Irish Court of Appeal overrules refusals to allow non-Irish spouses of citizens remain in the State

The Irish Court of Appeal has overruled the refusals of the Minister for Justice to allow the non-Irish spouses of three Irish citizens to remain with them in the State.

The three judge Court heard the three appeals together, all concerning High Court decisions involving Irish citizens who were legally married to non-EU citizens, in this case Nigerian nationals.

The Court concluded that the Minister had not given the Constitutional rights of the Irish citizens due consideration in accordance with the law when making his decisions in relation to the immigration status of the non-Irish spouses.

The Court differentiated between the obligations of the Minister under the Constitution and under the ECHR – wherein the Constitution takes primacy as the fundamental law of the State and the principal repository of the protection of fundamental rights in this jurisdiction. The Court found that the Minister erred in assuming that Article 8 was directly effective and the primary source of protection of rights. It was first for the Minister to consider any infringement of constitutional rights, and only if this fails that the Convention should be considered.

Further the rights espoused in Article 41 and Article 8 cannot be assumed to be similar or even identical. While the Court found there to be a good deal of overlap, it pointed out that Article 8 protects all forms of family life, including de facto families (Keegan v. Ireland), whereas the Constitutional protection in Article 41 extends only to the family based on marriage (WOR v. EH (Guardianship)). Given the language used in the Constitution, providing for “inalienable and imprescriptible rights”, the Court believed that the maximum possible degree of protection should be afforded to the family unit.

The Court acknowledged that the State has the right to control its borders and the Constitution did not impart an automatic right on citizens to have their non-national spouse reside with them in Ireland. The Court, however, found it was incorrect to say – as the Minister in effect did – that the couple’s choice to reside in the State need not be respected unless it is shown that there would be “insurmountable obstacles” to the Irish citizen moving to the country of the third country national, which is the test applied by the European Court of Human Rights in a line of Article 8 ECHR cases. According to the Court, this is where Article 41 of the Constitution goes further than Article 8 ECHR.

Of the three cases heard, two decisions to reject applications were quashed, whilst one was upheld on the basis that the spouses in question had separated.

Click here for the judgement Mr. Justice Gerard Hogan in I. Gorry & Anor v Minister for Justice and Equality.

Click here for the judgement of Ms. Justice Finlay Geoghegan in I. Gorry & Anor -v- Minister for Justice and Equality.

Click here for the judgement in A.B.M. and B.A. -v- Minister for Justice and Equality.     




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