The International Protection Act 2015: An Analysis of Family Law

This assignment provides a detailed analysis of the International Protection Act 2015 in Ireland, focusing on its implications for family reunification. It discusses the concerns raised by human rights and equality commissions regarding changes in family reunification laws, especially in the context of the European migration situation and the Irish Refugee Protection Programme. The assignment explores the right to family life as recognized in international, European, and Irish domestic law, referencing Article 41 of the Irish Constitution and relevant Supreme Court interpretations. It also examines Section 56(8) and (9) of the Act, which outline the application process and eligible family relations. The analysis includes a discussion of the evolution of the definition of marriage and family under Irish constitutional law, highlighting the inclusion of same-sex marriage and the rights of children. The assignment concludes by emphasizing the importance of family in Ireland and the ongoing debates surrounding the protection of familial relationships under Article 41, including considerations for Irish nationals and foreign individuals seeking protection.

The International Protection Act 2015 in
the context of family reunification

Introduction:
The International Protection Act 2015 was being passed in 2015 and cane in to effect in 31st
December, 2016. The human rights commission as well as the equality commissions of the
country Ireland are raising repeated worry regarding the changes made in the family
reunification law especially in the context of the migration situation in Europe along with the
enactment of the Irish Refugee Protection Programme.
According to the opinion expressed by the Irish human rights Commission that the elimination of
the right of international protection for beneficiaries to apply for family reunification with
extended family members under the International Protection Act 2015 and the enacted statutory
time limit for 12 months for placing the applications constitutes demoralizing situation for all
those are looking for and are eligible for getting international protection in Ireland1.
The following section of the assignment discusses the possible impact of the changes to family
reunification law on the rights of beneficiaries of international protection.
The different organizations of Ireland like actors association, parliament members, civil society ,
Council of Europe’s Commissioner for Human Rights have raised repeated questions regarding
the negative impacts of changes in the reunification of the law. That is why the government has
taken initiatives to reverse the changes brought about by the International Protection Act
2015 .As a remedial measure the Private Members Bill has been brought which is awaiting
Final Stage in Seanad Éireann at the time of writing2.
Body:
An individual who can be of any nationality has the right to enjoy his family life and this right
has long been recognised in the international law, European law as well as in case of domestic
1 Costello, C. (2016). The Human Rights of Migrants in European Law. Oxford University Press
2 Karlsen, E. (2016). Refugee resettlement to Australia: what are the facts?. Parliamentary
Library.

laws of Ireland. The right to family reunification stems from the right to enjoy the family life
with respect to an individual. This the scope of this significant right focuses upon the concept of
the family that has evolved over time from the inevitable experience that a person is alive and
living a healthy life
Protection of the family and the right to family life as per Irish constitution:
As per the Article 41 of the Constitution of Ireland the State recognises that a Family is a natural
primary and bottom level unit group of a Society. Therefore a strong facility is to be essentially
developed for the development of a strong society. The state also recognizes that the right of
enjoying family life is a moral institution possessing unchallengeable and imprescriptibly rights
and this law is the forerunner and advanced to all positive law.
Thus as per the law it is the duty of the State to guarantee to protection of the Family as per the
constitution of the country and also posses the required authority to do so.
Thus the right of an individual to enjoy the family life is the essential base of a well structured
social order and is necessary aspect that must be fulfilled for ensuring the welfare of the Nation
as well as that of the State. However it should be noted that the concept of family is not properly
defined in the Constitution of Ireland. The Supreme Court of the nation Ireland has interpreted
the concept of the family (in Article 41) as family is something that is founded though marriage.
However the concept of marriage was not originally depicted in the Constitution of Ireland; but
currently the supreme court of the country has broadened the interpretation of marriage and now
include the aspects of same-sex marriage following a constitutional amendment that took place
in 20153.
Therefore the individual who have carried out marriage under same sex and has formed couples
will be considered as a family under the constitutional definition generated for the concept of
family.
3 Guild, E., & Groenendijk, K. (2016). Understanding the contest of community: illiberal
practices in the EU?. In Illiberal Liberal States (pp. 23-48). Routledge.

International Act 2015 section 56 (8) states that an application has to be made by the ‘sponsor’
who is the resident of the state within a period of 12 months regarding the identification of the
‘sponsored’ as the family member. Section (9) specifies the relation of the person entering with
the resident or sponsor within the country. The relations has been specified in the act as well in
subsection (a) it states that the sponsors spouse can be considered as family provided the fact that
while the application has been made the couple were married. Subsection (b) states the member
of the family can be a civil partner as well provided that the partnership is present at the time of
making the application. Subsection (c) states that that the parents of the sponsor who is less than
18 years of age is going to be considered as family and sub section (d) states that sponsors with
children less than 18 years of age are also going to be considered as family members4.
Importance of family in Ireland as per Supreme Court and constitution:
The most significant aspect upon which focus should be put is that the constitutional amendment
that took place in 2015 also brought some changes with respect to the Children and Family
Relationships Act 2015 with respect to the rights of unmarried individuals under article 41.1 the
Constitution of the country Ireland
The State (Nicolaou) v An Bord Uchtála on the basis of which a narrow judicial interpretation
has been delivered in relation to the concept of marriage and the subject was put on much
litigation and debate5
Looking at the evolution of the Definition of Marriage as well as family as per the Irish
Constitution and Irish Journal of Family Law the marriage may be defined as a social incident
that should be considered as a contract and the contract should be done in accordance with law
by two persons where the two persons will not be discriminated on the basis of sex.
4 Kaczorowska, A., 2015. Public international law. Routledge.
5 State (Nicolaou) v An Bord Uchtála [1996] IR 567. This narrow judicial interpretation has been the subject of
much litigation and debate, see for example: Bergin-Cross (2015) ‘The Evolution of the Definition of Marriage and
the Family under the Irish Constitution’, Irish Journal of Family Law, 15(2).

Beforehand the High Court depicted the marriage as an incident between a man and a woman as
per the Zappone & Gilligan v. Revenue Commissioners & Ors [2006] IEHC 404 case verdict
where the fathers are liable to get the automatic guardianship of their children in certain
circumstances. According to the section of 42A of Article 11 of the Constitution of Ireland the
natural an inevitable rights of all children to get an automatic guardian and the role should be
played by the father of the child6.
Irish constitutional law differs from international law with respect to the consideration of rights
of the child in the perspective of family life. One the hand the United Nations Convention
considers the Rights of the Child in the format each individual child should be considered as a
separate entity and being a separate entity the child is an independent holder of his or her own
rights.
The understanding of rights of children often depends on the fact that how the family rights are
being exercised in accordance with the Article 41 of the Constitution of Ireland7.
According to the verdict given Murray v Ireland Costello J by the Supreme Court The rights
under the Article 41.1.1 are those rights which can properly be assigned to the institution itself
which is distinct from the personal rights. The individual members of the family will only be
allowed to enjoy such rights by virtue of membership of the family which has been formed under
a legal marriage contract8
According to the Supreme Court the constitutional rights of the family in Ireland are not limited
to Irish citizens only. According to Supreme Court as the family rights are being derived from
natural law then it automatically follows that such rights should not be kept restricted to citizens
of Ireland only.
6 Article 41.4 provides that ‘marriage may be contracted in accordance with law by two persons without distinction
as to their sex’. Previously the High Court defined marriage as between a man and a woman in Zappone & Gilligan
v. Revenue Commissioners & Ors [2006] IEHC 404.
7 Wagner, R. (2015). ‘Transnational civil dis/obedience’in the Danish family unification
dispute. European Political Science Review, 7(1), 43-62.
8 Murray v Ireland [1985] IR 532.

A large number of the case law in relation to the persons to whom the family rights are
applicable (referring to Irish atonal and foreign individuals taking protection in Ireland) has
emerged in relation to the issues where deportation order has been passed to the foreign
individuals living in the country for protection or in case where the appeal of the foreign
individuals(living in the country for protection) were being refused in case where they are
asking for residential status for their family members where the family has been created by
marriage. Thus it can be said that a settled vision has not been generated by the superior courts to
the extent to which certain familial relationships are being protected by Article 41 of the Irish
Constitution.
In several cases a wide interpretation of the types of family relationships that are being protected
by by Article 41 of the Constitution has emerged.
In this connection the example of the case of RX, QMA & CX v Minister for Justice is
relevant where it has been stated that it should not be intended by the People in 1937 that the
family being defined by Article 41 should be confined exclusively and for all possible purposes
to what in modern days being described as the nuclear family that only contains the parents and
their children9.
According to Hogan and Whyte (2003) JM Kelly as described in the Irish Constitution that
marriage was, is being regarded as the foundation of forming a family .But that does not mean
that a family can not include the other members other than the parent and children as per the Irish
constitution. In other words as per the Irish constitution the other close relatives like grandfather
and grandmother is also considered as the part of the family as defined by the scope of article 41
of the constitution of the country. According to Hogan and Whyte the grandparents and adult
siblings should be considered under the concept of family as defined by the article 41 of the Irish
constitution provided the family has been generated by the marriage of two persons and the
grandparents and adult siblings are having strong ties and dependence and communication with
9 Lambert, H. (1999). The European Court of Human Rights and the right of refugees and other
persons in need of protection to family reunion. International Journal of Refugee Law, 11(3),
427-450.

other members of the family so that they can be considered as part of the family10. The other
important fact that must be considered while including those member as a part of the family is
that the grandparents and adult siblings or any other close relative must stay in the same house in
which a family is staying (as described by the constitution) or those members are having frequent
interaction with the family provided they are not staying in the same house with the family.
Thus from the above discussion it is clear that the Irish government as well, as Irish constitution
has put a huge importance over the aspect of family and also recognises the right of the
individual that he or she whether he is a citizen of Ireland or not has the right to enjoy a family
life for making a healthy living. According to this recognition a person who is not even an Irish
citizen and living in Ireland as a refugee or under protection are also supposed to become eligible
to enjoy the family life as an international right for enjoying a healthy life As per the constitution
of Ireland a family is bottom line unit of an orderly and healthy society and from this point of
view any person who is living in the country as resident and not even an Irish person by birth
should get the opportunity to stay with his or her family or spouse otherwise according to the
human rights commission of the country the basic human rights of those persons will be violated
if their appeal for bringing their close family members is being rejected11.
Thus such rejection s going to fetch a bigger negatives impact for the society as if some of the
people who are part of the society are being forced fully deprived off enjoying their family life
will be unhappy and such unhappy people are prone to generate law and order problem in the
society.
International Regulations for the right to family interactions
The United Nation has declared the Universal declaration regarding the human rights which has
recognised the family as a naturally occurring unit and the state and the society has been
10 Lahav, G. (1997). International versus national constraints in family-reunification migration
policy. Global Governance, 3(3), 349-372.
11 Edwards, A. (2005). Human rights, refugees, and the right ‘to enjoy’asylum. International
Journal of Refugee Law, 17(2), 293-330.

assigned by the statement to protect this unit. This declaration of the united nation has been the
base of the creation of several other human right legislations. The right to having a family has
been recognised in the International Covenant on Civil and political rights article 23 subsections
1. This has been incorporated in the legislation of Ireland as it is a part of the European
convention. The right is represented in the legislation of the state which is called the human
rights act 2003. The term family has been a controversial subject; there has not been a single
term that can define family. Accepting the changing nature of the society marriage has not been
considered as a unit of counting family ties. The existence of close relationship between people
has been termed as family as par the European court of law12. The existence of close bond has
been termed as de facto family by the mentioned body.
The united nation convention article 10 subsection 1 states that the uniting the child and parent
should be a positive intent for a state parties. Subsection 2 of the same article has stated that in
situations where the parents and the children are living across borders a state should permit the
meeting of them on regular intervals. European Union’s Charter of fundamental right article 24
states that the child has the right to maintain regular contact with its parents.
The United Nation Human Right committee has stated that the right to have a family and to take
care of it is not limited by the bond of marriage. It is also not necessary to bond it with
geographical proximity. In all situations regardless of a legal or social or personal bond of family
existing the need for interaction and protection and care is necessary. The extent of the
importance that has been given to the need of family can be seen in the European social charter
article 19 (6) which state that even a refugee has the right to family. In fact it has been
considered as a fundamental right for migrant workers to have their family along with them to
ensure that they are established in a particular area13. The countries that are providing asylum
should in no humane reason exclude the family members of the refugee in granting their rights to
stay and work.
12 Shelton, D., (2015). Remedies in international human rights law. Oxford University Press,
USA.
13 Doolan, B., (1988). Constitutional law and constitutional rights in Ireland. Gill and
Macmillan.

European Union regulations for the right to family interaction
In the international segment some of the European Union rights and regulations regarding the
unification of family have been mentioned. This is doubtless to state that the regulation devised
by the European Union has been in favour of ensuring that each person within the union resident,
migrant or refugee gets the right to have the company of family.
The family reunification directive in the European Union provides the refugees working in the
country the right to have family reunification. The directives that are provided in the European
Union are often enough suggestions that may or may not be accepted by the countries within the
union. The provisions that are under this directive have not been accepted by the country of
Ireland.
The Irish law and the Directive of family reunification has been a matter of undergoing court
cases as can be seen in the case of Hamza & Anor v. the Minister of justice, Equality and law
reform. The court upheld the ideas of the directives in the verdict of the case14. It has been stated
that this directive is going to be made as closely available as possible following the statutory
legislations that are existent within the country.
Impact of International Protection Act 2015:
According to the International Protection Act 2015 that has been initiated for controlling the
immigrants it has been described that a refuge or a subsidiary protection holder taking asylum in
Ireland can appeal for renunciation of the following family members:
The Spouse of a refugee or a subsidiary protection holder can permanently come to stay in the
country provided the marriage must have been subsisted on the date on which the application for
International Protection has been made in the country15.
14 Murphy, C., (2011). Immigration and Family Life: Reunification in Irish Law. Dublin
University Law Journal, 34(2), pp.221-241.
15 Groenendijk, K. (2006). Family reunification as a right under community law. European
Journal of Migration and Law, 8(2), 215-230.

The Civil partner of a refugee or a subsidiary protection holder can permanently come to stay in
the country provided the civil partnership must have subsisted on the date on which the
application for International Protection has been made in the country.
The Parents of a refugee or a subsidiary protection holder can permanently come to stay in the
country provided the applicant’s age is lower than 18 and not married on the date on which the
application for International Protection has been made in the country.
The Child refugee or a subsidiary protection holder can permanently come to stay in the country
provided the child is having an age below 18 years and not married on the date on which the
application for International Protection has been made in the country.
The other aspect of family reunification clause that must be considered is that the appeal for
family reunification application must be placed within 12 months of the date on which the
international protection being granted to the refugee and the asylum seekers of the country who
are not Irish by nationality16.
The another important clause for applying the family reunification is that any person who has
immigrated in the country as refugee or asylum seeker cannot place for an appeal of reunification
for the spouse if the person is married before the enactment of the act of International Protection
Act 2015.
Looking at the above clauses of the International Protection Act 2015 it can be seen that if a
person who is married after 2015 but for any reason has failed to file the application within 12
months of the date on which the international protection being granted then he or she is not
allowed to enjoy a family life as the law defines that this person has lost its eligibility to get back
his or her spouse as the person has not responded for making the application with in 12 months
of the date on which international protection has been granted to him. In that case the person who
is unhappy as he or she has been forced to stay in a foreign country is additionally being forced
16 Ostrand, N. (2015). The Syrian refugee crisis: A comparison of responses by Germany,
Sweden, the United Kingdom, and the United States. J. on Migration & Hum. Sec., 3, 255.

to enjoy a healthy family life and thus the person is becoming a victim of violation of the basic
right of an individual to live a family life as recognized by the supreme court of Ireland and
constitution of Ireland17.
Secondly as the clause of the law if a person is forced to take international protection in the
country of Ireland but is married far before the enactment of the International Protection Act
2015 he or she is no way eligible to make an appeal under the clause of family reunification to
get back their spouses in the country of Ireland where they are currently living under
international protection. Thus in this case these persons who have taken asylum in the country
has been badly victimised by the act and being violated from the basic right of enjoying a family
life18.
Thus as per the supreme court an d the Irish constitution where huge importance has been given
to the aspect of family developed by the contract of marriage and where the family is being
identified as the basic unit of a society; the International Protection Act 2015 is forcing some
people to live an unhealthy family life who have immigrated to the country under the clause of
international protection and is now part of the Irish society19.
Thus it can be said that the different above discussed clause of the International Protection Act
2015 is disturbing balance between the right of a state to control immigration and the
fundamental rights of the family as the act is preventing the immigrants from the right of
enjoying family life in the name of controlling the inflow of immigrants in the nation under the
current situation of refugee problem of Europe.
17 Thym, D. (2013). EU migration policy and its constitutional rationale: A cosmopolitan
outlook. Common Market L. Rev., 50, 709.
18 Kesby, A. (2012). The right to have rights: Citizenship, humanity, and international law.
Oxford University Press.
19 Açıkgöz, M., & Arıner, H. O. (2014). Turkey’s new law on foreigners and international
protection: An introduction. Turkish migration studies group at Oxford, Briefing Paper, 2.

International Protection act 2015 and right to reunification of family
The refugee act 1996 section 18 has provided with the right to family this has been replaced with
the international protection act 2015, the sections 56 and 57 has given the importance of family
reunification. This new legislation has replaced some of the fundamental definitions of the
legislation like the definition of family, method and procedures of appeal and associated time
limits.
As mentioned before the definition of family has been changed by the new legislation. The
marital and civic relationships have both been given the status of family. The clause of
dependent member of family has also been removed as part of this act which has involved the
grandparents, grandchildren, brothers and sisters as well who is minor and dependent. However
there has been some exclusion that has also been implemented in the act which has made the
reunification with the extended family a matter of sole discretion from the administration. The
brother, sister, grandparent and grandchildren has all been considered under extended family as
par this regulation. The dependency has also been measured on the ground of financial
dependency and nothing else. This is one section that has been highly criticised regarding this
act20. The civic relationship however has been considered as an umbrella term which has
recognised married, unmarried, non cohabiting committed relationships as well. It has also
included same sex couples in case the country of origin recognises the status of the couple. The
documentation of this relationship is also a grey area. so it has been stated that marriage customs
that are accepted in the country of origin is going to be considered as a standard by the authority
to accept as family relationships. The international protection act 2005 section 56 (3) and 57 (3)
has stated some provisions for conducting investigations on the existence of family relationship
between the applicants.
The person who is considered to be eligible for being the applicant has been specified in this
legislation as well. This legislation has stated that a refugee who is under refugee declaration and
an individual under the subsidiary protection who can be considered to be under subsidiary
20 Joyce, C., (2012). Misuse of the Right to Family Reunification: Ireland. Economic and Social
Research Institute (ESRI) Research Series.