The Irish Supreme Court has found that the Minister for Justice erred in law when refusing to revoke deportation orders for two Nigerian nationals in lawful marriages with Irish citizens.
The Court found that the Minister had a duty to consider and properly weigh the couple’s constitutional rights and their rights under the European Convention on Human Rights (ECHR) against the important countervailing interests on the State side when conducting the balancing exercise required of him.
The case was joined two cases, Gorry v Minister for Justice and Equality and ABM & Anor v Minister for Justice and Equality, andis also applicable in Ford v Minister for Justice and Equality and Hussain & Anor v Minister for Justice and Equality.
In each case, one of the applicants was an Irish citizen married to the other applicant who was a foreign national. The marriages in question either took place in Ireland or Nigeria, and were recognised by the Minister as lawful marriages.
Both sets of applicants sought judicial review of the Minister’s refusal to revoke deportation orders for the two Nigerian citizens in the High Court. In Gorry, which was heard in 2014, the High Court concluded that an Irish born national married to a non-Irish national has a prima facie right to reside in Ireland with that other person, though such right is not absolute and the State is not obliged in every case to accept the country of residence chosen by that couple. The High Court used the same reasoning in Ford in 2015 to issue an order of certiorari.
However, in ABM, which was heard the 2016, the High Court took the view that the idea of a prima facie right to reside in Ireland needs “slight rephrasing”, preferring to state that the couple “should receive prima facie acknowledgment and consideration of their status under Article 41 of the Constitution” but that the same does not amount to a prima facie right.
The Minister, in turn, appealed all three decisions to the Court of Appeal. The Court concluded that an Irish citizen does not have an absolute right to have their spouse reside with them. However, the Court emphasised the duty of the Minister to thoroughly consider the rights of the couple as a family within the meaning of the Irish Constitution and the rights of the individual as a citizen and to balance such rights against the interests of the State to determine whether an individual may reside in Ireland with their Irish spouse. The result will differ from case to case.
The Court of Appeal ruled the Minister had erred in finding that Article 41 of the Constitution goes no further than Article 8 of the ECHR, and the State is not obliged to respect married couple’s choice of residence. The Court thus upheld the decisions of the High Court in Gorry and Ford, ruling that an Irish and non-Irish couple have a prima facie constitutional right to reside in Ireland, subject to lawful regulation.
The Supreme Court concluded that the Minister did not properly elevate the constitutional rights of the applicants under 41 of the Constitution to the position that he should have. The Court stated that it is a balancing act and if the Minister were to properly balance the two interests together and decide that the rights of the State must prevail, he is permitted to proceed with his decision.
The Court did not remit the matter to the Minister for a fresh decision as both matters were moot at the present time.
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