FIFTH SECTION

DECISION

Application no. 54387/20 M.T. against Ireland

The European Court of Human Rights (Fifth Section), sitting on 6 April 2023 as a Committee composed of:

Mārtiņš Mits , President , Síofra O’Leary, María Elósegui , judges , and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 54387/20) against Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 9 December 2020 by a Cameroonian national, M.T., who was born in 1976 and lives in Dublin (“the applicant”) and who was represented by Mr A. Llussà, a solicitor practising in Dublin;

the decision to give notice of the application to the Irish Government (“the Government”), represented by their Agent, Mr B. Lysaght of the Department of Foreign Affairs;

the decision not to have the applicant’s name disclosed;

the observations submitted by the respondent Government and the observations in reply submitted by the applicant;

the comments submitted by the AIRE Centre, which was granted leave to intervene by the President of the Section, and the Government’s reply to those comments.

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. This case concerns the applicant’s unsuccessful attempts to bring about family reunification in Ireland. Before the Court he complains under the family life head of Article 8 alone as well as in conjunction with Article 14, and also under the private life head of Article 8.

2. The applicant arrived in Ireland in 2006 from his native Cameroon. He initially sought asylum. When this was not granted, he sought subsidiary protection, which was granted in June 2014. He then sought permission to be joined in Ireland by two children, born in 2000 and 2002, who were living in Cameroon. On their birth certificates, the applicant is named as the father.

3. At the time of first applying for family reunification, in early 2015, the issue was regulated by the European Union (Subsidiary Protection) Regulations 2013 (“the 2013 Regulations”). Under those regulations, an application could be made to the Minister for Justice and Equality by a “qualified person”, known as the sponsor, to grant permission to a member of their family to enter and reside with them in Ireland. In this context, the term “member of the family” meant the immediate relatives of the sponsor, i.e., their spouse/partner and their children under the age of 18. Where it was shown that the person concerned was a member of the sponsor’s family in this sense, the Minister was required to grant the application (unless one of the specific grounds for refusing applied). The 2013 Regulations also provided for the admission to the State of a “dependent member of the family”. This term was defined more broadly and included children for whom the person was legally responsible, i.e., wards. In this respect, the granting of permission was at the discretion of the Minister.

4. As the applicant himself had expressed some doubts about his paternity, he was invited by the immigration authority to consent to a DNA test. He declined, stating that he had some suspicions that he might not be their biological father. Were this to be confirmed by DNA testing, he would not be able to face that reality. He indicated that he was in the process of seeking a court order from Cameroon to confirm that he was the sole legal guardian of the children. In August 2016 the applicant was informed that as he was not in a position to undergo DNA testing, the Minister had used her discretion to decide not to grant the application for family reunification. He was informed that if he was granted guardianship of the children, and if this was recognised in Ireland, then he could make a further application for family reunification as they would then be considered “dependent member[s] of the family” under the 2013 Regulations.

5. The law changed on 31 December 2016, with the entry into force of the International Protection Act, 2015 (“the 2015 Act”), which repealed and replaced the 2013 Regulations. The 2015 Act is of narrower scope. As far as minor children are concerned, it is only the sponsor’s own children who are eligible for permission to enter and reside in the country.

6. In March 2017 the applicant again applied for family reunification, providing a copy of a 2016 decision by a court in Cameroon granting him guardianship of the two children. Again, the issue of DNA testing was raised. The applicant maintained his previous position and submitted that as he had provided birth certificates and a guardianship decision it was not justified to seek further evidence of his relationship to the children. He further contended that the term “child”, as used in Section 56 of the 2015 Act, should not be interpreted as limited to the sponsor’s biological or adopted children.

7. On 29 May 2018 the application was refused. The reasoning provided for the decision summarised the available evidence and information, noting specifically that the authorities had not found any obvious signs of alteration of the documents provided, and concluded that the applicant had failed to establish the familial link between himself and the children.

8. The applicant challenged that decision. On 3 May 2019, the High Court quashed it, holding that the Minister had incorrectly interpreted the relevant provision of the 2015 Act as only applying to biological or adopted children.

9. The Minister appealed. The applicant brought a cross-appeal. Insofar as relevant to the present application, he challenged the lawfulness of the requirement, applied by the Minister, that he undergo a DNA test, in view of the absence of any further statutory guidance or safeguards regarding such testing.

10. The case was accepted to be heard directly by the Supreme Court, which considered that the case involved an issue of general public importance. It issued its ruling on 9 June 2020, overturning the High Court’s decision on the interpretation of the word “child” in the 2015 Act, finding that the Minister had correctly construed it.

11. The judgment also considered the issue raised about DNA testing, noting that the Act places a duty on the Minister to investigate the relationship between sponsor and beneficiary, and an obligation on those applying for family reunification to cooperate. The Minister was not permitted to order the applicant to submit to a DNA test but was entitled to request that it be done. As it had been the applicant himself who had raised doubts about his paternity of the children, it was difficult to see what other course was open to the Minister. The request was therefore reasonable and appropriate and could not be seen as an impermissible interference with the applicant’s privacy.

12 . The court described it as unfortunate that no guidelines had been published in relation to DNA testing in this context. It continued:

“115. The only other observation to be made in relation to DNA testing is that it is not something that should be sought or requested as a matter of routine. It is something that should only arise in the limited circumstances where serious doubt has been raised as to the issue of paternity. There is no doubt that DNA testing has implications for the right to privacy and that as such, care should be taken before seeking that an individual undergo DNA testing to establish paternity. It would be inappropriate if the Minister were to do so as a matter of course and therefore I would be of the view that resorting to DNA testing should be limited to cases of ‘serious doubt’.”

relevant legal framework

13. The 2013 Regulations were adopted for the purpose of giving further effect to Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ L 304/12 of 30.9.2004). They were repealed when the 2015 Act came into force on 31 December 2016.

14 . Section 56 of the 2015 Act provides, as relevant:

“(1) A qualified person (in this section referred to as the ‘sponsor’) may [...] make an application to the Minister for permission to be given to a member of the family of the sponsor to enter and reside in the State.

(2) The Minister shall investigate, or cause to be investigated, an application under subsection (1) to determine -

(a) the identity of the person who is the subject of the application,

(b) the relationship between the sponsor and the person who is the subject of the application, and

(c) the domestic circumstances of the person who is the subject of the application.

(3) It shall be the duty of the sponsor and the person who is the subject of the application to co-operate fully in the investigation under subsection (2), including by providing all information in his or her possession, control or procurement relevant to the application.

(4) ... [I]f the Minister is satisfied that the person who is the subject of an application under this section is a member of the family of the sponsor, the Minister shall give permission in writing to the person to enter and reside in the State ...

...

(9) In this section and section 57 , ‘member of the family’ means, in relation to the sponsor -

...

(d) a child of the sponsor who, on the date of the application under subsection (1), is under the age of 18 years and is not married.”

15. Section 3(1) of the European Convention on Human Rights Act 2003, provides:

“Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.”

16. In their submissions the Government referred to the Policy Document on Non-EEU Family Reunification, first published in December 2013 and updated in 2016 in light of the 2015 Act. This text sets out the guidelines relevant to decision making where family reunification is at the discretion of the Minister. The Policy Document indicates that, inter alios , children in the care of the sponsor may be granted permission to enter and reside with them in the country (Section 13). It defines a minimum level of income that the sponsor should satisfy before family reunification is granted (Section 17). The guidelines laid out in the Policy Document can be waived for “those rare cases that present an exceptional set of circumstances, normally humanitarian, that would suggest that the appropriate and proportionate decision should be positive” (Section 1).

17. The Policy Document refers to the obligation on all State authorities under the European Convention on Human Rights Act 2003 to perform their functions in a manner compatible with the Convention (Section 2).

THE COURT’S ASSESSMENT

18. The applicant relied on Articles 8 of the Convention, which provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

He relied as well on Article 14, which provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

19. The Government contested the admissibility of the application, arguing that the applicant had failed to exhaust domestic remedies in that he had not requested family reunification under the provisions of the Policy Document and had failed to raise his complaint of discrimination, even in substance, before the domestic courts. Regarding the former, the Government pointed out that the applicant, who did not satisfy the financial criteria referred to above, could have requested the Minister to waive them in his case, but had not done so.

20. The applicant replied that he had raised before the domestic courts his complaints under Articles 8 and 14 of the Convention, although the Supreme Court had ultimately not engaged with them. As for the Government’s reference to the Policy Document, the applicant submitted that as the Minister had failed to rely on this argument during the domestic proceedings, the respondent State should not be permitted to raise it now. Regarding the financial criteria, the applicant observed that the Minister had not offered to disapply them in his case. Nor had the Government provided the Court with any information showing how often, if at all, these criteria were waived in practice, which would be indicative of the effectiveness of this suggested remedy. As any waiver would be at the discretion of the Minister, this could not be seen as a domestic remedy that needed to be exhausted.

21. The Court considers that the possibility of family reunification under the Policy Document, and the fact that the applicant did not at any time apply for this, have to be regarded as highly relevant to the admissibility of this case.

22. It observes that the applicant’s course of action was to seek family reunification under provisions that, where the necessary familial link was established, would have placed the Minister under a duty to grant the permission requested (Regulation 26 of the 2013 Regulations, then section 56(4) of the 2015 Act – see paragraph 14 above). As a result, the focus of the domestic proceedings was principally on the correct interpretation of the word “child” in the relevant provision of the 2015 Act. The Supreme Court ruled that the term could not be given the wider interpretation contended for by the applicant. As his paternity of the two children had not been clarified, owing to his own expression of doubt and his refusal for the reason stated above to submit to DNA testing, family reunification on this particular basis could not be granted.

23. The essence of the applicant’s complaint is that he was not given permission to bring the two children to live with him in Ireland, which he regards as a failure by the Irish authorities to respect his family life. Yet it is clear that such permission could have been sought under the Policy Document. The Court can appreciate that for the applicant, the 2013 Regulations on which he initially sought to rely represented the best prospect of obtaining family reunification, and that he attempted to preserve that prospect in the domestic proceedings by arguing for a wider interpretation of the 2015 Act in line with the previous regulations. However, family reunification could also have been sought under the terms of the Policy Document, which was already in place when the applicant was granted subsidiary protection in 2014. As noted above, the potential beneficiaries include children in the care of the sponsor.

24. The Court notes that while the granting of family reunification under the Policy Document is at the discretion of the Minister, the latter is bound, under section 3 of the European Convention on Human Rights Act, to exercise that discretion compatibly with the State’s obligations under the Convention. The extent to which that obligation has been respected in a given instance can be tested in judicial review proceedings (see Z.A. v. Ireland , [CTE], no. 19632/20, § 109, 9 March 2023). While the parties have addressed the issue of the non-recourse to this procedure in terms of the obligation to exhaust domestic remedies, the Court considers that it goes instead to whether the respondent State can be said to have ultimately refused family reunification, and thus to have potentially breached the applicant’s right to respect for family life and to have discriminated against him. The Court notes that in the domestic proceedings the principal matter in dispute between the parties was the issue of the interpretation of the 2015 Act, which was the reason the case went directly to the Supreme Court on appeal. The merits of the applicant’s request that the children be permitted to join him in Ireland were not at issue. It does not appear that they were directly considered at any stage, owing to the legislative change effected by the 2015 Act.

25. In sum, what the applicant sought from the Minister was something that she did not have the legal authority to grant under the relevant provisions of the 2015 Act, the meaning of which was ultimately clarified by the Supreme Court. Given that there was at all relevant times another procedure by which the merits of the applicant’s request for family reunification could have been examined by the Minister and possibly granted, the Court considers that this case does not in fact reveal a refusal or failure by the domestic authorities to respect the family life of the applicant and the children.

26. As for the applicant’s complaint regarding DNA testing, the Court observes that the question only arose because of the basis on which he chose to seek family reunification. As it has reasoned above, the applicant could have applied for this under the Policy Document. Such a request would have been eligible for consideration on the basis that he had guardianship of the two children, the Supreme Court having noted that there was no reason to doubt the authenticity of the decision of the Cameroonian court that he submitted to the domestic authorities. The Court therefore cannot find that in these circumstances the request of the authorities that he agree to a DNA test represented an interference with the applicant’s right to respect for private life.

27. However, the Court would mark its agreement with the comments of the Supreme Court, which it has set out at paragraph 12 above, about the importance of limiting recourse to DNA testing to establish paternity in this context, given its implications for the private life of those concerned. The Court has held in its case-law that the taking of cellular samples for the purpose of DNA testing constitutes an interference with the right to respect for the individual’s private life, and consequently has emphasised the need for a sufficiently detailed and robust regulatory framework (see for example S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 71-73 and §§ 95-99, ECHR 2008).

28. In the particular circumstances of this case, however, the Court finds that the complaints raised by the applicant under Articles 8 and 14 of the Convention have not been made out, and that the application is accordingly inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 4 May 2023.

Martina Keller Mārtiņš Mits Deputy Registrar President