Minister loses important Supreme Court appeals over approach to deportation cases

The Supreme Court has unanimously dismissed the Minister for Justice’s appeal over the quashing of refusals to allow the Nigerian spouses of two Irish citizens either enter or remain with them in the State.

In significant judgments with implications for at least 30 similar cases and for couples in similar circumstances, the five judge court ruled the Minister failed to properly consider and weigh the constitutional rights of the couples involved in accordance with law.

The appeals centred on how constitutional protection of the family, particularly Articles 41 and 42, should be applied in such immigration cases.

The court had to consider what approach the Minister should take when making an immigration decision concerning a non-national spouse of an Irish citizen when the latter relies on rights under the Constitution, particularly Article 41, and both spouses rely on family life rights under Article 8 of the European Convention on Human Rights (ECHR).

Four judges agreed on a particular approach for the Minister to take when asked to revoke a deportation order made against a non-Irish national who has become married to an Irish citizen, creating a family within the meaning of Article 41.

That approach was set out in a judgment of Mr Justice Donal O’Donnell, with which Mr Justice John MacMenamin, Ms Justice Elizabeth Dunne and Mr Justice Peter Charleton agreed.

In a separate judgment, Mr Justice William McKechnie set out an alternative approach but his colleagues particularly disagreed with his conclusion an Irish citizen has a constitutional right to decide to cohabit with their spouse in Ireland, which right is deserving of the “very highest level of protection in a modern democratic society”.

If full effect was given to that conclusion, there could be “far-reaching implications for a wide range of decisions”, Mr Justice O’Donnell said.

The Minister, when considering a deportation revocation application on grounds of a subsequent marriage, is not required to do so on the basis Article 41 protects an “inalienable, imprescriptible or indefeasible right” to cohabitation of a married couple which is entitled to the highest level of protection available in a democratic society, the judge said.

Article 41 protects “a zone of family life and matters” and decisions on immigration and deportation are not matters within the authority of the family, he held.

The Minister is, however, required to have regard in any such case to the rights of an Irish citizen to reside in Ireland and to marry and found a family.

The Minister must also have regard to the State’s obligation to “guard with special care” the institution of marriage; to the fact that co-habitation, the capacity to live together, is “a natural incident of marriage and the family” and that deportation will prevent cohabitation in Ireland and may make it “difficult, burdensome or even impossible” anywhere else for as long as the order stays in place.

The test under the ECHR should not be applied in the consideration of issues under the Constitution, he said.

While the Constitution and ECHR together provide extensive overlapping protection for families and marriage, it is necessary to recognise the different contexts, not least because of an “elevated position” accorded to marriage in the Irish Constitution giving the right of a citizen to reside in their own country a “particular weight”.

The Minister’s decision will depend on factors including whether a family can be said to be long-established in the State, whether the marriage was entered into after a deportation order was made and in knowledge of that order, and the circumstances giving rise to deportation, which may include the circumstances in the State seeking to deport.

These considerations did not directly arise in either of the cases before the court, he noted.

One case was by an Irish man and Nigerian woman who met here in 2006 after she failed to present for deportation under a deportation order made in 2005. They married in Nigeria in 2009 but she was refused a visa to re-enter the State. Because they have since separated, the Minister does not have to reconsider their application.

The second case involved a Nigerian woman who has Irish citizenship and her Nigerian husband who had been deported. The Court of Appeal had directed them to reapply for revocation of deportation, saying their application must be considered in accordance with law, all current facts relating to them and their Irish born child and the relevant State interests.