Between:

By letter of 20.08.2015, Ms C, a refugee who hails originally from Somalia, made a family reunification application, pursuant to s.18(4) of the Refugee Act 1996, in respect “of her niece…based on her guardianship of this minor child”. By letter of 02.09.2015, the Minister replied indicating that he “[would] not accept this application until original guardianship papers referred to in your letter are submitted with a new letter of application”. There was no mention of “guardianship papers” in the letter of 20.08.2015. Ms C was proceeding on the basis of the looser (de facto) form of guardianship contemplated, e.g., in Ducale & anor v. MJE and ors [2013] IEHC 25. It is clear from his initial reply letter that the Minister conceived of Ms C’s application as one that could only be based on a formal, legally determined (what might be styled ‘de jure’) guardianship, when in truth Ms C had wanted and was entitled to proceed on the looser Ducale-style notion of guardianship. By decision of 14.09.2018, the Minister refused the reunification application on the basis that Ms C had failed to establish legal (de jure) guardianship pursuant to an application in which from the outset she (i) had wanted to claim looser Ducale-style guardianship, and (ii) was effectively precluded by the Minister from so doing on what can only have been a mistaken apprehension on his part that the law required that Ms C establish de jure guardianship to succeed in her application. The Minister’s decision to refuse to consider Ms C’s application unless she confined it to de jure guardianship was unreasonable, yielding the result that the end-decision of 14.09.2018 was also unreasonable. For the court to conclude otherwise would be to stand over a basic unfairness of procedure whereby Ms C was mistakenly corralled into proceeding in the only manner that the Minister was prepared to countenance based on what appears to be his misapprehension as to the law as it pertained at the time of the application (post-Ducale). The court will grant the reliefs sought at items (1) and (2) of the originating notice of motion.