had failed to secure adequate flexibility, promptness and effectiveness in its procedures, thereby failing to strike a fair balance between the applicant’s interest in family life and the State’s interest in controlling immigration.

The Supreme Court noted that Tanda-Muzinga is concerned with procedural delay and the effectiveness of the process, not with the substantive age criteria. Section 56 provides a broad and generous statutory scheme; no allegation of delay or procedural inflexibility arose in the Appellant’s case. Accordingly, Tanda-Muzinga did not support the Appellant’s challenge.

(c) MT v Ireland

In MT, the applicant complained that children over whom he exercised parental responsibility, but who were not shown to be his biological children, were excluded from section 56. The ECtHR rejected the complaint, stressing:

• the existence of an alternative procedure via the Ministerial Policy Document on Non‑EU Family Reunification, which covered children in the care of the sponsor; and
• that the applicant had not used that alternative route.

The Strasbourg Court held that the availability of that alternative procedure went to the substantive question of whether the State had in fact refused or failed to respect the applicant’s family life. Given that there was another route by which reunification could have been examined and possibly granted, no breach of Articles 8 or 14 was found.

The Supreme Court treated MT as confirming that section 56 must be viewed within a broader legal and policy context, where statutory exclusions can be mitigated by alternative administrative schemes. There was no indication that the combination of section 56(9)(d) and the wider policy framework resulted in a refusal by the State to respect the family life of the Appellant and the Daughter, in the Convention sense.

(d) Overall ECHR assessment

Against the background of A v Minister for Justice, and considering the Strasbourg authority, the Court held that the Appellant’s ECHR challenge could not succeed. Section 56 as a whole is a “broad and generous” scheme of family reunification for persons granted international protection. Nothing in the Strasbourg jurisprudence suggests that the ECHR requires Ireland to use the asylum application date, rather than the family-reunification application date, when determining whether a sponsor’s children are “minor children” eligible for automatic reunion. Excluding adult children (18 or over at the date of the family reunification application) does not amount to a breach of Article 8, nor of Article 14 read with Article 8.

Holding and Implications

Holding: The Supreme Court unanimously held that section 56(9)(d) of the International Protection Act 2015 is valid and lawful. The Appellant’s challenges based on EU law, the Irish Constitution, and the ECHR all failed. The Daughter, having turned 18 before the date of the family reunification application, was correctly excluded from the statutory family reunification scheme. Accordingly, the appeal was DISMISSED.

Implications:

• The decision confirms that, for Ireland, EU law obligations on refugee family reunification are confined to the narrow obligations arising under Article 23 of the Qualification Directive (and its domestic implementation), unless and until the State opts into further EU measures (such as the Family Reunification Directive) in accordance with Protocol No. 21 and Article 29.7 of the Constitution.
• It underscores that national measures like section 56, enacted without implementing a particular EU directive, do not automatically fall within the ambit of the EU Charter of Fundamental Rights. The Charter applies only where the State is implementing Union law.
• The judgment clarifies that CJEU case law interpreting EU instruments not binding on Ireland (e.g., the Family Reunification Directive and the Recast Qualification Directive) does not, of itself, impose legal constraints on the Oireachtas when legislating in areas where Ireland has chosen not to opt in.
• In constitutional terms, the decision consolidates the approach in Donnelly to “pure” equality challenges under Article 40.1: legislative line‑drawing, even if capable of being perceived as less than maximally inclusive or “fair” at the margins, will generally be upheld if it pursues a legitimate purpose and is not arbitrary, capricious or irrational.
• From an ECHR perspective, the Court reiterates that the broad generosity of the statutory scheme, coupled with the availability of alternative, policy-based family reunification routes, suffices to meet Ireland’s Convention obligations in the absence of evidence of discriminatory or disproportionate exclusion.

The judgment primarily affects the parties by upholding the refusal to admit the Daughter under section 56 and confirming the validity of the current statutory age criterion. It does not purport to establish a new legal right or significantly extend existing doctrine; rather, it reinforces and applies established constitutional, EU, and ECHR principles to the family-reunification context.