1. 1° The State 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.
2° The State, therefore, guarantees 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.
Article 41, Constitution of Ireland – Bunreacht Na hÉireann
For various reasons, those who migrate to Ireland – whether to work or to seek safety – are often forced to do so without their husbands, wives, children and other close family members. Conversely, Irish citizens may wish to get permission for a spouse from outside of the EU to join them here.
Those residents who have been recognised as refugees have a legal right to “family reunification.” Workers from other EU countries have similar rights.
Unfortunately, no such equivalent right exists for other legal residents of Ireland, including Irish citizens. In their cases, it is a matter for the Minister for Justice of the day to decide whether to permit their non EEA family members to join them in Ireland, and if so, on what terms.
In addition, no Appeals Process for those dissatisfied with an adverse decision related to family reunification exists – the only option at present is to initiate judicial review proceedings.
We believe that a framework facilitating family reunification for all legal residents of Ireland is desperately needed.
Broadly speaking those attempting to reunify with their families in Ireland can be split into two categories: those who have a legal right to family unity, and those who do not. These are outlined in the following table, while more detail about each type of family can be found by clicking on the links in the table.
Rights-based Family Unity
Discretionary Family Unity
|EU Treaty Rights: an individual from an EU member state applying for family unity for family members who are not EU nationals Family Reunification: a refugee or person with subsidiary protection status applying for family unity||Irish National: an Irish national applying for family residency based on reuniting with their spouse, partner (de facto relationship) or child Migrant Worker: a (non-EEA) migrant worker applying for family reunion Leave to Remain: an individual with Leave to Remain status applying for family reunion with their spouse or child|
Family reunion for EU citizens living and (usually) working in Ireland derives from the EU Treaty. This system provides an excellent case study for illustrating the advantages of a transparent, rights-based approach to facilitating family unity.
EU treaty rights are derived from the Freedom of Movement Directive which provides that any EU worker resident in another EU State has the right to have his/her family to reside with him/her. This right extends to family members who are defined as ‘third country nationals’ (i.e. who are from outside of the EEA). This means that, for example, a French woman working in Ireland has the right to have her Chinese spouse live here with her.
However, somewhat critically, in Ireland there is no equivalent right for Irish nationals resident in the state. Irish nationals applying for permission to have their non EU spouse (for example) join them in Ireland have no legal rights as such. They are required to apply through a separate application system, based on discretionary decision making, as opposed to the rights-based system of EU Treaty Rights.
Nasc believes the EU Treaty Rights system is a fair and transparent family unity system, which upholds the constitutional protection of the family. Nasc would like to see equivalent rights granted to family members of Irish Nationals and other legally resident migrants (i.e. migrant workers and individuals with temporary permission to remain).
While the right of recognised refugees to family reunification is protected by section 18 of the Refugee Act 1996, and is also therefore a rights-based system for family unity, it is unfortunate that no time frame in which a decision must be made is set out.
It is our experience that refugees face inordinate delays in realising this right and it is not unusual for applicants to wait for up to two years before a final decision is made. Given that persons with refugee status have fled their homes due to persecution, their families are also often facing similarly dangerous situations.
A legislative commitment to reaching a decision on family reunification within a reasonable time frame would comply with national jurisprudence (Khaqan Mobin and Dorin Gafoor v The Minister for Justice, Equality and Law Reform, Ireland and The Attorney General, [2007 No. 321 J.R]), Article 6 European Convention of Human Rights, the EU Directive on Family Reunification and best practice guidelines.
Section 18 of the Refugee Act delineates who may be considered a family member for the purposes of family reunification. We at Nasc believe that the Refugee Act in its current form provides for an overly restrictive, outdated and discriminatory definition of ‘member of family’ i.e. that based on marriage.
We recommend that ‘member of family’ should be broadened to recognise same sex relationships and de facto relationships / civil partnerships in line with Article 8 of the European Convention on Human Rights, the Civil Partnership Act 2010 and our commitments under the Belfast Agreement. Furthermore, Nasc believes that the failure to recognise non-marital partners as a member of a refugee’s family under the current legislative regime, may be deemed to indirectly discriminate on the basis of sexual orientation should applications for family reunification be refused on this basis.
The recognition of foreign marriages (or lack thereof) by INIS has also been an impediment or source of significant delay to the reunification process for refugees residing in Ireland.
This has the potential to prevent refugees from being reunited with their spouse, as their marriage, although pre-dating the declaration of refugee status, is not recognised by the Department of Justice and Law Reform as a valid marriage and rights to family reunification may be lost as a result.
We propose that foreign marriages should be recognised if they were contracted in accordance with local practice, be this a traditional, religious or civil marriage.
Look to the right to watch “Together Again,” a short film in three parts about the experiences of refugees in Ireland dealing with the family reunification system.
Irish nationals currently have no right to reunification with their family members. Family members of Irish nationals may be granted permission to remain in the State at the discretion of the Minister of Justice. We believe that formal entitlements to family reunification for Irish nationals should be grounded in primary legislation and not relegated to ministerial discretion.
This effectively means that Irish nationals experience reverse discrimination affecting family unity when compared with the rights afforded to non-Irish EU nationals. In addition to relationships based on marriage, we also call for legislation to recognise non marital relationships as giving an entitlement to family unity.
There is currently no formal right to family reunification for non-EEA national migrant workers, many of whom have contributed to Irish society for a number of years and have attained long term residency. Such decisions are made at the discretion of the Minister for Justice.
We believe that Irish legislation in relation to family reunification for this category of migrants should be in line with the provisions of the EU Directive on the Right to Family Reunification. Ireland has opted out of this Directive, causing us to fall behind best practice in the EU. We at Nasc believe that this is an insult to the migrants who contribute so much to Irish Society.
At present the only option for an individual dissatisfied with an adverse decision related to family reunification, or indeed any other immigration-related decision is to initiate judicial review proceedings.
This is borne out by the statistics which show that in 2009, 749 immigration and asylum applications were received by the High Court, constituting a total of 58% of all judicial review cases. The average wait time was 9-12 months.The inefficiency of the current system is obvious. It is clearly in no one’s interest to have a lengthy and expensive culture of judicial review when many of these cases could be more properly dealt with by way of an independent appeals mechanism.
We believe that any new “draft immigration legislation should include an independent appeals mechanism to provide adequate redress for all immigration related decisions.” We call for the introduction of an independent Immigration Appeals Tribunal to relieve the pressure on the Irish courts while offering an inexpensive, expedited, appeals process to applicants.
Related Links and Resources
- The MIPEX index assesses and compares integration policies worldwide. Ireland’s family reunion policies score very low – indeed on the overall ranking table, we rank the worst of the 31 countries (EU and North America) surveyed.
- Click here to download Nasc’s submission (pdf) to Ireland’s Universal Periodic Review (UPR) at the United Nations General Assembly (including family reunion concerns).
- Watch our 3 minute “Better Together” video to meet Tracy, her husband Abdullah, and their baby Malika. Abdullah’s first application for permission to come to live in Ireland with his family was denied. Tracy made a second application with Nasc’s assistance, and she and her husband are now living in Cork together with their daughter.