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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Gorry & anor v Minister for Justice and Equality and A B M v Minister for Justice and Equality (Unapproved) (Rev 1) [2020] IESC 55_2 (23 September 2020) URL: http://www.bailii.org/ie/cases/IESC/2020/2020IESC55_2.html Cite as: [2020] IESC 55_2 |
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THE SUPREME COURT
McKechnie J
MacMenamin J
Dunne J
Charleton J
Supreme Court Record No. 2018 / 9
Court of Appeal Record No. 2014 / 1161
High Court Record No. 2012 / 859 JR
Between /
I. GORRY and JOSEPH GORRY
Applicants / Respondents
-and-
THE MINISTER FOR JUSTICE AND EQUALITY
Respondent / Appellant
and
Supreme Court Record No. 2018 / 11
Court of Appeal Record No. 2017 / 31
High Court Record No. 2015 / 449 JR
Between /
A.B.M. and B.A.
Applicants / Respondents
-and-
THE MINISTER FOR JUSTICE AND EQUALITY
Respondent / Appellant
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 23rd day of September, 2020
Introduction
1
.
This judgment concerns two appeals which
raise the same general issues of principle concerning the appropriate approach
required by a decision-maker (most likely the Minister) to an immigration
decision concerning the non-national spouse of an Irish citizen. In each case
the Applicants are a lawfully married couple comprising one Irish citizen and a
non-national spouse; as it happens, each of the non-national spouses is a
Nigerian national. The Minister (also referred to as “the Appellant”) has made
deportation orders in respect of these foreign spouses. Each set of Applicants
made an application to the Minister to revoke the respective deportation
orders, but both were unsuccessful in this regard. Accordingly, the Applicants issued
judicial review proceedings seeking, inter alia, an order of certiorari
quashing the Minister’s refusal to revoke such orders.
2. The Applicants in the first set of proceedings were successful before Mac Eochaidh J (see Ifeyinwa Gorry and Joseph Gorry v. Minister for Justice and Equality [2014] IEHC 29). In the course of his judgment, the learned judge concluded that an Irish 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.
3.
However, the High Court took a different
approach in respect of the second set of Applicants, who were refused the
reliefs sought (see A.B.M. and B.A. v. Minister for Justice and Equality [2016]
IEHC 489). Humphreys J 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.
4. In a further case also raising the same general issue (where the relevant decision of the Minister was a refusal to grant a visa to the Nigerian spouse of the Irish citizen applicant), Eager J broadly followed the approach of Mac Eochaidh J in Gorry and found for the applicant, granting an order of certiorari in respect of the Minister’s decision: see Ford & Anor v. Minister for Justice and Equality [2015] IEHC 720.
5. These judgments were appealed (in Gorry and Ford, by the Minister, and in ABM by the applicants) to the Court of Appeal, which delivered judgment in each of them on the 27th October, 2017: see I. Gorry and Joseph Gorry v. Minister for Justice and Equality [2017] IECA 282 (containing the discussion in respect of the substantive issues in each of the cases) and A.B.M. and B.A. v. Minister for Justice and Equality [2017] IECA 280 and Ford & Anor v. Minister for Justice and Equality [2017] IECA 281 (short, supplementary judgments).
6.
The Court of Appeal allowed the appeal by Mr
ABM, who was the individual directly involved, and dismissed the Minister’s
appeals in Gorry and Ford. Its conclusions on the matters of
principle were set out in the judgments of Finlay Geoghegan and Hogan JJ in Gorry.
Although the Court did not uphold the reasoning of Mac Eochaidh J in the High
Court, insofar as the Court of Appeal stated that it is not correct to say that
the couple have a prima facie constitutional right to live in Ireland
pursuant to Article
41 of the Constitution, it was satisfied that the outcome of
Gorry was correct in that the Minister had taken a legally incorrect
approach to the assessment, consideration and determination of the
applications. The same applied to ABM. The reasons supporting each
decision are set out in detail below. In short, it took the view that the
Minister erred in applying the same approach to the State’s obligations in
relation to the constitutional rights of the Applicants as was done in relation
to its obligations pursuant to section 3 of the European Convention on Human
Rights Act 2003, having regard to
Article
8 of the European Convention on Human
Rights. In so doing, it held that the protections of
Article
41 of the
Constitution are stronger than those contained in
Article
8 ECHR and that the
Minister had erred in not subjecting the Applicants’ constitutional claim to
any detailed analysis independent of that conducted in respect of
Article
8
ECHR.
7.
Another judgment of relevance is that of Mac
Eochaidh J in A H and K O’L v. Minister for Justice and Equality (ex
tempore, High Court, Mac Eochaidh J, delivered on the 11
th
October, 2016) (“A H v. Minister for Justice”). Again the case involved the
refusal by the Minister to revoke a deportation order in respect of the foreign
(i.e. not a national of the EU or an EEA state) spouse an of Irish citizen. In
large part the learned judge adopted and followed his own earlier judgment in
the case of Gorry and granted certiorari of the Minister’s
decision. The Minister similarly appealed this matter to the Court of Appeal
but for procedural reasons was unable to get the case on for hearing alongside Gorry,
Ford and ABM.
8. The Minister sought and was granted leave to appeal to this Court in respect of each of these four cases. Leave was granted on the basis that the cases raise issues of general public importance which require clarity. These issues concern an area of sensitive Government activity in terms of immigration policy and have the potential to impact large numbers of Irish citizens and their non-national spouses. It is agreed by the parties and was accepted by the Court of Appeal that the constitutional issues raised in this case have not been considered in recent times by an appellate court.
9. This Court listed the four cases together for case management, during which process it was decided that the appeals in Gorry and ABM would proceed to hearing, with the resolution of those appeals determining the outcome of the other two matters also. This judgment covers both cases. It should be noted at the outset that, for reasons set out below, both Gorry and ABM are now moot, but this Court took the view that they should nonetheless be determined, given the constitutional importance of the issues raised.
10.
The Minister says that the approach adopted
by the Court of Appeal is unduly prescriptive, likely to give rise to practical
difficulties in its implementation, and inconsistent with the previous
jurisprudence of this Court. To properly consider these complaints, it is
necessary to address wide-ranging and fundamental issues concerning the nature
of the protections afforded by Article
41 of the Constitution and the relationship
of that provision with
Article
8 ECHR. This judgment concerns the nature of the
rights which the Applicants possess under the Constitution and how these rights
must be approached by the Minister when considering an application to permit
the non-national spouse to enter, remain or reside in the State. Fundamentally,
such applications bring into conflict undeniably weighty concerns on both
sides: the very understandable private interests of the spouses in living
together, on the one hand, and the clear public interest in the State being able
to exercise effective control over its immigration system, on the other. What
is needed, ultimately, is a careful balancing of the considerations on each
side. That, of course, is an exercise which must be conducted by the Minister –
it is not for the courts to dictate immigration policy. However, the Minister
must consider such applications in a lawful manner. This necessitates the
proper identification and weighing of the interests on both sides and the
application of the correct test so as to arrive at a reasonable and
proportionate decision. This judgment aims to clarify how that exercise should
be conducted.
Constitutional, Statutory and International Framework
11
.
At the outset it may be helpful to set out
in one place a number of constitutional, statutory and ECHR provisions to which
repeated reference will be made over the course of this judgment. To start with
the Constitution of Ireland,
Article
2 thereof states that:
“It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish Nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland. Furthermore, the Irish nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage.”
12.
Article
40.3.
1
° of the Constitution provides
that:
“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”
13.
Article
41.
1
of the Constitution states as
follows:
“1
° The State recognises the Family as the natural primary and
fundamental unit group of Society, and as a moral institution possessing
inalienable and imprescriptible rights, antecedent and superior to all positive
law.
2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.”
Article
41.3.
1
° of the Constitution provides that:
“The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.”
14.
Article
8 of the European Convention on
Human Rights (“the ECHR” or “the Convention”), headed “Right to respect for
private and family life”, provides as follows:
“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.”
15.
As will be seen, a major issue in this case
concerns the relationship between Article
8 ECHR and
Article
41 of the
Constitution. The ECHR, of course, is not in itself a part of domestic Irish
law for the purposes of
Article
29.6 of the Constitution. Its provisions cannot
be directly applied in the Irish courts by a litigant seeking to protect their
rights. The Oireachtas has elected to give effect to the Convention by enacting
the European Convention on Human Rights Act 2003 (“the 2003 Act”), the long
title of which explains the object of the Act as being to “enable further
effect to be given, subject to the Constitution, to certain provisions of the
[Convention] and certain Protocols thereto”. Section 3(
1
) of the 2003 Act
provides that:
“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.”
Thus the Minister, as an organ of the State, is required to perform his functions in a manner compatible with the State’s obligations under the Convention.
16.
Section 4(1
) and (2) of the Immigration Act
2004 (“the 2004 Act”) provide as follows:
“4.—(1
) Subject to the provisions of this Act, an immigration
officer may, on behalf of the Minister, give to a non-national a document, or
place on his or her passport or other equivalent document an inscription,
authorising the non-national to land or be in the State (referred to in this
Act as ‘a permission’).
(2) A non-national coming by air or sea from a place outside the State shall, on arrival in the State, present himself or herself to an immigration officer and apply for a permission.”
Sections 5(1
) and (2) of the 2004 Act
provide that:
“5.—(1
) No non-national may be in the State other than in accordance
with the terms of any permission given to him or her before the passing of this
Act, or a permission given to him or her after such passing, by or on behalf of
the Minister.
(2) A non-national who is in the State in contravention of
subsection (1
) is for all purposes unlawfully present in the State.”
17.
Section 3 of the Immigration Act 1999 (“the
1999 Act”) provides, in subsections (1
) and (
11
), as follows:
“3.—(1
) Subject to the provisions of section 3A [prohibition of refoulement]
and the subsequent provisions of this section, the Minister may by order (in
this Act referred to as ‘a deportation order’) require any non-national
specified in the order to leave the State within such period as may be specified
in the order and to remain thereafter out of the State.
(11
) The Minister may by order amend or revoke an order made under
this section including an order under this subsection.”
Factual Background and Procedural History - Gorry case
18. The First Named Respondent, Ms Gorry, is a Nigerian citizen. The Second Named Respondent, Mr Gorry, is an Irish citizen. A chronology of the relevant events and dates has helpfully been agreed by the parties.
19. On the 24th June, 2005, a deportation order was signed in respect of Ms Gorry, who is asserted to have been in the State since the 30th March 2005. She was notified of the order on the 21st September 2005 and required to present to the Garda National Immigration Bureau (“GNIB”) on September 29th. She did not do so and thereafter remained in the State, evading deportation.
20. It seems to be accepted that the Respondents met for the first time in 2006. Three years later, in September 2009, they left the State to travel to Nigeria where they married; the validity and legality of such marriage has never been questioned by the Minister. The Respondents say (and it has not been contradicted or challenged) that they were advised by the Immigration Office in Dublin that they should marry in Nigeria and then apply for a visa for Ms Gorry to enter the State. On the 16th December, 2009, applications were submitted for a visa permitting Ms Gorry to travel to Ireland and for the revocation of the deportation order made against her. The basis for this application seems to have been the change in her circumstances following her marriage to Mr Gorry. These applications were refused on the 3rd February, 2010.
21. Mr Gorry visited his wife in Nigeria in March 2010. Without dwelling too much on the details, it is evident from the papers in these proceedings that Mr Gorry found this visit very difficult because of the heat and humidity in Lagos. He returned to Ireland on the 20th March and suffered a heart attack three days later. He was treated by angioplasty and a coronary stent. These facts were of significance for the decision made by the High Court in these proceedings (see para. 30, infra). Although they are not particularly germane to the issue of high constitutional principle at the core of the appeal to this Court, it is worth observing at this juncture that Mr Gorry averred that due to his heart condition he would be unable to travel to Nigeria again to see his wife. He says that his doctors advised him that he should not fly, let alone go to Nigeria for any amount of time, and that it would be very risky for him to go to Nigeria due to the lack of sufficient medical treatment if he were to suffer a further attack.
22. On the 2nd November 2010, the Gorrys made a second application to revoke the deportation order in respect of Ms Gorry. This fresh application was based, in large part, on the health problems suffered by Mr Gorry subsequent to his trip to Nigeria, the difficulties which he would have in receiving adequate medical treatment for his heart condition if he was to relocate to that country, and the fact that he had been warned by his doctors not to travel by air, thus preventing him from visiting his wife. However, by decision dated the 17th July, 2012, this application was also refused.
23.
It is this decision that is challenged in
the Gorry proceedings. It is therefore worth referring to it terms. The
Minister accepted that family life within the meaning of Article
8 ECHR arises
between Mr and Ms Gorry. The Appellant referred to the jurisprudence of the
European Court of Human Rights, the UK courts and the courts in this
jurisdiction (discussed below), concluding that such case law establishes that
removal or exclusion of one family member from a State where other members of
the family are lawfully present will not necessarily infringe
Article
8
provided that there are no “insurmountable obstacles” to the family living
together in the country of origin of the excluded member, even where this
involves a degree of hardship for some or all family members. The decision
refers to the country of origin information in relation to healthcare in
Nigeria (acknowledging limitations therewith) and concludes that it is not accepted
there are insurmountable obstacles to Mr Gorry settling in Nigeria, or that
treatment for his medical condition would not be available there.
24.
The Minister’s decision then recounts and
applies the principles extracted by Lord Phillips in R. (Mahmood) v. Home
Secretary [2001] 1
W.L.R. 840 at p. 861 relevant to the deportation or
exclusion of a family member (in respect of which see para. 141, infra),
concluding that:
“[I]t is clear that where a person establishes family ties in a
State while fully aware that he/she has no lawful residency, or entitlement to
such in the State, it will only be in exceptional circumstances, or for
compelling reasons, that the enforcement of an existing deportation order will
be contrary to or in breach of Article
8. The question to be determined in the
instant case therefore is whether such exceptional circumstances arise.
Having considered all the facts in this case, it is submitted that
no exceptional circumstances arise in the case such that a decision to
re-affirm the deportation order in respect of [Ms Gorry] would constitute a
violation of Article
8.”
25. The decision then considers the revocation application by reference to the Constitution. It provides as follows:
“With
regard to the rights of a non-national married to an Irish citizen or a person
entitled to reside in the State, it is accepted that family rights under
Article
41 of the Constitution arise. However, these rights are not absolute
and may be restricted. As found by the Courts, there appears to be no authority
which supports the proposition that an Irish citizen or a person entitled to
reside in the State may have a right under
Article
41 of the Constitution to
reside with his or her spouse in this jurisdiction. Reference is made to the
consideration of the position of the couple, as well as the rights of the State
under
Article
8 consideration above and the conclusions reached therein.
All factors relating to the position and rights of the family have been considered, and these have been considered against the rights of the State. In weighing these rights, it is submitted that the factors relating to the rights of the State are weightier than those factors relating to the rights of the family. It is submitted that a decision to re-affirm the deportation order in respect of [Ms. Gorry] is not disproportionate as the State has a right to uphold the integrity of the immigration system and to operate a regulated system for the control, processing and monitoring of non-national persons in the State.”
26. This portion of the decision concludes by noting that “there are no new exceptional circumstances presented beyond those previously considered by the Minister which would warrant the revocation of the Deportation Order signed in respect of [Ms Gorry].” Accordingly, her application was refused.
27. Ms Gorry returned to Ireland on or about the 15th September, 2012, two months after the second refusal, without the permission of the Minister.
High Court Judgment - Gorry
28.
On the 15th October, 2012, Mr and
Ms Gorry were granted leave to seek an order of certiorari quashing the
Minister’s decision to affirm the Deportation Order and a declaration that
their legal and constitutional rights had been infringed by the Minister’s
failure to acknowledge, weigh and consider those rights. They argued, inter
alia, that no sufficient proportionality assessment was undertaken, that
the Minister had failed to properly consider their family life, in breach of
Article
41 of the Constitution, and that he had erred in law in applying the
“insurmountable obstacles” test as it was unreasonable in the circumstances to
expect Mr. Gorry to settle in Nigeria.
29. The judgment of the High Court was delivered by Mac Eochaidh J on the 30th January, 2014 (Ifeyinwa Gorry and Joseph Gorry v. Minister for Justice and Equality [2014] IEHC 29). The learned judge quashed the decision of the 17th July, 2012.
30. The judgment sets out in detail the heart problems suffered by Mr Gorry after his trip to Nigeria in March 2010. It also refers to the documentation submitted to the Minister as part of the second application to revoke the deportation order, much of which related to these health problems; apparently there was some uncertainty as to whether all of the documentation submitted was in fact considered as part of the application, but that concern no longer exists. Mac Eochaidh J, referring to the decision of Bingham L.J. in E.B. (Kosovo) v. Secretary of State for the Home Department [2008] UKHL 41, the decision of the UK Court of Appeal in V. W. (Uganda) and A. B. (Somalia) v. The Secretary of State for the Home Department [2009] EWCA Civ 5 and the decision of Clark J in Alli and Alli v. Minister for Justice, Equality and Law Reform [2009] IEHC 595, was of the view that the proper test is not assessed by reference to an insurmountable obstacles standard, but rather by asking: is it reasonable to expect a spouse to join the removed or excluded spouse in his or her country of residence? He therefore found that the Minister erred in law in applying the insurmountable obstacles test and had also erred in stating that the Gorrys had failed to show that there was no treatment available for Mr Gorry’s medical condition in Nigeria.
31.
More significant, for the purposes of this
appeal, are the learned judge’s findings in respect of the Gorrys’ arguments
concerning Article
41 of the Constitution. He referred to the numerous
authorities indicating that an Irish and non-Irish married couple do not have
automatic rights to reside together simply by virtue of marriage and that the
State is not obliged to respect the residence choices made by such couples
(see, e.g. A.A. v. The Minister for Justice, Equality and Law Reform
[2005] 4 IR 564, Cirpaci v. The Minister for Justice [2005] 4 IR 109
and S(P) and E(B) v. The Minister for Justice, Equality and Law Reform
[2011] IEHC 92). Nonetheless, he was of the view that the jurisprudence equally
establishes that marriage between a national and non-national may engage a right
of residence in the State which could only be denied for countervailing
purpose. The learned judge therefore stated as follows at para. 42:
“Having reviewed all of these decisions, my view is that an Irish
national married to a non-Irish national has a constitutional right to reside
in Ireland with that other person, subject to lawful regulation. The right is
not absolute. The State is not obliged in every case to accept the country of
residence chosen by such a couple. Though I believe such a prima facie
right exists, not every set of circumstances will engage the right. The couple
who marry on a whim in a drive-in church in Las Vegas having met earlier in the
evening, may well find that their circumstances do not trigger the respect for
marriage reflected in the provisions of Article
41 of the Constitution and a
consequential right to reside in the State.”
32. It was against this backdrop that the Minister’s assessment of the Gorrys’ application was examined, with the relevant section of the Minister’s decision being set out at para. 25, supra. The learned High Court judge stated as follows:
“This
is a mistaken understanding of the law. The starting point in any consideration
where a mixed Irish and non-Irish nationality couple seeks to live in Ireland
is that they have a prima facie right to do so by virtue of Article
41
of the Constitution. It is recalled that
Article
41.3 pledges the State to
guard with special care the institution of marriage. The circumstances of the
marriage will indicate whether that right is engaged. If engaged, the State is
entitled to supervise the right by requiring an entry visa for the
non-national, for example. The mere fact that it is engaged does not mean that
it cannot be trumped by a lawful countervailing purpose which must ensure that
the denial of the right of residence is proportionate to the policy objective
sought to be achieved. … In my view, the Minister and his officials erred in
failing to acknowledge the rights which the applicants enjoyed. It was wrong to
start the analysis of the constitutional position by denying that there were
any constitutional rights to reside with one’s spouse involved.” (para. 44)
33.
He went on to observe that insofar as the
couple’s Article
41 rights were made referable to the consideration of their
rights under
Article
8 ECHR, the wrong test had been used in respect of the
latter and this error therefore infused the consideration of constitutional
rights also. The learned judge further referred to the conclusion in the
Minister’s assessment file that “there are no new exceptional circumstances
presented beyond those previously considered by the Minister which would
warrant the revocation and the Deportation Order”, holding that (i) he was not
aware of any rule of law requiring “exceptional” new circumstances; (ii) (and in
any event) even if the law required exceptionality, Mr Gorry’s serious heart
disease surely satisfied this criterion; and (iii) any conclusion that his
heart disease constituted “exceptional new circumstances” but was not
sufficient to warrant revocation would be unlawful.
34. Finally, Mac Eochaidh J rejected the Minister’s contention that the poor immigration history of Ms Gorry should disentitle the couple to the reliefs sought. This point has been raised again on this appeal and is referred to in further detail at paras. 211-214, infra.
35. For the sake of the narrative, it should be noted at this point that Mr and Ms Gorry separated some time after the judgment of the High Court; the Minister was informed of this on the 6th December, 2016. Although that gives rise to an element of mootness, both the Court of Appeal and now this Court have determined to hear the Minister’s appeal nonetheless, given the importance of the issues raised.
Factual Background and Procedural History - ABM case
36. Before continuing the journey of the Gorry proceedings into the appellate arena, it is necessary first to take a detour so as to consider the history of the ABM case, for both appeals were heard together by the Court of Appeal.
37. Again, there is very little dispute at a factual level as to the circumstances of the ABM proceedings and a chronology of the relevant dates for present purposes has likewise been agreed by the parties. The First Named Respondent, Mr. ABM, is a national of Nigeria. So too is the Second Named Respondent, Ms BA, though, as will be seen, she became an Irish citizen in 2013.
38. Mr ABM claims that he left Nigeria for Italy, via Togo, in August 1999. Ms BA applied for asylum in Ireland on the 21st September, 2000. Both Respondents left children of previous relationships behind in Nigeria. Ms BA obtained a divorce from her first husband in January 2001. On the 28th August, 2002, the Refugee Applications Commissioner (“the RAC”) refused to recommend Ms BA’s asylum claim.
39. On the 13th September, 2006, Mr ABM, having arrived in the State, applied for asylum.
40.
The Respondents assert that they entered a religious marriage (which is said
not to have been legally binding and was not a lawful marriage for the purposes
of Article
41 of the Constitution) on the 21st October, 2006. The Appellant
states that he was not informed of this ceremony until representations were
received in January 2014.
41. On the 8th March, 2007, the RAC recommended the refusal of Mr ABM’s asylum claim. His appeal to the Refugee Appeals Tribunal (now the International Protection Appeals Tribunal) was refused, as was his subsequent application for subsidiary protection.
42. On the 26th June, 2007, Ms BA was given permission to remain in the State. She became an Irish citizen in August 2013.
43. On the 24th June 2008, Mr ABM was notified that a deportation order had issued in respect of him and that he was obliged to leave the State. He was directed to present himself to the Garda National Immigration Bureau on the 15th July, 2008 but failed to do so. Thereafter he was classed as evading deportation up to July 2015. In December 2013, the Minister adopted a policy document regarding family reunification for non-EEA nationals.
44.
On the 9th January, 2014, Mr ABM
applied to revoke the 2008 deportation order under section 3(11
) of the 1999
Act. He was continuing to evade
GNIB at this time; this was the first contact made by Mr ABM since his failure
to present himself in July 2008.
45. On the 9th February, 2015, the Respondents underwent a civil marriage ceremony; as with the Gorry couple the status of this marriage has not been doubted.
46.
On the 13th July, 2015, a
submission was prepared on behalf of the Minister recommending refusal of the
section 3(11
) application. On the same date, he undertook not to deport Mr ABM
until the consideration of this application had taken place. On the 17th
July, 2015, he was informed that Ms BA was pregnant (at that point she was four
months pregnant). The formal decision refusing the application was made on the
20th July, 2015. Mr ABM was informed of that decision by
notification of the same date. He was also told that the undertaking given the
previous week had expired and was requested to attend before the GNIB on the 28th
July, 2015, to make arrangements for his deportation.
47.
Again, it is worth setting out in brief the
salient parts of the Minister’s decision in respect of Mr ABM, which are set
out in greater detail at paras. 36-40 of the judgment of Finlay Geoghegan J in Gorry.
As in the Gorry decision, the Minister’s decision in this case similarly
considers first the relevant facts; second, the position under Article
8 ECHR;
and only then
Article
41 of the Constitution. Reference is made to the fact
that the parties knew of Mr ABM’s precarious immigration status at the time of
their civil marriage in 2015. The principle, derived from ECHR case law, that
deportation in such circumstances will violate
Article
8 only in “the most
exceptional circumstances” is also cited. The decision refers to the
insurmountable obstacles test and provides that the question is whether, where
an obstacle exists, realistically or reasonably, it is an obstacle which is
capable of being surmounted.
48. The decision notes that the applicants do not have children together but that both have children from previous marriages who continue to reside in Nigeria. Although there is no express conclusion on the absence of insurmountable obstacles or the existence of exceptional circumstances, it would seem to inevitably follow that, given the Minister’s decision, neither test is satisfied.
49.
As to the argument based on the
Constitution, the Minister’s decision records that BA is an Irish citizen, that
the applicants married on the 9th February, 2015, and that
consequently it is accepted that the couple constitute a family within the
meaning of Article
41. It then continues:
“With regard to the rights of a non-national married to an Irish
national or a person entitled to reside in the State, it is accepted that
family rights under Article
41 of the Constitution arise. However, these rights
are not absolute and may be restricted. As found by the courts, there appears
to be no authority which supports the proposition that an Irish citizen, or a
person entitled to reside in the State, may have a right, under
Article
41 of
the Constitution, to reside with his or her spouse in this jurisdiction.
Reference is made to the consideration of the position of the couple, as well
as the rights of the State under
Article
8 in the consideration above and the
conclusions reached therein.”
The conclusion is that there existed substantial reasons associated with the common good, in particular the control of immigration, which required the deportation order in respect of ABM to be affirmed.
50. The Respondents were granted leave to bring judicial review proceedings on the 27th July, 2015. They sought an injunction seeking to restrain the deportation of Mr ABM pending the determination of the proceedings; however, this application was refused by Stewart J on the 4th August, 2015. Mr ABM was deported on the 22nd September, 2015. Ms BA gave birth to a child in December 2015.
High Court Judgment - ABM
51.
The judgment of the High Court was delivered
by Humphreys J on the 29th July, 2016 (ABM & anor v. Minister
for Justice and Equality [2016] IEHC 489). Mr ABM and Ms BA argued that the
Minister’s proportionality examination was flawed due to a failure to recognise
the nature and strength of their rights under Article
41 of the Constitution.
They understandably placed particular reliance on the decision in Gorry,
given in 2014.
52. Humphreys J noted that the point made in Gorry was “substantially qualified” in the later judgment of Mac Eochaidh J in S.A. v. Minister for Justice and Equality (No. 2) [2015] IEHC 226, where he stated at para. 13 that it is not incumbent on the Minister to commence an assessment of the rights of recently married spouses with a recognition of a prima facie right to live together in the State. The learned judge observed that “[i]t has been a constant refrain of the European Court of Human Rights that there is no automatic obligation on a State to respect the choice of place of residence decided upon by a particular family”, referring to the relevant case law in that regard. He then stated that:
“There is no logical reason why there should be a significantly
different position under Article
41 of the Constitution. It is true, of course,
that
Article
41 uses somewhat more emphatic language than art. 8 of the ECHR,
but neither provision exists in a vacuum. Even
Article
41 cannot be interpreted
in such a way as to fail to cohere with the overriding objective of an ordered
society.” (para. 26).
53. In his view, “It is one thing to say that a married couple, or partners in a domestic relationship, have a legitimate interest in living together, which should be given due regard by the State. It is quite another to assert that they have a ' prima facie right' in that regard.” (para. 27). He regarded voluntary assumption of risk as the key element. Parties who choose to get married must be taken to do so in the knowledge of whatever factual and/or legal obstacles may exist to their living together. Such couples bear the primary responsibility for the consequences which follow where the relationship they have entered into is built on these shaky foundations. He noted that it would be destructive of any ordered immigration control system if a person could convert his or her prima facie illegal status into a prima facie legal one merely by getting married to a person who has an entitlement to be in the State. On the constitutional issue, therefore, he concluded as follows:
“The notion of a ‘prima facie right’ to reside in Ireland
deriving from the very status of marriage itself, as referred to in Gorry,
needs, I think, slight rephrasing. In my view, there is no such prima facie
right. Presence in the State which is unlawful cannot be converted into the
lawful or prima facie lawful merely by a ceremony of marriage. A married
couple, one of whom is a citizen, should receive prima facie
acknowledgement and consideration of their status under Article
41 of the
Constitution, but that does not mean either that a deportation decision has to
be phrased in any particular way (still less to use terms such as ‘prima
facie’), or that such acknowledgment amounts to a right or even a prima
facie right in any particular case or precludes the deportation of any
particular applicant. Cases fall on a spectrum. For example, a sham marriage to
an Irish national conducted for immigration purposes confers no rights on an
applicant to resist deportation, whether pursuant to
Article
41 or otherwise. A
last-ditch marriage by an illegal immigrant may confer no rights to resist
deportation. A non-national who marries an Irish citizen prior to his or her
arrival in the State is arguably in a marginally stronger position, and a
settled migrant stronger still.” (para. 35)
He added that even if some sort of prima facie right can be asserted, Mac Eochaidh J acknowledged in Gorry that such can in any event be outweighed by countervailing considerations, such as the interests of immigration control.
54. The learned judge continued as follows:
“37. The applicants rely on the discussion in Gorry which
is critical of a passage in the Minister’s analysis which is quoted at para. 43
of that decision, and which includes the phrase that ‘there appears to be no
authority which supports the proposition that an Irish citizen or a person
entitled to reside in the State may have a right under Article
41 of the
Constitution to reside with his or her spouse in this jurisdiction’.
However, that quotation is part of a longer passage, the earlier part of which
is quoted in a separate part of the judgment in Gorry at para. 37. This
includes the phrase that ‘it is accepted that family rights under
Article
41
of the Constitution arise. However, these rights are not absolute and may be
restricted’.
38. Mac Eochaidh J. took the view that the sentence quoted in
isolation at para. 43 was in error. As set out above, I do not consider that it
was in error, but in any event, if one reads that in the context of the earlier
sentence, it is clear that the Minister’s analysis is sensitive to the
possibility that Article
41 rights exist, although they are not absolute. Where
is the error in that reasoning? It is very hard to discern.”
55.
Humphreys J disagreed with the approach of
Hogan J in X.A. (a minor) v. Minister for Justice, Equality & Law Reform
[2011] IEHC, where the learned judge stated that a decision which compels a
couple to live more or less permanently apart “is one which, quite
obviously, requires compelling justification”; Humphreys J stated that he
does not accept the proposition that ‘compelling justification’ is required in
such circumstances. He stated that the extent of any rights under Article
41 will
depend on the circumstances of the marriage. He referred to a spectrum, with a
marriage of convenience at one end and a married settled migrant at the other.
In his view, the Minister could not possibly require “compelling
justifications” to separate one party to a marriage of convenience from the
other party. He further stated that the same would apply where a marriage is
entered into at a time when the immigration status of one of the parties is
uncertain: a rational immigration system could not function if compelling
justification was required to remove such a person. On the other hand, such
level of justification may well be required where a settled migrant enters into
a marriage.
56.
The learned judge then came back to what he
considered to be the key issue of voluntary assumption of risk. It is clear
that, in his view, Mr ABM and Ms AB are not persons “who have been forcibly
separated by State action”: rather, they voluntarily put themselves in that
position and it is their conduct which gives rise to the situation where there
may have to be a parting of ways. He referred to the judgment of Noonan J in Khan
v. Minister for Justice and Equality [2014] IEHC 533 to the effect that even
where Article
41 and
Article
8 rights arise, the Minister is still entitled to
come to the view that the countervailing interest of the State in maintaining
the integrity of the immigration system ought to prevail over those rights.
57.
On this point, he concluded that it is
ultimately a matter for the Minister to balance the interests involved. This
was done, and Humphreys J took the view that Article
41 of the Constitution was
clearly considered by the Minister and that the balancing exercise was not
unlawful or disproportionate. In the absence of some specific and clearly
identified unlawfulness being established, he was not prepared to accept the
premise that it is sufficient for a court to determine that the Minister’s
balancing exercise failed to “pay sufficient attention to or consider
appropriately
Article
41” (per Eager J in Ford at para. 60).
58. Humphreys J also addressed the applicants’ argument (again based on Gorry) that the Minister had erred in referring to the lack of “insurmountable obstacles to the applicants’ relationship continuing if the deportation was effected.” The learned judge agreed with Mac Eochaidh J that there is no “insurmountable obstacles” test, in the sense of a determinative bar that the applicant must meet or fail to meet. He regarded the question of insurmountable obstacles as one of a basket of questions to be asked in the overall circumstances. In his view, a decision is not invalid simply for referring to “insurmountable obstacles”. He recalled that the High Court in Gorry had stated that this test is “derivative language which can only be understood in the context of all of the cases from which it is derived”; given how extensively the phrase is discussed in the case law, the learned judge was not willing to assume that the Minister was not aware of its meaning in connection with such case law - that meaning being that it is a legitimate question but not an all-or-nothing test.
59. Humphreys J also rejected a further argument which is of no continuing relevance on this appeal. Accordingly, the learned judge dismissed the application and refused the reliefs sought. He adjourned the proceedings to permit the applicants to make an application for leave to appeal. The learned judge subsequently certified the following points of law of exceptional public importance:
(i)
Does an Irish citizen possess the right pursuant
to Article
41 of the Constitution to have his/her non-national spouse reside in
the State?
(ii)
If the above exists, whether such a right of
residence must be the starting point for any consideration by the respondent
Minister pursuant to s. 3(11
) of the Immigration Act 1999 (as amended).
(iii)
Whether the respondent is entitled to consider
the insurmountable obstacles criterion contained in the case law of the
European Court of Human Rights when considering representations made in respect
of the spouse of an Irish citizen pursuant to s. 3(11
) of the Immigration Act
1999 (as amended).
Judgments of the Court of Appeal
60. The Minister appealed the judgments in Gorry and Ford to the Court of Appeal; Mr ABM and Ms AB appealed the judgment of Humphreys J on the certified points of law set out above. The three appeals were heard at the same time. The Court, which in each case comprised Finlay Geoghegan J, Irvine J and Hogan J, delivered judgment in all three cases on the 27th October, 2017 (see A.B.M. and B.A. v. Minister for Justice and Equality [2017] IECA 280, Ford & Anor v. Minister for Justice and Equality [2017] IECA 281 and I. Gorry and Joseph Gorry v. Minister for Justice and Equality [2017] IECA 282). The Court’s treatment of the legal issues arising is contained in the Gorry decision, with very short supplemental judgments being delivered in the other two matters. Accordingly, the focus here will be on what was said in Gorry.
61. The main judgment was delivered by Finlay Geoghegan J. The learned judge referred to the fact that the appeals in Gorry and Ford were moot but that the Court had determined that it should hear and decide the Gorry appeal in light of the importance of the questions raised.
62.
The learned judge noted at para. 46 that the
constitutional issues raised in Gorry and ABM relate to the
situation where the Minister is required to make an immigration order in
relation to a non-national who is a lawful spouse of an Irish citizen, as was
undoubtedly the case in respect of the applicants in each case. They therefore
constituted a family within the meaning of Article
41 of the Constitution, as
acknowledged by the Minister in each of the decisions challenged.
63.
Finlay Geoghegan J framed the issues in the
case as concerning the nature of the rights which the Irish citizen spouse and
the family (including the non-national spouse) possess under the Constitution
and how these rights must be approached by the Minister in considering whether
or not the non-national spouse may be permitted to remain or reside in the
State. Thus the appeal concerned the obligations imposed on the State in such
circumstances. A related issue was whether the Minister’s obligations when
considering constitutional rights in such an application differ from his
obligations when considering the State’s responsibilities under Article
8
ECHR. The second discrete issue identified by the Court was the appropriate
test to be applied in an
Article
8 ECHR situation; it being noted in particular
that the application of the “insurmountable obstacles” test had given rise to
disagreement between the parties.
64.
The learned judge first made some
incontrovertible points concerning the differences in the bases for the
Minister’s obligations having regard to Article
41 of the Constitution and
Article
8 ECHR; such matters are discussed below (see para. 124 et seq.,
infra). Having done so, she stated as follows at para. 56:
“It
appears to follow that where a married couple (a family within the meaning of
Article
41 of the Constitution), one of whom is an Irish citizen, make an
application to the Minister, in reliance in part on constitutional rights, to
permit the non-national spouse reside in the State, that the Minister should
first consider the application in the context of the constitutional rights of
the applicants and obligations imposed on the State by the relevant
articles
of
the Constitution. Following this, should it prove necessary to do so, the
Minister may then also consider the application in the context of the
Minister's obligation pursuant to s. 3 of the 2003 Act to decide the matter in
a manner consistent with the State's obligations under the ECHR.”
65.
She observed that the Minister, in his
assessments in both Gorry and ABM, appears to have assumed that
the rights and obligations arising under Article
41 of the Constitution and
Article
8 ECHR (pursuant to section 3 of the 2003 Act) are similar or even identical,
a point endorsed by Humphreys J in ABM. Finlay Geoghegan J disagreed
with this analysis - in her view, the obligations on the Minister differ
materially as between the two provisions.
66.
In relation to the constitutional issue in
the case, the learned judge identified two essential questions: (i) what are
the constitutional rights of the citizen and the family that the Minister is
obliged to take into account in his decision, and (ii) what relevant
obligations are imposed thereby on the State? She observed that the difference
in approach between the trial judges in Gorry and ABM essentially
came down to a difference in terminology, with Mac Eochaidh J referring to “a prima
facie right” and Humphreys J preferring to say that the couple should
receive “prima facie acknowledgment and consideration of their status
under Article
41”. Both judges, correctly, in her view, identified that the
relevant rights are not absolute and that all cases will fall on a spectrum.
67.
Finlay Geoghegan J described the
identification of the constitutional rights at play as a complex matter, and
rightly stated that the starting point must be the relevant articles
of the
Constitution. She referred to the right of the Irish citizen to live in Ireland
(
Articles
2, 9 and possibly 40.3.
1
°) and the protection of marital rights,
including the right of cohabitation, in
Article
41.
1
(and possibly also
40.3.
1
°). The learned judge recognised that neither such right is absolute. Referring
to the decisions of this Court in North Western Health Board v. H.W. [2001] 3 IR 622 and Re
Article
26 and the Matrimonial Homes Bill 1993 [1994]
1
I.R. 305 (both discussed below; see paras. 161-162, infra), she stated
at para. 72 that:
“The decision of the family at issue in this appeal is a decision that the family should live in Ireland. That is a decision which a married couple have a right to take and which is within the authority of their family. Their ability to implement the decision may, however, not fully lie within their control.”
68. The reason for this, of course, is that Ms Gorry, as a non-national, has no right to be in Ireland unless she obtains permission from the Minister (see section 4 of the Immigration Act 2004) or some other international legal obligation applies, which was not the case here. Accordingly, Finlay Geoghegan J stated as follows:
“74. Having regard to the inherent power of the State, as a sovereign state, to control the entry of non-nationals into the State, it does not appear to me correct, in the absence of any express right given in the Constitution to a citizen to have a non-national spouse reside with him or her in the State without the need to obtain the relevant visa or other permission required by statute, to state that the Irish citizen has a constitutional right to have the non-national spouse reside with him or her in Ireland.
75. Even if one considers the right of the family to be
protected in its composition pursuant to Article
41, or to put it another way,
the married couple’s right to cohabitate, or the citizen’s individual personal
right to cohabit with his spouse, and take into account the citizen’s right to
live in Ireland, it still does not appear to me to give him an automatic right
pursuant to the Constitution to cohabit with his non-national spouse in
Ireland. Such an individual right would appear to be contrary to the inherent
power of the State to control immigration subject to international obligations.
This is so even if one considers that any such constitutional right is not an
absolute right and may be limited.
76. Neither does it appear to me correct or helpful to state
that the couple have a prima facie constitutional right to live in
Ireland pursuant to Article
41. I understand the trial judge in Gorry to
have been using it in the sense of a constitutional right which is not absolute
or which is subject to regulation, but nevertheless an identified
constitutional right.”
69. In her view, the correct analysis of the rights which a couple such as the Gorrys have under the Constitution, and the obligations thereby imposed on the Minister in considering their application, begins with the identification of the constitutional rights involved. These Finlay Geoghegan J identified as follows:
“(i) the guarantee given by the State in Article
41.
1
.2 to protect
the family in its constitution and authority;
(ii) a recognition that Mr. and Mrs. Gorry are a family, a
fundamental unit group of our society possessing inalienable and
imprescriptible rights which rights include a right to cohabit which is also an
individual right of the citizen spouse which the State must, as far as
practicable, defend and vindicate (Article
41.
1
and
Article
40.3.
1
)
(iii) a recognition that the decision that the family should live in
Ireland is a decision which they have a right to take and which the State has
guaranteed in Article
41.
1
to protect; and
(iv) a recognition of the right of the Irish citizen to live at all
times in Ireland as part of what Article
2 refers to as his ‘birth right … to
be part of the Irish Nation’ and the absence of any right of the State (absent
international obligations which do not apply) to limit that right.”
70. The Constitution places corresponding obligations on the Minister to take the decision with due regard to each of the above constitutional rights; it does not, however, oblige the Minister to give effect to their decision to live in Ireland (para. 79). The Minister is also entitled to take into account relevant considerations in accordance with the State’s interest in the common good, including the inherent power to control the entry of non-nationals to the State.
71. Finlay Geoghegan J referred to the obiter remarks of Fennelly J in Cirpaci (see para. 151, infra) to the effect that there may, in certain factual circumstances, be a constitutional right of the citizen to have their non-national spouse reside with them in the State. While agreeing that in some circumstances the only reasonable and proportionate decision open to the Minister may be to permit the non-national spouse to reside in Ireland, she preferred to consider this as an obligation imposed on the State by the Constitution rather than as a personal right of the citizen, as such.
72. She continued that the Minister, in taking any such decision, must consider and weigh the constitutional rights of the applicants and the relevant interests of the State in a fair and just manner to achieve a reasonable and proportionate decision on the facts. At a practical level, she envisaged a two-stage approach:
-
The first stage involves the identification of
the relevant constitutional rights, which in her view are those quoted at para.
69, supra. These rights do not depend on other factual issues (such as
the circumstances or length of the marriage, or the immigration record of the
non-national) - once the couple are a family within the meaning of Article
41,
they are entitled to all of the rights identified;
- The second stage is the consideration and assessment by the Minister in accordance with the obligations imposed on the State by those rights, and his entitlement to take into account relevant State interests in the common good, such as immigration control. It is in this second stage, in the learned judge’s view, that facts such as the circumstances/length of the marriage and immigration history of the spouse may fall to be taken into account as part of the balancing of interests required to reach a reasonable and proportionate decision on the facts.
73.
Finlay Geoghegan J therefore concluded that
it is not correct to say, as the trial judge did in Gorry, that a
married couple comprising an Irish citizen and a non-national have a prima
facie right to live in Ireland pursuant to Article
41 of the Constitution. Rather,
in her view, “they have rights to have the decision taken by the Minister in
accordance with the rights which the Irish citizen has, and they as a family
have, pursuant to the Constitution and the obligations imposed on the State by
the Constitution and the rights inherent in the State in relation to the
control of entry to the State by non-nationals” (para. 86). She was not
therefore prepared to uphold the reasoning of Mac Eochaidh J.
74.
This, however, did not mean Finlay Geoghegan
J was of the view that the consideration given by the Minister to the
application in relation to the constitutional rights of the applicants was in
accordance with law. She noted that the Minister had applied the same approach
to the State’s obligations under Article
41 as he had to the obligations
imposed by section 3 of the 2003 Act (having regard to
Article
8 ECHR). While
Humphreys J had upheld this approach, Finlay Geoghegan J did not consider it to
be correct. The learned judge had identified the starting point for the
constitutional analysis as being the recognition by the Minister of the
relevant rights of the applicants; that, however, is a different starting
point, imposing different obligations, than the statutory obligation imposed by
section 3 of the 2003 Act. Having regard to the text of
Article
41 of the
Constitution and
Article
8 ECHR, she considered that the former affords more
protection to the rights of the family based on marriage than does the latter. The
Minister takes issues with this textual analysis, and this forms a major issue
on this appeal (see paras. 196-204, infra).
75.
For Finlay Geoghegan J, the practical effect
of this is that the starting point of the assessment concerning Article
41
rights must be in accordance with the principles set out above; in particular, the
Minister’s analysis must start with the recognition of the constitutional
rights of the applicants and the obligations imposed thereby on the State,
including the obligation to protect the right of the couple to decide that
their family live in Ireland. By contrast, the starting point under
Article
8
is that there is no general obligation on the State to respect the choice of
residence of married couples. Moreover, under the jurisprudence of the European
Court of Human Rights, if the marriage was entered while the immigration status
of one of the parties was precarious then it is only in “exceptional circumstances”
that removal of the non-national will violate
Article
8. No such requirement is
imported into the consideration of the constitutional family rights concerned. The
learned judge concluded that the consideration given by the Minister to the
constitutional rights of the applicants in the Gorry case was not in
accordance with law.
76.
The learned judge went on to address the
“insurmountable obstacles” test. She stressed that this only arises the Article
8 ECHR rights, i.e. it arises only where the Minister has first decided to refuse
permission having regard to the constitutionally protected rights. She agreed
with the Minister that Mac Eochaidh J had erred in concluding that that test is
no longer to be applied, given that it is the test still applied by the
European Court of Human Rights. In her view, however, the difference between
the ECtHR test and that applied by Mac Eochaidh J (i.e. whether it would be
reasonable to expect the Irish spouse to join their deported partner in their
country of origin) is one of nomenclature rather than substance. In view of her
decision on the constitutional issue and the mootness of the case, she did not
consider it necessary to assess whether the relevant principles had been
properly applied in the Gorry case. She did note, however, that the
approach of the Minister in the ABM case was slightly different, and
closer to the approach articulated by Clark J in the Alli case. In her view,
the application of the insurmountable obstacles test requires that the evidence
be assessed in relation to the practicality and feasibility of family moving to
the country of origin of the non-national, as well as the proportionality of
the decision to remove the non-national.
77. A helpful summary of the conclusions of Finlay Geoghegan J is set out at para. 105 of her judgment. She held that although she would not uphold the trial judge’s reasoning in Gorry, she would uphold the order of certiorari in light of the legally incorrect approach taken by the Minister to the assessment, considerations and determination of the constitutional aspect of the Gorrys’ application. Given that the proceedings are moot, she concluded that the matter should not be remitted to the Minister for a further decision.
78.
A concurring judgment was given by Hogan J,
who agreed with that given by Finlay Geoghegan J. He stated that, on reading
the file, it was difficult to avoid the impression that the Minister had taken
the view that Article
8 ECHR is directly applicable in our domestic law and
indeed that it is the primary source of protection of family rights, with
Article
41 playing a subsidiary role. He observed that the two provisions were
treated as having the same legal status and content, with there being no
attempt by the Minister to subject the constitutional claim to any independent,
detailed analysis. He considered this to be an inversion of the appropriate
legal norms.
79.
The learned judge then re-stated “some key
legal propositions” concerning the status of the ECHR in Irish law and its
relationship with constitutional remedies. Referring to this Court’s decision
in Carmody v. Minister for Justice and Equality [2010] 1
I.R. 635, he
stated that it is implicit in that judgment that where a litigant makes claims
based on the Constitution and on the Convention, the former should be
considered first and the latter should be considered only if the former claim
fails. In his view, the Minister’s approach effectively treated
Article
8 ECHR
as directly applicable and enforceable under Irish law, an approach which is
“fundamentally wrong”.
80.
In terms of what he saw as the Minister
equating Article
8 ECHR and
Article
41 of the Constitution in terms of their
status and content, Hogan J stated that while there is “a good deal of
overlap”, there are nonetheless clear differences. Though not relevant for this
appeal, the scope of the provisions is different, in that the ECHR provision
protects all forms of family life whereas
Article
41 extends only to the family
based on marriage. Hogan J noted that even as regards the marital family, there
are clear differences of approach. As in Finlay Geoghegan J’s analysis, Hogan J
referred to the text of the two provisions, noting that the Constitution uses
more emphatic terms than does
Article
8 of the Convention. In his view, while
it may be that not every word of
Article
41 was intended to be taken absolutely
literally, it was clear that the drafters intended to secure the maximum possible
degree of protection for family rights, and that they could hardly have used
stronger or more emphatic language in doing so.
81.
The learned judge referred to cohabitation
and joint decision-making as fundamental features of the family as a “moral
institution”, as referred to in Article
41.
1
. In his view, spousal autonomy is
a “core constitutional value” and this is embraced by
Article
41.
1
.2 when it
speaks of protecting the family “in its constitution and authority”, terms
which find no counterpart in
Article
8 ECHR. Referring to the case law of this
Court, he observed that the principle of spousal autonomy includes the right of
a couple to make joint decisions about the ownership of a family home and
family planning; in his view, it must also apply to other decisions bearing on
the composition and autonomy of the couple, such as where they will live.
82.
However, while the State is obliged to
protect family autonomy, Article
41.
1
.2° itself
envisages that this will be subject to social order and ensuring the welfare of
the State, which includes considerations such as the prevention of crime,
manipulation of the immigration system and the integrity of the social security
and health systems. Hogan J was thus satisfied that it is incorrect to say that
the couple may insist as a matter of constitutional entitlement that their
choice of residence must be respected, but equally incorrect to say - as the
Minister did in this case - that their choice need not be respected unless
there would be “insurmountable obstacles” to the Irish citizen moving to the
home country of the third country national. The learned judge continued:
“30. What is required here is something of a via media
between these potentially competing positions. Unlike the position under
Article
8 ECHR, the starting point [in the constitutional analysis] is that the
couple's choice of country of residence must be considered and given
considerable weight by the Minister, not least given that in this context at
least the right of the Irish citizen to reside in Ireland is for all practical
purposes an absolute one. The Minister must then take account of and balance
other competing State interests - ranging from the suppression of crime,
maintaining the integrity of the asylum system, guarding against unfair
competition in the labour market from third country nationals and protecting
the social security system. The fact that the couple married when the immigration
status of the non-national was known to be precarious is yet another factor
which can be weighed in the balance, although in itself it is not necessarily
always a dispositive feature. This balancing process must furthermore be
proportionate and must respect the constitutional rights of the parties in the Meadows
sense of this term (Meadows v. Minister for Justice, Equality and Law Reform
[2010] 2 I.R. 510).”
83.
He concluded by agreeing that the Minister
had erred in assessing the Gorrys’ constitutional rights, in assuming that (i)
Article
8 ECHR is directly effective and the primary source of rights
protection; (ii) that
Article
41 of the Constitution and
Article
8 ECHR are
co-extensive for these purposes; and (iii) that
Article
41 goes no further than
Article
8 ECHR in saying that the State is not obliged to respect a married
couple’s choice of residence unless the “insurmountable obstacles” test is satisfied.
84. On the same date, the Court of Appeal also delivered its short, supplementary judgments in ABM ([2017] IECA 280) and Ford ([2017] IECA 281). Both were delivered by Finlay Geoghegan J. In allowing the applicants’ appeal in the former case, the learned judge stated as follows:
“14. …[T]he rights which an Irish citizen such as B.A. and a family comprising a lawfully married couple such as A.B.M. and B.A. have pursuant to the Constitution and the obligations imposed on the Minister by the Constitution in considering an application such as at issue in this appeal are considerably more extensive than a mere “acknowledgement and consideration of their status under Art. 41 of the Constitution” as determined by the trial judge herein.
15. Furthermore for the reasons set out in the judgments in Gorry,
the trial judge herein was in error in his conclusion that the rights of the
applicants or the obligations imposed on the State pursuant to the Constitution
and those imposed on the State pursuant to s. 3 of the European Court of Human
Rights Act 2003 … having regard to Article
8 ECHR are not significantly
different.”
85. Given that the assessment given by the Minister to revoking the deportation order in ABM was not in accordance with law having regard to the constitutional rights of the applicants, Finlay Geoghegan J considered that the applicants were entitled to an order of certiorari. However, she did not consider that the application should be remitted to the Minister for a fresh decision given that events had since moved on: the proper course would be for a fresh application to be made to the Minister for revocation of the deportation order which will fall to be considered in accordance with law and on all current facts relating to the family comprised by the applicants and their child who was born after the impugned decision of the Minister.
86.
In Ford, the Court of Appeal upheld
the order of the High Court that the decision of the Minister be quashed, for
that decision expressly stated that the same principles apply in relation to a
consideration of rights pursuant to Article
41 of the Constitution as do in
relation to
Article
8 ECHR. However, the Ford case was by this stage
moot (the applicant having since submitted further applications to the
Minister) and thus the Court of Appeal vacated that part of the order of the
High Court remitting the original application for further consideration by the
Minister.
Issues
Determination granting leave
87. The Minister sought leave to appeal to this Court from the judgments of the Court of Appeal, stating that they raise matters of general public importance with the potential to affect a very large number of Irish citizens. The Respondents opposed the grant of leave, arguing that the judgment of the Court of Appeal is clear and that no issue arises therefrom which meets the threshold for leave to appeal. Moreover, it was contended that leave should be refused on the basis of mootness: in the Gorry case, because the Gorrys have since separated and Mr Gorry is no longer seeking to have Ms Gorry live with him in Ireland, and in the ABM case because that family’s circumstances have changed substantially in light of ABM’s deportation and the birth of their Irish citizen child, such that a new application to revoke is now appropriate rather than a remittal to reconsider the first application.
88.
By determinations dated the 11
th
April, 2018, this Court granted leave to the Minister in each of the four cases
(see Gorry v. Minister for Justice and Equality [2018] IESCDET 56, A.B.M.
and B.A. v. Minister for Justice and Equality [2018] IESCDET 54, Ford
& anor v. Minister for Justice and Equality [2018] IESCDET 55 and A
H and K O’L v. Minister for Justice and Equality [2018] IESCDET 57). It
observed that the proper approach to be taken by the Minister on an application
for revocation of a deportation order or for a visa to enter the country in
respect of a non-citizen married to an Irish citizen resulted in inconsistent High
Court judgments, with the view taken by the Court of Appeal itself being
significantly different again. The Court was therefore satisfied that an issue
of public importance arises which requires clarification.
89. Given that the overarching legal principles in each of the cases were essentially identical, the Court proposed to list the four of them together for case management. During that process it was decided to list the Gorry and ABM appeals together for hearing, with the outcome of the remaining cases to be determined by this judgment.
Issues Papers
90. In his Issues Paper received by the Supreme Court Office on the 16th October, 2018, the Minister states that the following issues arise in these cases:
i. Is there a positive obligation imposed on the Minister to promote or facilitate a decision by a married couple to reside in the State where a non-EEA national is married to an Irish citizen?
ii.
Whether the Minister is entitled to have regard
to all factual circumstances including any rights asserted to exist under
Article
41 of the Constitution and
Article
8 of the European Convention on
Human Rights (as implemented by the European Convention on Human Rights Act,
2003) together in a holistic manner - when considering such residence
applications - and accordingly whether the formal, bifurcated approach
identified by the Court of Appeal in its judgment to the assessment of such
applications by the Minister is correct as a matter of law.
91. The Respondents in both cases, in their joint Issues Paper, frame the points slightly differently although, as will be apparent, in substance there is a large degree of overlap between the parties’ respective positions. In any event, the Respondents say that the following issues arise:
i.
the nature of the analysis of Article
41 family
rights in the revocation decisions in these cases;
ii. the nature of the rights which the Irish citizen spouse and the family based upon marriage (including a third country national spouse) possess under the Constitution;
iii. how those rights must be approached by the Minister in considering whether or not the third country national spouse may be permitted to remain or reside in the State, or come to the State to join their Irish citizen spouse.
iv.
whether the Minister’s obligations when
considering constitutional rights in such an application differ from those
which apply when considering the application with regard to the State’s
obligations pursuant to Article
8 ECHR.
v.
the overlap and differences between Article
41
and
Article
8 ECHR family’ rights and the assessment of the proportionality of
decisions that may lead to Irish citizen having to leave the State to enjoy
marital family life or decisions that may lead to the marital family being unable
to live together as a family unit because it is unreasonable to expect the
Irish citizen spouse to move to the country of citizenship of the third country
national spouse.
Submissions
92. The Court is grateful for the comprehensive written submissions furnished by the parties in both Gorry and in ABM, as well as for their helpful oral submissions. For understandable reasons, there is very considerable overlap between the submissions in both cases; indeed, in most respects they are identical. For this reason, unless the contrary is noted, it can be taken that the summary of the parties’ submissions presented below is equally applicable to both cases.
Submissions of the Appellant
93. The Minister stresses at the outset of his written submissions that there is much in the reasoning of the Court of Appeal with which he does not take issue. His concerns relate to a number of discrete aspects of the Court’s reasoning. In particular, he is of the view that the Court of Appeal departed from the jurisprudence of this Court and that its decision is unduly prescriptive and likely to give rise to practical difficulties in its implementation. Thus it is submitted that clarification is required as this issue will affect many other immigration cases and will arise across a range of different factual contexts.
94. The Appellant considers that the core question on this appeal concerns the approach he must adopt when considering an application by a non-national spouse to enter, remain or reside in the State. He submits that the holistic approach outlined by this Court in Oguekwe is the correct one. The Court of Appeal, by contrast, has adopted the very “micro specific” approach deprecated in Oguekwe.
95.
In addition to disagreeing with the Court of
Appeal’s reasoning in respect of the approach which the Minister should adopt
to such applications, the Minister also submits that the court below was in
error in its analysis of the rights of the applicants and, in particular,
Article
41 of the Constitution. This error, he said, fed into the Court’s
subsequent conclusions in respect of the approach to be adopted.
96.
He does not disagree with all that was said
by the Court of Appeal in this context, observing, for example, that that court
was quite right to find that there is no constitutional right of the citizen to
have their non-national spouse reside with them. What he objects to is the
Court’s construction of Article
41 as imposing obligations on the State to
respect and protect the right of the couple to decide that their family live in
Ireland. In this regard, he submits (i) that the positive duties which the
court identified as arising from
Article
41 are inconsistent with the text and
case law relating to that provision and (ii) that the court erred in attaching
undue legal significance to the use of terms in
Article
41 such as
“inalienable”, “imprescriptible”, “moral institution” and “antecedent and
superior to all positive law”.
97.
The Minister questions whether the Court of
Appeal was correct in finding that the judgment in Murray v. Ireland [1991]
I.L.R.M. 465 stands as precedent for the identification of a right of
co-habitation of married couples within Article
41. More fundamentally, he
submits that the court’s approach goes beyond the text and authorities on the
nature of that provision. In his submission, this provision does not impose a
freestanding obligation to protect the family generally or to promote their
interests; rather, the Constitution’s concern is to preserve the
decision-making primacy of the family over internal matters.
98.
This, he submits, is clear from the case
law, and in this regard he relies on L v. L [1992] 2 I.R. 77, North
Western Health Board v. HW [2001] 3 IR 622, In re Article
26 and the
Matrimonial Home Bill 1993 [1994]
1
I.R. 305, A.O. and D.L. v. Minister for
Justice [2003]
1
I.R.
1
, P.H. v. John Murphy & Sons [1987] I.R.
621 and FP & AL v. Minister for Justice [2002]
1
I.R. 164. It is
submitted that these cases make clear that the objective of the provision is to
safeguard the authority of the family over certain internal issues: to make it
clear that the family, rather than the State, has primacy in these areas. The
key issue in these cases is that they involve an external party acting as the
primary decision-maker for the family, and this is what the provision protects
against. They are not cases where a family takes a decision, the implementation
of which encounters obstacles: they are cases where the family was denied the
entitlement to take a decision in the first place.
99.
Thus the Minister submits that the rights
contained in Article
41 are essentially negative in character. They preclude
the State from asserting primary authority over the family’s decision-making
entitlements, but do not impose any duty on the State to promote or facilitate
the decisions which the family has taken.
100.
It is submitted by the Appellant that one of
the key practical problems with the judgment of the Court of Appeal is that it
is somewhat ambiguous as to both the nature and implications of the applicants’
Article
41 rights. It contains references to the need to “protect” the right of
the family to decide to live in Ireland, but these are followed by statements
that the Minister is not obliged to give effect to this right. Insofar as these
references can be construed as imposing some additional form of obligation on
the Minister to promote or facilitate a decision to live in Ireland, it is
submitted that the Court was in error. At most,
Article
41 protects the fact
of the family’s entitlement to make a decision, but there is no basis for
interpreting it to require the Minister to attach positive weight to the content
of that decision.
101.
The Minister submits that there is a
practical difficulty in the application of the Court of Appeal’s decision. He
says that there is ambiguity over the court’s precise attitude to the scope of
the Article
41 entitlements. If it requires the Minister to give presumptive
priority to the family’s decision, or to facilitate it, this is inconsistent
with
Article
41. On the other hand, if he is required to respect the fact of
the decision but not its content, there is a question as to how much practical
significance or influence this will have. It is submitted that the Court of
Appeal’s approach is liable to produce confusion rather than clarity. The
Minister further questions whether the limited scope of this
Article
41
entitlement supports the pre-eminence given to it in the approach of the Court
of Appeal.
102.
The Minister makes a number of points in
respect of the “two-stage approach” identified by Finlay Geoghegan J. It is
said that this approach impermissibly gives presumptive priority to the Article
41 entitlements of the family, thereby overextending that provision and giving
it undue prominence in the Minister’s decision. He also objects to the
bifurcation of the factual analysis of the marriage into two stages, with the
circumstances or length of the marriage only falling to be considered in the
second stage. It is not clear how this would work in practice, and it appears
to preclude the Minister from assessing the legality of the marriage (by
reference to the facts and evidence) at the first stage. It is further
submitted that there is no legal necessity or practical logic to bifurcating
the Minister’s evaluation of the marriage in this way.
103.
Finally, in this regard, the Appellant
submits that this approach is a clear departure from the prior decisions of
this Court in Cirpaci, Oguekwe and AA & EP v. Minister for
Justice, Equality and Law Reform [2005] 4 IR 564. Oguekwe provides
that all legal and factual considerations relevant to the rights of the parties
and the common good should be balanced without according pre-eminence or
priority to any particular factor. The Court of Appeal, on the other hand, has
elevated one factor above all others - thereby giving it a status which is not
justified by the text of the Constitution and is not supported by authority.
Therefore, because the Court of Appeal’s approach is inconsistent with Oguekwe,
and because neither the text of Article
41 nor the fact that a marriage has
formal legal recognition requires that fact alone to be elevated above all
others in the Minister’s analysis, it is submitted that the approach of the
court below ought not to be followed.
104.
The Minister also makes submissions in
relation to the conclusions of the Court of Appeal concerning the Minister’s
approach to Article
8 ECHR, namely, that he had erred in addressing the rights
thereunder prior to addressing constitutional rights. Hogan J relied, in this regard,
on the decision in McD v. L [2010] 2 IR 199. However, the Minister
distinguishes that case on the basis that there the High Court applied the
Convention directly and outside the interpretative framework provided by the
2003 Act: there was no provision at issue to trigger the application of the
Convention. Here, on the other hand, the Minister has a direct statutory
obligation under section 3 of the 2003 Act. The Minister also takes issue with
Hogan J’s reliance on Carmody v. Minister for Justice and Equality
[2010]
1
I.R. 635 as establishing that a constitutional claim should be
considered before a Convention claim. He submits that that decision considered
the differences in remedies available under the 2003 Act and the Constitution;
where, as here, the remedy which could be provided (a decision to accede to
their application) is the same pursuant to both provisions, the concerns
identified by this Court in Carmody do not arise.
105.
As noted above, the Appellant criticises the
Court of Appeal’s emphasis on the text of Article
41. It is said that the court
attached significant importance to terms that plainly are not intended to be
taken literally. More fundamentally, he says that the court below focussed on
the language used to describe the rights rather than on the content
of the rights protected therein. Returning to his submission that
Article
41
protects only the primacy of familial decision-making, he submits that this
makes a comparison of the relative status of the rights under each provision
more complex. While
Article
41 is expressed in more strident terms, it is more
limited in its scope than
Article
8 ECHR.
106. It is further submitted that the Court of Appeal’s insistence on a rigidly distinct approach to Constitution and Convention rights is a departure from previous authorities (Oguekwe; Gashi [2004] IEHC 394). That court’s approach requires as a matter of law that the provisions be considered separately and in sequence. This risks favouring abstract form over factual assessment. The factual considerations will be similar; it is said that there is no logical reason to always start with a constitutional analysis. Whether the Minister had paid adequate regard to the rights of an applicant is a question of substance rather than sequencing; provided the Minister has regard to both the constitutional and Convention rights of the applicants in a fair and proper manner that strikes a fair balance between the interests engaged (as he did in this cases), the decision is not an unlawful one by virtue only of the order in which it is explained.
107.
As regards the decisions at issue in these
proceedings, it is submitted that they are in full compliance with the approach
mandated in Oguekwe. There was fair and careful consideration of the
factual matrix in the context of both Article
41 and
Article
8 ECHR. This was
lawful and appropriate given the considerable overlap between the two.
Furthermore, while the decisions make greater reference to the jurisprudence of
the ECtHR, this is not unusual given its more extensive range of case law on
the topic. This does not mean, ipso facto, that the Convention was given
greater legal weight than the Constitution. In any event, it is submitted that
the Respondents have not identified any matters pertinent to
Article
41, but
not
Article
8 ECHR, which were not considered or were inadequately considered
by the Minister, nor how a different conclusion would have resulted had
Article
41 been the starting point. To require the Minister, as a matter of law, to set
out the same factual considerations in respect of both provisions, repeated
fully and verbatim the second time, would be highly formalistic. Finally, it is
submitted that even if the constitutional rights of the applicants are
weightier than their Convention rights, it is not meaningfully so in these
cases, where the context involves brief marriages against a backdrop of known
immigration difficulties.
108. In the event that this Court should hold against him on the matters of legal principle, the Minister submits that relief ought to be denied to the applicants in any event on discretionary grounds. The basis for this submission is the clear illegality and wrongdoing of the applicants in breaching the immigration rules of the State and evading deportation. Furthermore, as regards Mr ABM and Ms BA, it is submitted that they provided either false or misleading information to the Minister in their dealings with him. It is said that this plain illegality disentitles them to the remedies sought, given the absolute duty of good faith and honesty in dealing with the Irish immigration and protection authorities. The Minister relies, in this regard, on, inter alia, AGAO v. Minister for Justice [2007] 2 IR 492, C(R) & M(GG) [Zimbabwe] v. The Refugee Applications Commissioner [2010] IEHC 490 and G.O. & ors v. Minister for Justice, Equality and Law Reform [2008] IEHC 190.
Submissions of the Respondents
109.
The Respondents submit that the Minister’s
submissions are abstract in content and tone and shy away from examining the
actual decisions under challenge. They submit that this is significant in light
of the Minister’s express findings in those decisions that there is no authority
to the effect that a constitutional right to enjoy family life in Ireland may
exist, and the Minister’s subsequent finding equating the position of a
married Irish citizen with that of a non-citizen who is entitled to reside in
Ireland. It is said that it is unclear from the Minister’s submissions
precisely what his position is regarding the scope and effect of Article
41.
110.
The Respondents accept that the right to
enjoy a marital family in Ireland is not absolute and that the circumstances of
the marriage are relevant. They stress that they do not contend for, nor did
the High Court or Court of Appeal find, any absolute right for a third country
national spouse to reside in Ireland with their Irish citizen spouse. They say
that it is clear from the judgments of the Court of Appeal that there is no
such absolute right. It is clear from those judgments that the family’s
decision to live in Ireland is a decision which they have a right to take and
which the State in Article
41 has guaranteed to protect, but it is not their
case that there is an absolute right to reside in Ireland. They submit that
nothing in the approach of the Court of Appeal requires any undue weight to be
given to
Article
41; rather it ensures that the Minister properly takes into
account the rights therein when he is making his decision. Thus while the
Minister must acknowledge and respect the family’s decision, the Court of
Appeal did not state or imply that he is bound by such decision, and indeed it
was careful to emphasise that he is not.
111
.
The Respondents stress on many occasions in
their written submissions that nothing in the judgments of the Court of Appeal
requires the Minister to “facilitate” or “promote” the family’s decision to
live in Ireland, as the Minister has suggested. They say that this is to
mischaracterise the judgments of the Court of Appeal. Those terms are not
mentioned in the judgments of that court and the Respondents have at no stage
contended that the Minister is under any such duty. Thus they submit that the
Minister is incorrect to say that the effect of those judgments is to oblige
him to give effect to the couple’s choice to live together in Ireland: it is
very clear from the text of those judgments that the Minister is not obliged to
permit the couple to live in Ireland. Furthermore, while the Minister suggests
that the Court of Appeal’s judgments oblige him to attach “positive weight” or
“presumptive priority” to the content of the couple’s decision to reside
in Ireland, again neither of these concepts appear in the judgments.
112. It is submitted that the High Court (in Gorry) and the Court of Appeal were correct in finding that the jurisprudence is clear that marriage between an Irish citizen and a third country national may engage a constitutional right to live as a family unit in the State, which can only be denied for countervailing proper purpose. The Respondents therefore submit that the Minister erred in his decisions in stating that there was no authority for the proposition that such a right may exist. The decisions of this Court in Cirpaci and the High Court (Clarke J, as he then was) in AA v. Minister for Justice [2005] 4 IR 564 are pointed to as authorities supporting the existence, in certain circumstances, of such a right. They submit that the effect of these judgments is that in certain circumstances, such as are said to exist in these cases, the Minister may be obliged to permit a citizen and third country national spouse to reside together in the State, but the right of the family to reside here is not absolute. The judgments of the Court of Appeal are entirely in keeping with the ratio of Oguekwe: there may, at the end of the process where the competing rights are balanced, be a prevailing right to reside which trumps the interests of the State.
113.
The Respondents suggest that the Minister
seeks on this appeal to use the very strength and emphasis of the language of
Article
41 to deprive it of real effect, in that he is arguing that because it
cannot be given effect to literally, it should not be given any significant
effect at all. The Respondents submit that the Minister’s “tepid” approach to
Article
41 (i.e. suggesting that the Minister is required to have regard to the
fact of the family’s entitlement to make a decision as to where to
reside, but not to its content) is formalistic and inconsistent with the
emphatic and mandatory terms of that
Article
. It is said that the Minister’s
objective on this appeal is to reduce
Article
41 to a mere cipher.
114.
To the extent that the State may be taken as
having suggested otherwise, the Respondents submit that the right of a married
couple to live together as a family is at the core of Article
41’s protection
of the family “in its composition and authority”. The rights protected
by that
Article
are those of the martial family as an institution and those of
its individual members. The position of the third country national changes when
they marry and become part of a family based on marriage, particularly if they
marry an Irish citizen. Referring to the authorities on
Article
41, they submit
that decisions about cohabitation and where the family will live are as
fundamental and important as joint decisions regarding ownership of the family
home and family planning/contraception, as discussed in Re
Article
26 and
the Matrimonial Homes Bill 1993 and McGee v. Attorney General [1974] IR 284, respectively. It is submitted that the family rights of cohabitation
and integrity as a family unit, as well as the right to respect for the
family’s authority to make decisions for itself, are matters of fundamental
constitutional value which must be afforded significant weight by the Minister.
115.
While the Minister has criticised the
“prescriptive” approach of the Court of Appeal and suggested that a more
holistic appraisal is required, the Respondents submit that this is no more
than an invitation to this Court to permit him not to give appropriate weight
to Article
41. What the Court of Appeal has done is provide a practical method
for analysis of those rights. Moreover, it is practical to take as a starting
point that the married couple is entitled to make a choice about where it will
live. The Minister, in considering whether to exclude the non-national spouse
from the State, should acknowledge and respect that choice, which should be a
significant factor in the proportionality balance.
116.
In response to the Minister’s submission
that the mere fact that a marriage is lawful should not automatically compel
the Minister to consider Article
41 rights engaged, the Appellants state that
if the Minister has in mind marriages of convenience, the same should not pass
the first leg of Finlay Geoghegan J’s test at all.
117.
As regards the relationship between
constitutional and ECHR rights, the Respondents submit that while the family
rights under Article
41 of the Constitution are similar to those under
Article
8 ECHR, there are differences. As stated in the court below, “protection”
(
Article
41) connotes more than “respect” (
Article
8). While there may be some
overlap between the provisions, the nature of the rights themselves are
substantially different. In this regard the Respondents refer to the emphatic
language of
Article
41. They say that he Minister on this appeal seeks to
whittle away at the language of the Constitution so as to equate
Article
41
with
Article
8 ECHR.
118.
It is submitted that the Minister treated
Article
41 as having, at best, the same legal status and content as
Article
8.
He erred in considering that
Article
8 ECHR is directly effective and the
primary source of rights protection; in considering that
Article
41 and
Article
8 are co-extensive for these purposes; and in considering that
Article
41 goes
no further than
Article
8 ECHR in saying that the State is not obliged to
respect a married couple’s right of residence unless the “insurmountable
obstacles” test is satisfied. It is clear from a reading of his decisions that
he afforded primacy to the rights under
Article
8 ECHR, so that the claim by
reference to the constitutional provision was treated as supplementary to the
Convention claim. No attempt was made by the Minister to subject the claim
based on constitutional rights to any detailed independent analysis. Indeed,
after eight pages devoted to the claim based on the ECHR, the much shorter consideration
of constitutional rights expressly references the
Article
8 consideration which
preceded it, as though the rights were exactly the same.
119.
While the Minister submits that there should
be no ordering of the consideration of the separate sources of rights,
preferring a holistic appraisal, the Respondents submit that it is clear from
his decisions that no consideration, holistic or otherwise, was given to the
differences in the nature of the rights, and that the constitutional rights
were considered as an addendum to the Article
8 rights. The
Article
8 ECHR
analysis of proportionality was applied to
Article
41, as though there was no
need for any form of separate analysis.
120. In relation to Oguekwe, it is submitted that nothing in that judgment relieves the Minister of the obligation to correctly identify the constitutional rights and interests engaged and to clearly and comprehensively address those interests. Moreover, even if the constitutional and ECHR rights can be considered together, this does not mean that exactly the same analysis can be applied to both. Even if the factors to be considered are the same, it is not the case that they have the same weight in each assessment or that the balancing exercise is the same. Given that each has a different starting point, the end result will often differ. It is submitted that it is clearly appropriate to first consider in detail the constitutional rights engaged. They must be assessed carefully if any proportionality analysis is to be properly conducted. Proportionality was not the subject of a sufficiently profound assessment, as necessitated by the Constitution.
121. Both sets of Respondents reply to the Minister’s submission that relief should be withheld on discretionary grounds. The Gorrys submit that the proceedings are moot and that it would be highly artificial to withhold relief on this basis in circumstances where the relief is no longer required and the Respondents have continued in the matter despite there being no incentive to do so. They submit that the invitation to uphold the appeal on this narrow and case-specific ground is inconsistent with the approach taken by the Minister in seeking leave to appeal. Moreover, it is submitted that on the facts the behaviour of the Respondents is a far remove from the sort of behaviour which has disentitled applicants to relief in other cases. It is further submitted that the Minister did not seek to have the Respondents’ relief withheld on this basis in the Court of Appeal and so should not be entitled to do so before this Court.
122. In respect of Mr Gorry, it is further submitted that it is unreasonable to expect him to move for reasons other than his residence rights as a citizen, including his health, age and family ties to Ireland. The practical effect of the continued existence of a deportation order in the present circumstances is to force the Irish citizen to choose between their right as a citizen to reside in the State and their right as a husband/wife to live with their spouse. It is further submitted that in the High Court, Mac Eochaidh J also upheld the Gorrys’ claim on irrationality grounds and that while the Court of Appeal did not expressly address this point, this is a further reason not to allow the Minister’s appeal.
123.
Ultimately, the Respondents submit that the
Minister did not consider the guarantee in Article
41 that the State will
protect the family in its constitution and authority, did not recognise that
the decision to live in Ireland is one made within the authority of the family
and therefore protected by that guarantee, and did not recognise the right of
the Irish citizen to live in Ireland. While the rights identified by the Court
of Appeal are not absolute and are capable of being outweighed by State
interests, the balancing exercise must commence from an appropriate point and
the identification of the constitutional rights which do exist is the most
appropriate place to start. The strong language of
Article
41 is more
imperative than that of
Article
8 ECHR and this is an important consideration
when assessing the proportionality of the interference with those rights. In
this case,
Article
41 was treated as, at best, supplementary to the ECHR claim,
with no attempt at any independent detailed analysis of the constitutional rights.
Finally, it is submitted (per Cirpaci) that situations will arise where
a decision to deport will not be proportionate in light of the constitutional
family rights engaged, and that this may be so even where deportation would not
breach
Article
8 ECHR.
Discussion/Decision
The Text of Article
41 of the Constitution and
Article
8 ECHR
124.
As noted above, the ECHR is not part of
Irish law and cannot be directly relied upon by a litigant in the Irish courts.
It has been given effect in a more limited way, and subject to the
Constitution, by the 2003 Act (see para. 15, supra). Two distinct issues
arise on this appeal as regards the relationship between Article
41 of the
Constitution and
Article
8 ECHR. The first, at the level of principle, concerns
the nature of the protections afforded by each provision: precisely what rights
are protected and to what extent? The second issue, somewhat dependent on the
answer to the first, concerns the extent to which the Minister’s decision on an
application to, for example, revoke a deportation order, must contain separate
analyses of the applicant’s rights under both provisions, or whether instead a
composite analysis will suffice. I will return to the interaction between
Article
41 and
Article
8 ECHR in the specific context of the Minister’s
impugned decisions at para. 196, infra.
125.
Article
41 and
Article
8 ECHR are set out at
paras. 13 and 14 above. One important differentiating feature, though one not
relevant to this appeal, concerns the nature or type of families which may
invoke the protections of each provision.
Article
8 ECHR is broader in the
sense that it may be invoked by non-marital families. It protects all forms of
family life and so can be called in aid even by de facto families not
based on marriage (see, for example, Keegan v. Ireland (1994) 18 EHRR 342). On the other hand, the decided cases to date have interpreted the
protections of
Article
41 of the Constitution as extending only to the family
based on marriage (see, for example, W. O’R v E.H. (Guardianship) [1996]
2 I.R. 248). Both families in this appeal are married couples and so may rely
on the constitutional provision.
126.
Given that the Applicants can invoke both
provisions, the question arises as to whether there is any difference in terms
of the substance or content of the rights protected under each, or the extent
of those protections. The Minister’s position is that Article
41 is more
limited in terms of what rights it protects and that its protections are no
weightier than those under
Article
8 ECHR. Humphreys J in his decision in the ABM
case in the High Court stated that:
“26. It has been a constant refrain of the European Court of Human
Rights that there is no automatic obligation on a State to respect the choice
of place of residence decided upon by a particular family … There is no logical
reason why there should be a significantly different position under Article
41
of the Constitution. It is true, of course, that
Article
41 uses somewhat more
emphatic language than art. 8 of the ECHR, but neither provision exists in a vacuum.
Even
Article
41 cannot be interpreted in such a way as to fail to cohere with
the overriding objective of an ordered society.”
127.
His underlying observation is correct
insofar as the learned judge is driving at the fact that under neither
provision are family rights absolute: clearly the rights invoked by the
Applicants, be they sourced in the Constitution or the Convention, cannot
automatically override the relevant State interests or compel the Minister to
decide the application in a particular way without conducting the required
balancing exercise. However, to the extent that the learned judge appears to
have taken the view that Article
41 and
Article
8 are coterminous and co-extensive
in their effect, I am of the view that this was an error.
128.
The first port of call in construing these
provisions has to be their text. The plain meaning of the terms used, seen in
the context of the documents as a whole, is the most obvious guide to the nature
and extent of the protections thereunder. Of course, those terms must be
construed in light of the jurisprudence of the domestic courts and the European
Court of Human Rights. One cannot divine the true meaning, relationship between
and relative extent of the provisions simply by laying them side by side and
contrasting the language used. Thus, it will in due course be necessary to look
at the detailed case law which has developed. We will start, however, with the
text of the Articles
.
129.
Pursuant to Article
41.
1
.
1
°, the Family is
recognised “as the natural primary and fundamental unit group of Society” and
as a “moral institution” which possesses “inalienable and imprescriptible
rights”, those rights being “antecedent and superior to all positive law.”
Pursuant to
Article
41.
1
.2°, the State, therefore, guarantees to “protect” the
Family in its “constitution and authority”, as the necessary basis of social
order and as indispensable to the welfare of the Nation and the State.
130.
Article
8.
1
ECHR provides that everyone has
the right to “respect” for, inter alia, his private and family life.
Article
8.2 provides that 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 etc (see para. 14, supra).
131.
I agree with the judgments of the Court of
Appeal that on a textual comparison of the two provisions, the constitutional recognition
and guarantee are stronger than that contained in the ECHR. As rightly observed
by both Finlay Geoghegan and Hogan JJ, at a most fundamental level, protection
of rights connotes more than respect therefor. With respect, I cannot agree
with the Minister’s suggestion that the court below has attached “undue legal
significance” to terms in Article
41 “that are plainly not intended to be taken
literally”, i.e. the use of the terms “inalienable”, “imprescriptible”, “moral
institution” and “antecedent and superior to all positive law”. Plainly these
terms are not intended to suggest that family rights under
Article
41 are
absolute; as stated by Costello J in Murray v Ireland [1985] I.R. 532 at
p. 538:
“Similarly,
the power of the State, to delimit the exercise of constitutionally protected
rights, is expressly given in some Articles
and not referred to at all in
others, but this cannot mean that, where absent, the power does not exist. For
example, no reference is made in
Article
41 to any restrictive power but it is
clear that the exercise by the Family, of its imprescriptible and inalienable
right to integrity as a unit group, can be severely and validly restricted by
the State when, for example, its laws permit a father to be banned from a
family home or allows for the imprisonment of both parents of young children.”
132.
Of course, certain of the terms just
described have a plain meaning. Generally speaking, an “inalienable” right is
one which cannot be taken or given away, transferred or repudiated. An
“imprescriptible” right is one which is not subject to being taken away by the
lapse of time. These terms, therefore, may be said to carry a definable
meaning. However, the references to the family as a “moral institution” and,
particularly, to the rights referred to being “antecedent and superior to all
positive law” are perhaps less clear, though the influence of natural law
thinking is unmistakeable. Nonetheless, even if it is the case that not every
word appearing in the provision can be taken absolutely literally, the emphatic
nature of the words used, and the sheer number of occasions in which such
strong language is employed in the provision, is undoubtedly of significance in
interpreting the Article
. The import of the Minister’s submission is that the
Court should use the very strength of the terms of
Article
41 to read down the
extent of the protections afforded by that provision to something closer to
that guaranteed by the less forceful language of
Article
8 ECHR. This does not
seem to me to be an appropriate approach to interpreting the provision.
133.
It is readily apparent that by the use of
these terms the drafters intended to secure for the rights of the family the
maximum degree of protection available; they are not absolute rights, of
course, but the stridency of the language is notable, and this must be taken
into account in interpreting the Article
. Moreover, merely because some of
these words are rhetorical or descriptive in nature does not mean that this
Court should be blind to those words, or interpret the provision as though they
were not present in it. As stated by Hogan J in his earlier judgment in FH
v. Staunton [2013] IEHC 533:
“While terms such as ‘inalienable’, ‘imprescriptible’ and ‘inviolable’ are liberally employed throughout the Fundamental Rights provisions of the Constitution, it must be recalled that these terms draw their provenance from the use of the very same or similar terminology in the continental constitutions of the 19th and 20th century. Neither the drafters of those constitutions nor the drafters of our Constitution intended that terms such as ‘inalienable’ or ‘inviolable’ should be read absolutely literally: …These terms were rather used to signify and to emphasise the importance of these rights and to convey their importance so that … such rights would enjoy ‘the highest possible level of legal protection which might realistically be afforded in a modern society’. Rather these terms were used to signify and to emphasise the importance of these rights and to convey their importance. The use of language of this kind further conveys an important signal as how necessary it was considered that these rights should be safeguarded against encroachment.” (Emphasis added)
134.
I believe that this is the correct approach
to interpreting the provision. For these reasons I do not accept the Minister’s
suggestion that the Court should overlook the more forceful terms of the
Constitution so as to give Article
41 a meaning which goes no further than does
Article
8 ECHR. Even if the difference between the provisions was no more than
the difference between the requirement to “protect” family rights and the
requirement to “respect” those rights, I would be very much of the view that
the former formulation conveys a greater guarantee than does the latter; when
this is allied to the undoubtedly stronger and more emphatic language contained
in
Article
41 relative to
Article
8 ECHR, the conclusion that the
constitutional provision goes further than the Convention provision seems, to
me, unavoidable.
135.
Of course, it is apparent even from Article
41.
1
.2° itself that the rights of the family are subject to social order
and ensuring the welfare of the Nation and the State. It has never been
suggested by the Applicants, or by the Court of Appeal, that the rights therein
are absolute. This is an important point which will be returned to later.
136.
I do not accept the Minister’s submission
that the Court of Appeal paid too much attention to the language used to describe
the rights in Article
41 and
Article
8 ECHR rather than to the content
of the rights therein. The argument is that the concept of “family life”
protected by the ECHR is broader than the protection of one particular
dimension of the Family under the Constitution, namely, its “constitution and
authority”. Thus, it is said that even if the Constitution does use stronger
language, what is protected is more limited in scope than the capacious
reference to “family life” in the Convention.
137.
It is not necessary for this judgment to
work out the full length and breadth of the scope of protection provided by
each provision in this regard. It may be the case that particular circumstances
could arise which are said to fall within the concept of “family life” but not
within the constitutional guarantee of protection of the “constitution and
authority” of the family. The Minister’s submission on this point, however, is
predicated on Article
41 protecting only the primacy of decision-making of the
family; for the reasons set out below, I am satisfied that the protections of
the constitutional provision go beyond simply protecting the family from having
its decision-making authority usurped by the State. In my view, the rights
identified by the Court of Appeal, including the right to decide to live
together, fall squarely within the protection afforded to the “constitution and
authority” of the family. I am therefore satisfied that the constitutional
protections are engaged and that the relative strength of the protections under
the Constitution and the Convention is therefore relevant to the Minister’s
decision.
138.
As a starting point, it can be stated that
on a textual analysis the protections of Article
41 of the Constitution are
stronger than the guarantee of respect contained in
Article
8 ECHR. The obvious
question, then, is how far each of the provisions goes in its protection of
family rights. Before answering this question it is necessary to consider the
case law of the European Court of Human Rights and of the Irish courts.
The Jurisprudence of the European
Court of Human Rights on Article
8
139. The jurisprudence of the European Court of Human Rights has long grappled with the conflicts that frequently occur between the legitimate interest of the State in controlling immigration and the claims of families seeking to be permitted to reside together in the State of which one of them is a non-national. In Abdulaziz v. United Kingdom (1985) 7 EHRR 471, at para. 67 the European Court stated as follows:
“67. The Court recalls that, although the essential object of
Article
8 … is to protect the individual against arbitrary interference by the
public authorities, there may in addition be positive obligations inherent in
an effective ‘respect’ for family life … However, especially as far as those
positive obligations are concerned, the notion of ‘respect’ is not clear-cut:
having regard to the diversity of the practices followed and the situations
obtaining in the Contracting States, the notion’s requirements will vary
considerably from case to case. Accordingly, this is an area in which the Contracting
Parties enjoy a wide margin of appreciation in determining the steps to be
taken to ensure compliance with the Convention with due regard to the needs and
resources of the community and of individuals … In particular, in the area now
under consideration, the extent of a State’s obligation to admit to its
territory relatives of settled immigrants will vary according to the particular
circumstances of the persons involved. Moreover, the Court cannot ignore that
the present case is concerned not only with family life but also with
immigration and that, as a matter of well-established international law and
subject to its treaty obligations, a State has the right to control the entry
of non-nationals into its territory.” (Emphasis added)
140.
The Court continued, in the following
paragraph, by noting that the duty imposed by Article
8 “cannot be considered
as extending to a general obligation on the part of a Contracting State to
respect the choice by married couples of the country of their matrimonial
residence and to accept the non-national spouses for settlement in that
country.” That this is so has since been repeated by the Court on many
occasions. To take but one example, the following comments of the Grand Chamber
of the Court in Jeunesse v. Netherlands (2015) 60 EHRR 17 (App. No. 12738/10, judgment of the 3rd October, 2014) are instructive:
“100. … [T]he Court reiterates that a State is entitled, as a matter of well-established international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there. The Convention does not guarantee the right of a foreign national to enter or to reside in a particular country … The corollary of a State’s right to control immigration is the duty of aliens such as the applicant to submit to immigration controls and procedures and leave the territory of the Contracting State when so ordered if they are lawfully denied entry or residence.
…
103. Where a Contracting State tolerates the presence of an alien in
its territory thereby allowing him or her to await a decision on an application
for a residence permit, an appeal against such a decision or a fresh
application for a residence permit, such a Contracting State enables the alien
to take part in the host country’s society, to form relationships and to create
a family there. However, this does not automatically entail that the
authorities of the Contracting State concerned are, as a result, under an
obligation pursuant to Article
8 of the Convention to allow him or her to
settle in their country. In a similar vein, confronting the authorities of the
host country with family life as a fait accompli does not entail that
those authorities are, as a result, under an obligation pursuant to
Article
8
of the Convention to allow the applicant to settle in the country. The Court
has previously held that, in general, persons in that situation have no
entitlement to expect that a right of residence will be conferred upon them …
…
106. While the essential object of Article
8 is to protect the
individual against arbitrary action by the public authorities, there may in
addition be positive obligations inherent in effective ‘respect’ for family
life. However, the boundaries between the State’s positive and negative
obligations under this provision do not lend themselves to precise definition.
The applicable principles are, nonetheless, similar. In both contexts regard
must be had to the fair balance that has to be struck between the competing
interests of the individual and of the community as a whole; and in both
contexts the State enjoys a certain margin of appreciation.
107. Where immigration is concerned, Article
8 cannot be considered
to impose on a State a general obligation to respect a married couple’s choice
of country for their matrimonial residence or to authorise family reunification
on its territory. Nevertheless, in a case which concerns family life as well as
immigration, the extent of a State’s obligations to admit to its territory
relatives of persons residing there will vary according to the particular
circumstances of the persons involved and the general interest. Factors to be
taken into account in this context are the extent to which family life would
effectively be ruptured, the extent of the ties in the Contracting State,
whether there are insurmountable obstacles in the way of the family living in
the country of origin of the alien concerned and whether there are factors of
immigration control (for example, a history of breaches of immigration law) or
considerations of public order weighing in favour of exclusion …
108. Another important consideration is whether family life was
created at a time when the persons involved were aware that the immigration
status of one of them was such that the persistence of that family life within
the host State would from the outset be precarious. It is the Court’s well-established
case-law that, where this is the case, it is likely only to be in exceptional
circumstances that the removal of the non-national family member will
constitute a violation of Article
8 …”
141.
The principles derived from the
jurisprudence of the European Court of Human Rights were helpfully summarised
by Lord Phillips MR in R. (on the application of Mahmood) v. Secretary of
State for the Home Department [2001] 1
W.L.R. 840 in a passage previously
cited with approval by Fennelly J in Cirpaci and by Denham J in Oguekwe.
From these decisions he drew the following conclusions as to the approach
of that court to the potential conflict between the respect for family life and
the enforcement of immigration controls:
“(1
) A state has a right under international law to control the
entry of non-nationals into its territory, subject always to its treaty
obligations.
(2) Article
8 does not impose on a state any general obligation to
respect the choice of residence of a married couple.
(3) Removal or exclusion of one family member from a state where
other members of the family are lawfully resident will not necessarily infringe
article
8 provided that there are no insurmountable obstacles to the family
living together in the country of origin of the family member excluded, even
where this involves a degree of hardship for some or all members of the family.
(4) Article
8 is likely to be violated by the expulsion of a member
of a family that has been long established in a state if the circumstances are
such that it is not reasonable to expect the other members of the family to
follow that member expelled.
(5) Knowledge on the part of one spouse at the time of marriage that
rights of residence of the other were precarious militates against a finding
that an order excluding the latter spouse violates article
8.
(6) Whether interference with family rights is justified in the interests of controlling immigration will depend on (i) the facts of the particular case and (ii) the circumstances prevailing in the state whose action is impugned.”
142.
Mac Eochaidh J, in Gorry, having reviewed
the case law and the Minister’s decision in respect of those Applicants, concluded
at paragraph 31 that the proper test in respect of the contest between State
and family rights, in the context of Article
8 ECHR, is not assessed by
reference to an insurmountable obstacles standard, but rather “by applying the
age-old and most reliable of legal standards in administrative law: is it
reasonable to expect a spouse to join the removed or excluded spouse in his
country of residence?” He thus held that the Minister had erred in law in
failing to revoke the deportation order in the absence of insurmountable
obstacles as, in the learned judge’s view, there is no such test.
143. Humphreys J considered this issue at paras. 48-53 of his judgment in ABM. He agreed with Mac Eochaidh J that the insurmountable obstacles test is derivative language which can only be understood in the context of all of the cases from which it has been derived. Given that the test is referred to extensively in the case law, he did not consider it proper to assume that the Minister was not aware of its true meaning in accordance with that jurisprudence, i.e. that it is legitimate question but not an all-or-nothing test. He therefore agreed with Mac Eochaidh J that there is no “insurmountable obstacles” test in the sense of a determinative bar that an applicant must meet or fail. Rather, it is one of a number of questions that can be asked as to the overall circumstances. The absence of insurmountable obstacles does not guarantee the failure of a claim, but similarly a reference by the Minister to insurmountable obstacles does not render a decision invalid.
144. In the Court of Appeal, Finlay Geoghegan J agreed with the Minister’s submission that Mac Eochaidh J had erred in stating that the insurmountable obstacles test is no longer to be applied: the European Court of Human Rights continues to apply that test and the Irish courts are obliged to take judicial notice of its decisions and the principles therein. However, she felt that the difference between this test and what Mac Eochaidh J considered to be the correct test (i.e. whether it would be reasonable to expect the Irish spouse to move to the other spouse’s country) is really one of nomenclature rather than substance. She stated that a consideration of individual decisions demonstrates that it is a very fact-specific test and referred to the decision of Clark J in Alli & Anor. v. Minister for Justice, Equality & Law Reform [2009] IEHC 595 to the effect that the test requires “no more than a significant difficulty which cannot easily be overcome”, albeit that “minor or significant inconvenience” would not satisfy the test. Finlay Geoghegan J noted (at para. 102) that the Minister had taken a slightly different approach to the insurmountable obstacles test in ABM, an approach closer to that of Clark J in Alli. Referring to the judgment of the European Court of Human Rights in Jeunesse, Finlay Geoghegan J concluded as follows on this topic:
“104. I draw attention to the obligations of domestic authorities stated by the ECtHR above in the context of the application of the insurmountable obstacles test to assess evidence in relation to both the practicality and feasibility of the family moving to the country of the non-national. The third matter to be assessed is the proportionality of the removal of the non-national where it would require such a move in order to keep the family together. I recognise that in the case of a potential move of a family with children a more stringent application of the proportionally assessment may be required by the ‘best interests’ of the children principle. However that does not appear to take away from the fact that the ECtHR considers that in considering ‘insurmountable obstacles’, what is required is to look at both the ‘practicality and feasibility’ of the family, or more particularly in this instance the Irish citizen, moving to live in Nigeria.”
145. I have little to add to this analysis. While it is clear that the European Court of Human Rights continues to refer to a nominal “insurmountable obstacles test”, this test must be properly understood in the sense described by Clark J in Alli and by Finlay Geoghegan J in the judgment under appeal. It would undoubtedly be an error were the Minister to interpret the test too literally, for clearly that would set the bar far higher than is reflected by the substance of the decisions of the ECtHR. Beyond making those observations, however, it is not necessary, in light of my conclusions on the other issues arising, to consider the application of that test to the facts of the within cases.
Article
41 of the Constitution - Immigration/Asylum Case Law
146.
It should be acknowledged from the outset
that even if the protections of Article
41 of the Constitution are stronger
than those under Art 8 ECHR, it is clear that any rights thereunder are not
absolute and may have to yield to the interests of the State in maintaining an
orderly immigration system. The State undoubtedly has a right to control
immigration. This entails the power to regulate, inter alia, the entry, residence
and removal of non-nationals from the State. This is regarded as an inherent
power of the sovereign State, though it is given effect and regulated by
statute. Hardiman J stated as follows at p. 168 of his judgment in F.P. v.
Minister for Justice [2002]
1
I.R. 164:
“The inherent nature of these powers in a state is demonstrated by their assertion over a vast period of history from the very earliest emergence of states as such, and its existence in all contemporary states even though these vary widely in their constitutional, legal and economic regimes, and in the extent to which the rule of law is recognised.”
147.
In AO and DL v. Minister for Justice
[2003] 1
I.R.
1
, Keane C.J. at pp. 24-25 stated as follows:
“The inherent power of Ireland as a sovereign State to expel or deport non-nationals (formerly described in our statute law as ‘aliens’) is beyond argument. In Pok Sun Shum v. Ireland [1986] I.L.R.M. 593 Costello J. said at p. 599:
‘the State … must have very wide powers in the interest of the common good to control aliens, their entry into the State, their departure and their activities within the State.’
In Osheku v. Ireland [1986] I.R. 733, Gannon J. said at p. 746:
‘The control of aliens which is the purpose of the Aliens Act, 1935, is an aspect of the common good related to the definition, recognition, and protection of the boundaries of the State. That it is in the interests of the common good of a State that it should have control of the entry of aliens, their departure, and their activities and duration of stay within the State is and has been recognised universally and from earliest times. There are fundamental rights of the State itself as well as fundamental rights of the individual citizens, and the protection of the former may involve restrictions in circumstances of necessity on the latter. The integrity of the State constituted as it is of the collective body of its citizens within the national territory must be defended and vindicated by the organs of the State and by the citizens so that there may be true social order within the territory and concorde maintained with other nations in accordance with the objectives declared in the preamble to the Constitution.’
This statement of the law by Gannon J. was expressly approved of by this court in Laurentiu v. Minister for Justice [1999] 4 IR 26.
However, while the power to expel or deport non-nationals inheres in the State as a sovereign state, and not because it has been conferred on particular organs of the State by statute, it has, almost from the foundation of the State, been regulated by statute.”
148. A non-national (meaning a person who is not a citizen of Ireland or any other EU Member State or any EEA State) has no right to be in Ireland unless he or she obtains permission from the Minister (unless some other obligation is imposed on the State pursuant to EU law or international law, which is not the case here). Presently the requirement to obtain such permission is imposed by section 4 of the Immigration Act 2004, as amended (see para. 16, supra).
149. It follows, as is clear from the authorities, that a married couple comprising an Irish citizen spouse and a non-national spouse do not have an automatic right to reside together in Ireland simply by virtue of their marriage and that the State is not obliged to respect the choice of residence of such a couple. The first named plaintiff in Pok Sun Shum v. Ireland [1986] I.L.R.M. 593 was a Chinese national who arrived in this country in 1978 and worked in a restaurant. As a result of a serious incident in 1979, the Minister informed him that he must leave the country. Later that year he married the second-named plaintiff. They had three children and his wife was expecting a fourth child. His wife sought a declaration that she was “normally entitled to the society of [her husband] within the State.” According to Costello J at p. 596, “[t]hat is so, and I don't think it needs any declaration of the court for that to be made clear.” Further down the page and into the next page, however, the learned judge continued as follows:
“Mr Gaffney SC submitted on behalf of the plaintiffs that because of the very entrenched provisions of the family rights in the Constitution, these could not be trenched upon, in any way, by the State and, in particular, by the Aliens Order. He went so far as to answer a question I put, to say that if an alien landed in the State on one day and married the next day to an Irish citizen in the State, the State was required, by the Constitution, to safeguard the rights which were given to the family, and these could not be taken away by the Aliens Act 1935. In other words, the order made under the Aliens Act 1935 was unconstitutional. I cannot accept that view. I do not think that the rights given to the ‘family’ are absolute, in the sense that they are not subject to some restrictions by the State and, as Mrs Robinson SC has pointed out, restrictions are, in fact, permitted by law, when husbands are imprisoned and parents of families are imprisoned and, undoubtedly, whilst protected under the Constitution, these are restrictions permitted for the common good on the exercise of its rights. It seems to me that the Minister’s decisions and the Act, and orders made under it are permissible restrictions and I cannot hold that they are unconstitutional.”
150.
There is no shortage of authorities stating
that the Minister is not obliged to respect the choice of residence of such a
married couple. In Fitzpatrick v. Minister for Justice [2005] IEHC 9,
Ryan J (as he then was) reiterated the definition of the rights of such married
parties as being “less than absolute”. This was referred to by Clarke J (as he
then was) in his judgment in AA and anor v. Minister for Justice Equality
& Law Reform and Another [2005] 4 IR 564, where he stated at para. 19
that “[i]t is clear that parties such as the applicants do not have an absolute
right to reside in this jurisdiction as a family, notwithstanding the
constitutionally recognised family rights which they hold as a married couple.”
To similar effect, although the claim in this case was not based on marriage,
are the comments of Birmingham J (as he then was) in G.O. (a Minor) v.
Minister for Justice [2010] 2 I.R. 19: “I cannot accept that it is open to
individuals to arrive in the State on what is essentially a false basis, as
indicated by the rejection of their claim to asylum status, and then proceed to
so organise their family affairs as to frustrate the operation of the
immigration system” (p. 37). In Khan v. Minister for Justice and Equality [2014] IEHC 533, Noonan J observed that “[i]t is axiomatic that the mere fact of
marriage between an Irish citizen and a non-national cannot of itself give rise
to any automatic or absolute right for the couple to reside in the State.”
There the learned judge concluded at para. 60 that the Minister “was still
entitled to come to the view that even where Article
41 and
Article
8 rights
arose and were engaged, the countervailing interest of the State in maintaining
the integrity of the immigration process ought to prevail over those rights.”
Finally, if I might refer to the judgment of Clark J in U (H) & ors v.
Minister for Justice, Equality & Law Reform [2010] IEHC 371, where the
learned judge stated that:
“It is frequently forgotten in arguments relying on the considerable
constitutional protection afforded to the family under Article
41 that social
order and the welfare of the State are part and parcel of the respect afforded
to the family and the role played by the family in upholding that social order
and the common good of the citizens of the State. The rights of the family cannot
detract from social order and the common good and are, like other strongly
protected rights, not absolute. The competing rights of the State to serve the
common good and the welfare of the nation in preserving a fair and effective
immigration policy are not set at nought by family rights. When a decision to
deport is being considered, family rights must be weighed against the competing
interests of the State. Neither the Constitution nor the Convention guarantees
that the marriage between an Irish citizen and a foreign national gives that
couple an automatic right to live together in Ireland and defeat immigration
policies. This is clear from such authorities as Pok Sun Shum v. Ireland
[1986] I.L.R.M. 593, Osheku v. Ireland [1986] I.R. 733.and A.O. and D.L.
v. The Minister [2003]
1
I.R.
1
. These authorities establish that a foreign
national who marries an Irish citizen does not acquire the rights of an Irish
citizen. If that foreign national is unlawfully in the State when he marries,
his status is not cured by his marriage.”
151. However, there are also a number of cases which contemplate a situation whereby either the factual circumstances of the case will be such as to give rise to a right of the Irish citizen to live in Ireland with their non-national spouse or, at the very least, will give rise to a situation whereby the only lawful outcome to the balancing exercise required of the Minister will be to grant permission to the non-national spouse to enter/reside/remain in the State. An important judgment in this regard is that of Fennelly J for this Court in Cirpaci v. The Minister for Justice, Equality & Law Reform [2005] 4 IR 109. There the learned judge stated as follows at para. 30:
“It is legitimate for the respondent to have regard to the duration of the marriage relationship when weighing in the balance the family rights in question. In the course of argument, a number of hypothetical cases were explored. At one extreme an Irish citizen might contract a marriage, valid under the laws of a remote jurisdiction, while on holiday there. Could such a person, within days of the marriage, insist, to the point of demanding that the brevity of the marital relationship was irrelevant, that his or her new spouse be granted a visa admitting him or her to reside in the State? At the other extreme would be an Irish citizen, who had lived abroad for many years, perhaps for his or her entire working life. Such a person has, as a citizen, an undoubted right to return to reside in Ireland on retirement or earlier. It is not necessary to pose the constitutional question whether that person would have the right to be accompanied by his or her foreign spouse of many years. For my own part, I have no doubt that such a right exists. It would not, of course, be absolute. The foreign spouse might be a notorious criminal. It is enough to say that, in the most benign of such circumstances, the respondent would be entitled and possibly bound, in exercising the statutory powers applicable to such situations, to give favourable consideration to a claim that such a person be permitted to be accompanied by his or her spouse. Thus, I am satisfied that the respondent is entitled to take into account, when considering whether to revoke a deportation order, the length of time during which the parties to a marriage have lived together as a family unit.” (Emphasis added)
152. Referring to this passage in his judgment in A.A. v. Minister for Justice, Clarke J stated as follows at para. 29:
“It, therefore, seems clear that in a case where a valid deportation order has been made and where the first respondent is requested to revoke that deportation order by virtue of the existence of new circumstances in the form of family rights (under the Constitution) or rights deriving from a permanent relationship (under the Convention) the first respondent is obliged to consider the rights of all concerned. Indeed, it would appear that it is possible that, in certain circumstances, for the reasons outlined by the Supreme Court (Fennelly J.) in Cirpaci the first respondent may even be obliged in some cases to come to a conclusion in favour of acting so as to permit the parties to reside together in the State.” (Emphasis added)
153. In S (P) & E (B) v Minister for Justice [2011] IEHC 92, Hogan J stated as follows:
“22. In these circumstances, the practical effect of the Minister’s
decision would be to condemn this couple to live apart, more or less
permanently. It is very hard to see how such a decision would conform to the
State’s obligation contained in Article
41.3.
1
of the Constitution ‘to guard
with special care the institution of marriage’, absent some compelling
justification. Of course, the imperative need to uphold the integrity of the
asylum system could - and often does - provide such a justification.
23. In this regard, the task of the Minister is to balance
potentially competing interests in a proportionate and fair manner. It is true
that there is a considerable public interest in deterring illegal immigration
and the Minister must naturally be prepared to act to ensure that the asylum
system is not manipulated and circumvented. Nevertheless, the requirement that
the Minister must balance competing rights necessarily involves a recognition
that, important as the principle of maintaining the integrity of the asylum
system undoubtedly is, it must sometimes yield - if only, perhaps, in unusual
and exceptional cases - to countervailing and competing values, one of which is
the importance of protecting the institution of marriage. The rights conferred
by Article
41 of the Constitution are nevertheless real rights and must be
regarded as such by the Minister. They cannot be treated as if, so to speak,
they were mere discards from dummy in a game of bridge in which the Minister as
declarer has nominated the integrity of the asylum system as the trump suit.”
154. Similarly, Hogan J in his judgment in A (X) (an Infant) and Others v. Minister for Justice and Others [2011] IEHC 397 stated that:
“15. There can be no suggestion that the family rights protected by
Article
41 are in some way absolute. Yet, at the same time, the rights thereby
conferred cannot be regarded as being purely theoretical, the essence and
substance of which must be respected at all times. This very point was made by
Cooke J. in Ugbelese v. Minister for Justice, Equality and Law Reform [2010] 4 IR 233, 241):-
‘The judgment of the court as given by Denham J. in the Oguekwe case [2008] 3 IR 795 identifies, in effect, two key factors involved in the exercise required of the Minister when deciding whether a deportation order should be made in such cases. First, the Minister must consider all facts relevant to the personal constitutional rights of the child and secondly, he must identify a ‘substantial reason’ which requires the deportation of the non-national parent. Having ascertained ‘the facts and factors affecting the family’ and the child in each case ‘by due inquiry’ he must consider the circumstances in a fair and proper manner so as to arrive at a decision which is reasonable and proportionate in all of those circumstances.
In other words, the personal and Convention rights of the child and of the family are not absolute but may be required to yield, or be subordinated to, the public interest of the State in the common good in controlling its frontiers where, after due investigation and consideration, a reasonable and proportionate decision is made that there is substantial reason for interfering with those rights.’
…
21. … [T]he Minister's decision must always respect the essence and
substance of the right of the married couple under Article
41. A decision
which, in practice, compels the couple to life more or less permanently apart
is, by definition, a very significant interference by the State with a core
principle valued and protected by
Article
41. Such a decision is one which,
quite obviously, requires compelling justification: see, e.g., my own judgment
in S. v. Minister for Justice, Equality and Law Reform [2011] IEHC 92.
While the necessity to uphold the common good and the integrity of the asylum
system may well supply that justification, it is nonetheless imperative that
the respective rights of the applicants and the interests of the State must be
fairly weighed by the Minister.”
Are Article
41 Rights Engaged?
General Case Law
155.
The Minister argues that the positive duties
identified by the Court of Appeal as arising from Article
41 are inconsistent
with the text and case law on that provision. The family’s rights thereunder,
he says, are essentially negative in character. He has argued that the primary
– if not indeed the only - concern of
Article
41 is to preserve the
decision-making primacy of the family over internal matters. In support of this
he points to decisions such as North Western Health Board, Re
Article
26 and the Matrimonial Homes Bill 1993, AO and DL and PH v. John
Murphy and Sons.
156.
An early judgment which grappled with the meaning
of Article
41 was that of Kenny J in the High Court in Ryan v. Attorney
General [1965] IR 294. The learned judge rejected the argument that the
fluoridation of drinking water constituted a violation of
Article
41.
1
.2°:
“Not one of the counsel in this case has attempted to state what the
inalienable and imprescriptible rights of the Family are and, as the
Constitution gives little help on this, I am in some difficulty in dealing with
this argument. ‘Inalienable’ means that which cannot be transferred or given
away while ‘imprescriptible’ means that which cannot be lost by the passage of
time or abandoned by non-exercise. … Some clue to the ambit of the rights of
the family referred to in Article
41 is to be found in sub-s. 2 of section
1
where there is a reference to a guarantee by the State to protect the family in
its constitution and authority. It seems, therefore, that the rights referred
to in section
1
, sub-s.
1
, of
Article
41 relate to the constitution and
authority of the family. It was argued by the plaintiff's counsel that the
addition of the fluoride ion to drinking water affected the authority of the
family to decide what drink and food the members of the family should consume
and that the Act of 1960 was, therefore, an attack on the authority of the
Family. … In my opinion, legislation dealing with the contents of food or drink
does not in any way affect the authority of the Family and the Act of 1960 is
not an interference with the rights guaranteed to the family by
Article
41.”
(pp. 308-309)
In the Supreme Court, Ó Dálaigh C.J. held at p. 350 of the report that “[t]here is nothing in the Act which can be said to be a violation of the guarantee on the part of the State to protect the family in its constitution and authority”, without delving into the contours of the constitutional provision.
157.
Also relevant in this regard is McGee v
Attorney General [1974] IR 284. This of course concerned Mrs McGee’s
challenge to the constitutionality of the section providing that it would not
be lawful for any person to sell, or import into Ireland for sale, any
contraceptive. She argued that this deliberately frustrated a decision made by
she and her husband on behalf of the family and touching a matter of vital
importance to the family, and therefore attacked the family in its “constitution
and authority”. The argument was that the rights of the family under Article
41
must include the right to make the kind of decision that she and her husband
had made. Though she was successful in this Court, three of the four judges in
the majority based their judgment on
Article
40.3. The fourth, Walsh J, went
extensively into the argument based on
Article
41, and as always it is worth
having regard to what the learned judge had to say:
“It is a matter exclusively for the husband and wife to decide how many children they wish to have; it would be quite outside the competence of the State to dictate or prescribe the number of children which they might have or should have. In my view, the husband and wife have a correlative right to agree to have no children.
... It is a fundamental point ... that the rights of a married couple to decide how many children, if any, they will have are matters outside the reach of positive law where the means employed to implement such decisions do not impinge upon the common good or destroy or endanger human life ... It is outside the authority of the State to endeavour to intrude into the privacy of the husband and wife relationship for the sake of imposing a code of private morality upon that husband and wife which they do not desire.
In my view, Article
41 ... guarantees the husband and wife against
any such invasion of their privacy by the State. It follows that the use of
contraceptives by them within that marital privacy is equally guaranteed
against such invasion and ... that it cannot be frustrated by the State taking
measures to ensure that the exercise of that right is rendered impossible.”
It is
of course instructive in its own right, however, that the majority dealt with
the claim pursuant to Article
40.3.
1
°, rather than
Article
41.
158.
Murray v. Ireland was another case canvassed in the course of the submissions. The
plaintiffs were a husband and wife who were found guilty of murder and
sentenced to penal servitude for life. They commenced proceedings seeking
declarations of their entitlement, whilst serving their sentences, to have the
opportunity to exercise conjugal rights in order to beget children. The High
Court dismissed their claim ([1985] I.R. 532). At pp. 535-539, Costello J (as
he then was) discussed whether the asserted right to procreate was protected by
Article
40 or
Article
41. He expressed the view, on the basis of the judgment
of Kenny J in Ryan and the majority judgments of this Court in McGee,
that there are “strong reasons for supposing” that the right of spouses to
beget children is constitutionally protected by
Article
40 rather than
Article
41. He went on to state, however, that the right “should not be devalued”
merely because it happens to be a ‘personal’ right” protected by
Article
40.3.
1
°,
without the benefit of the more expressive and explicit language employed in
Article
41, and felt that the argument did not hinge on where the right was
situated. Ultimately, he took the view that the right might be validly
restricted by the State in certain circumstances and that in the instant case,
the restriction on the plaintiffs’ right to beget children was a reasonable
consequence of the State’s power to imprison and was therefore constitutionally
permissible.
159. The plaintiffs appealed against this decision. In the Supreme Court ([1991] I.L.R.M. 465), Finlay CJ summarised the decision of Costello J into seven findings, including the following:
(1
) The Constitution by explicitly recognising and protecting the
concept of the institution of marriage implicitly recognises and protects the
right of each spouse in marriage to beget children.
(2) That right obtains its protection from Article
40 of the
Constitution and not, as was contended by the plaintiffs, from
Article
41.
At p. 472 he expressed his “complete agreement” with
these principles. However, as appears from the judgment of McCarthy J at p.
474, while the plaintiffs did challenge the High Court’s preference for
recognition under Article
40 in their grounds of appeal, they did not in fact
pursue that ground of appeal. Also of note is the following comment of Finlay
CJ at p. 472:
“I accept that the fact that the Constitution so clearly protects the institution of marriage necessarily involves a constitutional protection of certain marital rights. They include the right of cohabitation; the right to take responsibility for and actively participate in the education of any children born of the marriage; the right to beget children or further children of the marriage; and the right to privacy within the marriage: privacy of communication and of association. It is quite clear that as an inevitable practical and legal consequence of imprisonment as a convicted person that a great many of these constitutional rights arising from the married status are for the period of imprisonment suspended or placed in abeyance.” (Emphasis added)
160.
P. H. v John Murphy & Sons Ltd [1987] I.R. 621 is another relevant decision of Costello J. The
plaintiffs’ father had been very seriously injured in an industrial accident as
a result of the defendants’ negligence, and the plaintiffs sought damages for
the alleged infringement of their constitutional rights under Articles
41 and
42. The learned judge analysed the former
Article
in the following terms (pp.
625-627):
“Whilst this paragraph [1
.
1
°] contains a ‘recognition’ by the State of the Family's
‘imprescriptible’ rights it makes no attempt to define or otherwise enunciate
what these rights are. Instead, it goes on in the next paragraph to impose
specific and clearly defined duties on the State in relation to the Family.
Arising from the nature of the Family, which is acknowledged in the first
paragraph of
Article
41, and as a consequence of it, its second paragraph
provides that the State ‘guarantees to protect the Family in its constitution
and authority’ and explains that it is doing so because the Family is ‘the
necessary basis of social order’ and because it is ‘indispensable to the
welfare of the Nation and the State’. It will be noted that this sub-section
(
Article
41.
1
.2) imposes duties on the State vis-à-vis the Family. The rights
which the Family enjoys vis-à-vis the State are those which are correlative to
the duties imposed by the sub-paragraph and can be ascertained by reference to
those duties. … in this case the basis for such a claim should be sought in
Article
41.
1
.
1
rather than in
Article
41.
1
.2 which relates to the State’s
obligations towards the Family. But the undefined rights which obtain
constitutional protection by virtue of the provisions of the first
sub-paragraph must be the same as those which obtain protection under
Article
41.
1
.2 for it would be an unreasonable construction of the Constitution to
suggest that the rights which obtain protection from the State's ‘recognition’
in
Article
41.
1
.
1
are either more extensive or more restricted than those which
the State ‘guarantees to protect’ in
Article
41.
1
.2.
…
The guarantee which the State gives in Article
41.
1
.2 is a guarantee
to protect the Family ‘in its constitution and authority’. So, if it could be
shown that the Oireachtas had enacted a law which in some way failed to
protect the ‘constitution’ of the Family or the ‘authority’ of the Family (as
defined in the Constitution) then the State’s guarantee would have been
breached. Again, the State would have failed in its obligation to protect the
Family if one of its officials deliberately acted so as to attack or
impair the ‘constitution’ or the ‘authority’ of the Family and an action for
damages would lie unless the impugned acts could in some way be justified under
some other provision of the Constitution. But the ‘constitution’ and the ‘authority’
of the family unit could be impaired, indeed, destroyed, by the negligent and
careless act of a State official — for example, by the negligent driving of an
army lorry which killed the parents of young children and which resulted in the
dispersal of the children into different foster homes. Could it be said that
the State had then broken its
Article
41.
1
.2 guarantee? I do not think so. It
must be remembered that the court is construing a constitutional document whose
primary purpose in the field of fundamental rights is to protect them from
unjust laws enacted by the legislature and from arbitrary acts committed by
State officials. It would require very clear words to construe the State's
constitutional obligations (as distinct from its common law obligations) as
including a duty to ensure that its officials would not drive carelessly. I do
not think that the words employed in
Article
41 are apt to do so, and the State’s
guarantee of protection does not, in my judgment, include a guarantee that its
officials will drive State vehicles without negligence.
It follows that the rights which are conferred by Article
41.
1
.2 are
(a) the right to protection from legislation which attacks or impairs the
constitution or the authority of the Family and (b) the right to protection
from the deliberate acts of State officials which attack or impair the
constitution or authority of the Family. It would also follow that a private
person whose negligent act had so seriously injured the head of a Family
that the constitution of the family unit was fatally impaired had not thereby
infringed any constitutional right enjoyed by members of the affected Family
under either paragraph of
Article
41, section
1
. In the light of these
conclusions I must hold that the defendant in this case had not been guilty of
any breach of a constitutional duty imposed on them by this
Article
.” (Emphasis
in original)
While
this interesting analysis pays particular attention to the wording of the
relevant constitutional provisions and is notable in that regard, I would not
regard all of the cited extract as being consistent with subsequent authority
concerning the application of Article
41.
161.
The North Western Health Board ([2001] 3 IR 622) case is well known to many as the case concerning the PKU test or
“heel prick” test. The plaintiff applied for an order permitting it to carry
out a PKU screening test on the infant child of the defendants notwithstanding
the fact that the defendants had refused to give their consent. The said test
was not provided for by legislation nor was it mandatory. The order was refused
by the High Court and, on appeal, by a majority of this Court. In the course of
his judgment, Murray J said the following in respect of Article
41 of the
Constitution:
“Article
41 of the Constitution, in recognising the family as a
moral institution possessing inalienable and imprescriptible rights, does not
purport to establish the family as an institution but recognises its inherent
status as such with rights which are ‘antecedent and superior to all positive
law’. In doing so it reflects, as I have mentioned, a shared value of society
and places it within, what Finlay C.J. described in Webb v. Ireland
[1988] IR 353 at p. 383, as ‘… the framework of the society sought to be
created and sought to be protected by the Constitution …’.
One of the inherent objects of the Constitution is the protection of
liberties. Article
41.2 in providing that ‘The State, therefore, guarantees to
protect the Family in its constitution and authority …’ provides a guarantee
for the liberty of the family to function as an autonomous moral institution
within society and, in the context of this case, protects its authority from
being compromised in a manner which would arbitrarily undermine the liberty so
guaranteed.”
162.
In the earlier judgment in the Article
26
reference in respect of the Matrimonial Home Bill ([1994]
1
I.R. 305),
Finlay C.J., giving the judgment of the Court, stated as follows at pp.
326-327:
“Having regard to the extreme importance of the authority of the
family as acknowledged in Article
41 of the Constitution and to the acceptance
in that
Article
of the fact that the rights which attach to the family
including its right to make decisions within its authority are inalienable and
imprescriptible and antecedent and superior to all positive law, the Court is
satisfied that such provisions do not constitute reasonably proportionate
intervention by the State with the rights of the family and constitute a
failure by the State to protect the authority of the family.
The Court accepts, as it has indicated, the advantages of encouraging, by any appropriate means, joint ownership in family homes as being conducive to the dignity, reassurance and independence of each of the spouses and to the partnership concept of marriage which is fundamental to it. It is not, however, satisfied that the potentially indiscriminate alteration of what must be many joint decisions validly made within the authority of the family concerning the question of the ownership of the family home could reasonably be justified even by such an important aspect of the common good.”
163.
The Minister has also placed reliance on the
decision of this Court in AO and DL v Minister for Justice [2003] 1
I.R.
1
. This concerned a deportation order made in respect of the non-national
parents of an Irish born child. The majority of this Court held that the
constitutional right of the Irish born applicant to the company, care and
parentage of its parents within the State was not absolute and unqualified and
that the Minister was obliged to consider whether, in the circumstances of the
case, there were “grave and substantial reasons associated with the common good”
which required the deportation of the non-national applicants. The Minister is
correct to state that the outcome of the case means that the constitutional
right of the child to the care and company of its parents did not impose a
positive duty on the State to implement or give effect to the decisions of the
parents that such care and company should be provided within the State; of
course, the argument is not made in the within appeal that there is any
obligation on the Minister to give effect to the choice made. The issue is as
to the requirement on the Minister to take the choice into account when
weighing the opposing interests, and the weight to be attributed to it.
164.
The Minister further relies on the comment
of Hardiman J at p. 159 of AO and DL, where in distinguishing North
Western Health Board he stated that “[a] decision about a child’s medical
treatment is, prima facie, within the authority of his family. A
decision about an alien parent’s desire to live in the State is not.” This
comment must, I think, be seen in the context of the surrounding discussion
regarding imputing a choice by the non-national parent onto the citizen child.
In any event, in context I read the learned judge’s comment not as saying that
Article
41 is not engaged at all but rather that the choice cannot be decisive,
in the sense that the Minister is not obliged to give effect to it.
Application of Article
41 on this
Appeal
165.
It is correct of the Minister to point out
that many of the seminal cases concerning Article
41 have centred upon this
particular aspect of the “authority” of the family, i.e. they involve
situations where an external party purported to act as the primary
decision-maker for the family. This certainly is an important facet of the
protection afforded by
Article
41, and one inherent in the provision’s
guarantee that the State will protect the family in its constitution and
authority. This aspect of the measure has been the most-frequently litigated; given
its wording and the case law, one can understand the readiness of plaintiffs to
invoke its protection in circumstances where another entity - most likely the
State or an emanation thereof - seeks to make for the family a decision which
they believe should be theirs to decide.
166.
In my view, where the Minister is in error
is in suggesting that the application of Article
41 is in some way limited to
such scenarios. Merely because this is not a situation where the State is
asserting primary authority over the family’s decision-making entitlements does
not mean that the Applicants have no
Article
41 rights which must be included
in the evaluative mix by the Minister. While much of the case law relied upon
have focussed on the State acting as decision-maker for the family, these
authorities do not state that this is the full extent of the provision, or its
sole application, nor do they foreclose on the conclusions of the Court of
Appeal in this case. I do not, therefore, regard the judgments of that Court as
being in any way inconsistent with the case law concerning this provision. Rather,
I would regard such as being rooted firmly in the text of
Article
41 itself.
167.
At the risk of repetition, Article
41.
1
.
1
°
of the Constitution refers to the Family, inter alia, “as a moral
institution possessing inalienable and imprescriptible rights,
antecedent and superior to all positive law” (emphasis added). That sub-
Article
does not, however, define in any way what those rights are. This raises the
obvious question of how to figure out what rights are being referred to. At the
broadest level of analysis, one could theoretically seek to identify such
rights from some source external to the Constitution or, much more likely, from
within its text. Reservations about the former approach would be well justified:
any approach which sought to import rights which are neither explicitly
referred to in the Constitution, nor which arise as an implicit or implied
consequence of the text of the Constitution, would be contrary to decades of
established jurisprudence and the separation of powers. That can safely be
ruled out.
168.
Nonetheless, there must be some way to
identify the “inalienable and imprescriptible rights” referred to, if they are
to be given any effect. The only alternative approach
to ascertaining the identity of these elusive rights is by reference to the associated
text of the Constitution; most obviously, to the rest of Article
41 itself and,
perhaps to a lesser extent,
Article
42. In this respect,
Article
41.
1
.2° is instructive insofar as it provides that “[t]he State, therefore,
guarantees to protect the Family
in its constitution and authority …” (emphasis added). The italicised word
“therefore” suggests an interconnectedness between
Articles
41.
1
.
1
° and 41.
1
.2° which may, in any event, be self-evident from the numbering
of the sub-paragraphs. Thus, on a cohesive reading of the provision, it may be
said that as
Article
41.
1
.
1
° recognises that the Family possesses certain (unspecified) rights and
Article
41.
1
.2° imposes
a correlative duty on the State to protect the Family “in its constitution and
authority”, the rights referred to in
Article
41.
1
.
1
° must therefore be rights
relating to the “constitution and authority” of the Family. This is compatible with
the analysis of Costello J in P. H. v John Murphy
& Sons Ltd (para. 160, supra) and seems
to me to be an appropriate reading of the provisions.
169.
If this is the correct approach to
interpreting the Article
, the
question then logically arises as to what is meant by the Family “in its
constitution and authority”: what rights are protected? Whilst O’Donnell J.
and I are in broad agreement that the inalienable and imprescriptible rights
referred to in
Article
41.
1
.
1
are the correlative rights arising from the
State’s duty to protect the Family “in its constitution
and authority”, we differ on precisely what rights this entails. For my own part, I would consider that it must surely be the case
that, as regards two married Irish citizens, a right of cohabitation can be
regarded as one of the rights of the marital family protected by
Article
41 of
the Constitution. I could not regard the right of the married citizen couple to
live together as anything other than fundamental to
Article
41’s protection of the
family “in its constitution and authority”. The right to live
together flows from the protection of the family in its “constitution” - I
agree that such term must be understood, in this context, to refer to the
composition, or structure, of the family. O’Donnell J (at para 49 of his
judgment) posits that cohabitation could go only to the type of family
life enjoyed by a married couple, with the result that because cohabitation
does not bear on whether a couple constitute a family, cohabitation does not come
within the constitutional guarantee to protect the Family in its
constitution; I do not read that guarantee so restrictively, but rather
consider that it is capable of applying not only to the marital status of the
couple and the number of children that they have, but also to its physical
composition in the sense of the Family, the “natural primary and fundamental
unit group of society”, in fact living together as a unit (subject to lawful
limitation, such as where one spouse is imprisoned). This, it seems to me,
accords not only with the ordinary meaning of the word “constitution” but also
with
Article
41.
1
’s positioning of the Family as the fundamental unit group of
society, which would seem to entail something more than protection merely for
the legal status of a marriage. So read, I could not agree with any suggestion
that
Article
41 does not contain a right of marital cohabitation for two Irish
citizens, given this express guarantee to protect the composition of the
family. Similarly, the right of such a couple to decide to live together is one
which must be taken as stemming from the guarantee to protect the family in its
“authority”, which, for these purposes, I would interpret as meaning its
capacity to make decisions. I would therefore express the view, though obiter,
that Irish citizens married to one another have a right of cohabitation which is
firmly anchored in the text of
Article
41 of the Constitution, in addition to
Article
40.3.
170.
Even on the more specific approach favoured
by O’Donnell J, whereby the substantive protection afforded by Article
41.
1
.
1
° “is
not expansive or unlimited but, rather, specific and derived” (para. 14 of
his judgment), with the consequence that the rights therein referred to be
understood by reference to the rest of
Articles
41 and 42 as originally drafted
and since amended, and particularly the reference to the “constitution and
authority” of the Family in
Article
41.
1
.2°, there is in my view still to be
found in
Article
41 a constitutional right to cohabit with one’s spouse. I do
not understand O’Donnell J to say that the reference to the “constitution” of
the family is to be read solely in light of the subsequent sub-
Articles
containing (originally) the prohibition on, and (subsequently) the criteria
for, divorce, though I hope that I do no disservice to his judgment when I
suggest that it does appear that the meaning to be attributed to the term
“constitution” is, in his view, largely to be understood in this light. In my
view, however, the literal meaning of the protection of the “constitution” of
the Family, howsoever read, extends to the recognition of a constitutional
right to cohabit. To be sure,
Article
41 itself does not contain an explicit
reference to such a right, but I am satisfied that it is itself derived from
the plain meaning of the word “constitution”, used in that context. As such, I
do not consider that one is required to stretch beyond the borders of the
Constitution and pluck such a right from the ether in order for it to find its way
into the document. This, in my view, is inherent in the literal meaning of the
word and nothing in the remainder of the text of
Articles
41 and 42 detracts
from this conclusion or compels me to any other.
171.
This is not to say, of course, that such
right could ever be regarded as absolute, even for two citizens. That is
certainly not the case. It could not feasibly be argued that the State may not
lawfully imprison a spouse convicted of a serious crime because to do so would
violate that person’s right to live with their spouse - or the corresponding
right of their partner to live with them. Article
41 plainly would not support
any such conclusion, notwithstanding the stridency of its terms. However,
merely because the right is not absolute and may have to yield to conflicting
rights and interests does not mean that the right does not exist, or that it may
not be a significant one in other contexts.
172. The situation is of course different where one of the spouses is a non-national. The State has an inherent and statutory power to control the entry of non-nationals into Ireland. As discussed above, such a person has no right to be in Ireland unless he or she obtains permission from the Minister. This is not automatically changed by the mere fact of their marriage: to hold otherwise would not be conducive to an orderly immigration system.
173.
It seems clear from the case law, however,
that some degree of protection arises under Article
41. The question is as to
the extent of this protection and how the Minister must give effect to it. In Gorry
Mac Eochaidh J, having reviewed the jurisprudence, concluded that an Irish
national married to a non-Irish national has a prima facie (but not
absolute) right to reside in Ireland with that other person, subject to lawful
regulation. Not every set of circumstances (e.g. a wedding on a whim in Las
Vegas) would engage the right. This seems largely in line with the obiter comments
of Fennelly J in Cirpaci at para. 30 (see para. 151, supra). In ABM,
Humphreys J preferred not to characterise this as a “prima facie right”,
saying instead that such a couple should receive “prima facie acknowledge
and consideration of their status under
Article
41”, but this would not mean
that a deportation decision has to be phrased in any particular way.
174.
In the Court of Appeal, Finlay Geoghegan J
took the view that the approach of Mac Eochaidh J went too far: given the power
of the State to control immigration, it would be putting it too high to say
that the couple have a prima facie constitutional right (even a
non-absolute right) to live in Ireland under Article
41. As to the view
expressed by Fennelly J in Cirpaci, she considered that this was better
conceived of as a constitutional obligation which may be placed on the State in
certain circumstances, rather than a fundamental right of the citizen.
175.
Having stated that there was no right, as
such, for the couple to reside in Ireland, Finlay Geoghegan J continued at
paragraph 78 by setting out what is, in her view, the correct position. She
stated that the Applicants, as lawfully married couples and a Family within the
meaning of Article
41 of the Constitution, have a constitutionally protected
right to have the Minister consider and decide their application with due
regard to:
(i)
the guarantee given by the State in Article
41.
1
.2° to protect the family in its constitution and authority;
(ii)
a recognition that they are a family, a
fundamental unit group of society possessing inalienable and imprescriptible
rights, which rights include a right to cohabit, which is also an individual
right of the citizen spouse which the State must, as far as practicable, defend
and vindicate (Article
41.
1
and
Article
40.3.
1
°);
(iii)
a recognition that the decision that the family
should live in Ireland is a decision which they have a right to take and which
the State has guaranteed in Article
41.
1
to protect; and
(iv)
a recognition of the right of the Irish citizen
to live at all times in Ireland as part his or her ‘birth right … to be part of
the Irish Nation’ (Article
2) and the absence of any right of the State (absent
international obligations which do not apply) to limit that right.
176. As the learned judge continued in the next paragraph, the Constitution places corresponding obligations on the Minister to take the decision as to whether or not to permit the non-national spouse to reside in Ireland with due regard to each of these constitutional rights.
177.
This, in my view, is an accurate assessment
of the considerations at issue. I agree with the Court of Appeal that, having
regard to the State’s power to control immigration, it would not be correct to
regard the Irish citizen as having a prima facie right, even a
non-absolute one, to reside in the State with a non-national spouse. It is
clear on the basis of the case law, however, that Article
41 is engaged in the
present context. Moreover, the considerations identified by Finlay Geoghegan J
are firmly rooted in the text of the Constitution itself.
178. One might perhaps wonder what is the practical difference between a non-absolute, prima facie right (which is subject to regulations/limitations), which the Court of Appeal found does not exist, and the right to have the Minister take the above rights at (i) to (iv) into account when making his decision. After all, even on Mac Eochaidh J’s formulation, the Minister was not obliged in every case to accept the choice of residence of the couple. This was still just one matter, albeit a particularly heavy one, which weighed in the balance against the contrasting interests of the State. I agree with the Court of Appeal, however, that such formulation goes too far, in that identifying such a prima facie right elevates the position of the applicant higher than is supported by the authorities and is inconsistent with the right of the State to control immigration. The Applicants, notably, have not contended on this appeal that Finlay Geoghegan J was incorrect in stepping back from the conclusions of Mac Eochaidh J in favour of the more nuanced position which she favoured. They are content to rest their case on what the Court of Appeal has prescribed as the right approach.
179.
It is all a finely balanced exercise. Ultimately,
the decision will be taken by the Minister on the recommendation of a
Department official. A human being will be required to weigh the various
factors in support of both sides and to come to a conclusion. It is difficult
to know with certainty how much more, or less, weight a given individual will
give the applicants’ rights depending on whether they are framed as
non-absolute prima facie rights, or an entitlement to an acknowledgement
of their status under Article
41, or as requiring the Minister to have regard
to, but not necessarily to give effect to, the constitutional rights identified
by the Court of Appeal. Nonetheless, the Court of Appeal was careful in its
analysis, and I am satisfied that it has correctly identified the rights at
play and properly positioned them within the balancing framework.
180.
The Minister submits that “the positive
duties which the [Court of Appeal] identifies as arising from Article
41 are
inconsistent with the text and caselaw relating to that provision”. It is not
entirely clear, however, why this is said to be so. On my reading of the
judgment of the Court of Appeal, the constitutional obligations or duties on
the Minister are to correctly identify, and then appropriately weigh, the
constitutional rights of the Applicants when conducting the balancing exercise
which is called for when considering an application to revoke a deportation
order, or to grant a visa to enter and reside in the State. I do not understand
the Applicants to contend for any greater obligation on the Minister than to do
just this, nor do I see the Court of Appeal as having directed the Minister to
do any more than this.
181.
Much of the thrust of the Minister’s
submissions on this appeal proceeds from the erroneous premise that the
judgment of the Court of Appeal in some way imposes a duty on the State to
“promote” or to “facilitate” the decision of the family to live in Ireland. To
similar effect, he has argued that the judgment of the court below requires him
to afford some manner of “presumptive priority” to the Applicants’ rights over
those of the State. I must say that I have considerable difficulty identifying
anything in the judgments of the Court of Appeal which might convey this
impression. As Finlay Geoghegan J quite rightly made abundantly clear at
paragraphs 79 and 92 of her judgment, and Hogan J at paragraph 25 of his,
though the Minister must proceed from a starting point of recognising that the
decision of the family to live in Ireland is one which they have a right to
take and which the State has guaranteed in Article
41.
1
to protect, this does
not oblige the Minister to give effect to that decision. In other words, while
the family’s right to decide to live in Ireland is one that must be recognised
and appropriately weighed in the mix, this is far from saying that it must
automatically prevail over legitimate countervailing State interests.
182.
The Applicants quite wisely have not
contended on this appeal for any absolute constitutional right (or even prima
facie constitutional right) of Irish citizens to have their non-national
spouses reside with them in Ireland. Evidently no such right could be absolute
and will always have to be balanced against the interests of the State in, inter
alia, maintaining an ordered immigration system. At their height, the
Applicants’ submissions are to the effect that, in certain circumstances, the
facts may be such that the only reasonable, proportionate and lawful conclusion
to the requisite balancing exercise will be that a deportation order is
quashed, or that the non-national spouse will be given the desired permission
to enter/reside in the State, as the case may be. They say that as part of this
exercise, the Minister must appropriately acknowledge and weigh their rights
under Article
41, even if this does not give rise to a right to reside. They do
not argue for an absolute right to reside regardless of the circumstances of
the case and marriage, but rather that on occasions the facts may be such that
the Minister, after having conducted the required exercise, will only have one
lawful and proportionate answer open to him. Similarly, the judgments of the
Court of Appeal go no further than this, and certainly do not oblige the
Minister to promote or give effect to the family’s decision as to where it will
reside.
183.
I consider it entirely appropriate that the
Minister, when considering an application of the nature just mentioned, should first
recognise and appropriately put in the balance the rights of the Applicants. I
do not see this as inconsistent with the text of Article
41; rather, it arises
from it. It is entirely proper that these rights should be acknowledged by the
Minister and weighed against the State interests which may militate against
granting the application. Indeed, it is difficult to see how the Minister could
propose to carry out the requisite balancing exercise without first identifying
and weighing the relevant constitutional rights of the Applicants. I cannot
therefore find fault with the approach of the Court of Appeal in finding that
the Minister must appropriately identify the relevant constitutional rights of
the Applicants in order that they may be weighed in the balance.
184.
Thus, the position as arising from the
judgments of the Court of Appeal is that the Minister is required to protect
the right of the family to decide that it should live in Ireland, but is not
obliged to give effect to it. However, the Minister takes issue with this. If
initially his concern was that the Court of Appeal had elevated the rights of
the Applicants too high by requiring him to give effect to their choice (which
clearly is not the case), he argues that if all he is required to do is take
account of the rights identified by Finlay Geoghegan J but not to give effect
to them, this is to elevate an insignificant criterion to an unjustified
position of prominence in the evaluative exercise. He asks how much practical
significance or influence the identified rights may have if he is not required
to give effect to them. He suggests that incorporating this as a criterion in
the decision-making mix is wont to produce confusion rather than clarity and
that what he calls the “limited scope” of this Article
41 entitlement does not
support the pre-eminence given to it in the approach of the Court of Appeal.
185. These submissions seem to presuppose that if the Minister is not required to give effect to the couple’s decision, then his obligation to protect their right to make that decision is not a meaningful one; in other words, that if the couple’s right to decide where to reside does not have to be respected in substance, then it should not have been elevated to this position of prominence by the Court of Appeal. Respectfully, this is to underplay the significance in the balancing exercise of the positioning of this constitutional right and the corresponding obligations on the Minister. Of course, the couple’s decision as to where to live is not binding on the Minister; it may be outweighed by other considerations and interests. But this does not mean that the Court of Appeal’s declaration that the starting point of that balancing exercise should be the identification of the relevant constitutional rights and interests at play in any way elevates an insignificant consideration to too high a status.
186. What the court below was saying, quite simply, was this: these are the constitutional rights at play, this should be recognised from the outset, they must be considered and they will weigh in the Applicants’ favour. The recognition that these rights are engaged and potentially affected by whatever decision the Minister should make is the starting point for the exercise required. These are important constitutional considerations and they should be accorded a weight which reflects this status. Clearly, however, they are not absolute. In no sense can it be supposed that they will necessarily prevail. While significant in their own right, they may be outweighed by similarly - or more - important interests on the State side. This does not detract from the fact that the jumping off point for the Minister’s analysis has to be the recognition that these rights are engaged and will be impacted by the decision which he makes. He may very well still come down on the side of the countervailing interests of the State; nothing in the judgment of the Court of Appeal or this judgment requires him to give any presumptive priority, or undue weight, to the constitutional rights of the Applicants. What they do need to be accorded is their proper weight; this can only be done by acknowledging that they are engaged. In order to make a lawful, reasonable and proportionate decision, the Minister is required first to recognise the constitutional rights which are engaged and to then give them their due weight. In this sense it is vital that the required balancing exercise starts with an acknowledgment of what precisely he is weighing against the State interests. That is what was decided by the Court of Appeal. In my view, that court neither elevated too high, nor relegated too low, the constitutional rights of the Applicants. It appropriately recognised them and noted that they are the appropriate starting point for the analysis that follows. The couple’s decision does not have to be given effect, but it carries constitutional weight nonetheless - more so than the Minister was affording to it. This, in effect, is the via media that the Court of Appeal appropriately sought to achieve.
187.
It appears to me that the practical
difficulty perceived by the Minister stems from the fact that he seems to
regard the issue of constitutional rights under Article
41 as something of a
binary proposition: either (i) he is obliged to give effect to the family’s
decision as to where to live (i.e. the family’s rights in this regard are
absolute) or (ii) he is required to respect the fact of the decision but not
its content (i.e. he is not obliged to give effect to the decision), which is
an entitlement of such limited scope that it will not carry much weight in the
balancing exercise. In other words, that the family’s choice is either decisive
or effectively meaningless. The former, the Minister regards as untenable; the
latter, the Minister sees as carrying little practical significance or
influence in his decision, and therefore does not support the prominence given
to it by the Court of Appeal. Thus his position seems to be that if he is not
required to give effect to the couple’s decision, then it should not be to the
forefront of the balancing exercise required, for to do so is to put undue
weight on a consideration which cannot support it, resulting in confusion.
188. As stated, many of the Minister’s submissions on appeal seem to be based on a misreading of the judgments of the Court of Appeal; or, at least, on a fear that they may be misread. What the judgments of that court require the Minister to do is begin his assessment by acknowledging the constitutional rights at play. This, I should think, is a relatively uncontroversial proposition. It is difficult to conceive of how the evaluative exercise called for can be carried out without acknowledging the factors which will weigh on either side, and no assessment of the factors in the Applicants’ favour can begin without recognising the constitutional rights and interests that may be impacted by the Minister’s decision. As stated by Finlay Geoghegan J, the rights and obligations identified by her at para. 78 of her judgment will always be engaged where the marriage is a lawful one: regardless of the factual circumstances of the case, these considerations will be at play. As stated in the court below, the Minister does not have to give effect to the couple’s decision to live in Ireland but this does not mean that that decision is therefore a matter of no, or insignificant, constitutional value. That the couple have a right to take this decision is an important consideration in its own right and it should be afforded significant weight together with the other matters identified at para. 78 of the judgment of the Court of Appeal. Thus, the starting point of the Minister’s balancing exercise must be that there are weighty constitutional interests on the Applicants’ side which favour granting the decision (to, for example, issue a visa, or revoke a deportation order). This flows from the rights identified. While the Minister is certainly not bound by the family’s decision as to where to reside, he must proceed from the position that there are significant constitutional interests on the Applicants’ side which must be weighed in the balance.
189. As repeatedly stressed, however, the Applicants’ rights in this regard are far from absolute. The countervailing interests which will be invoked by the State in favour of, for example, refusing to issue a visa, or refusing to revoke a deportation order, are themselves of significant weight in this exercise. These include the Minister’s undoubted interest in controlling entry to the State, in maintaining an orderly immigration system, in preventing disorder and crime, in ensuring the integrity of the social security and health systems, etc. None could deny the importance of these goals and nothing in this judgment should be perceived as downplaying them.
190. What is required, then, is to balance the considerations on each side: those that favour revoking the deportation order (or granting the visa etc.) and those that do not. What the Court of Appeal has done - correctly, in my view - is identify the constitutional rights and interests at play on the Applicant side. They are important and they must be taken into account by the Minister. Again, this does not mean that they are afforded ay presumptive priority relative to the considerations which will weigh against them. The task for the Minister is to balance these factors to reach a reasonable and proportionate decision. I do not think that it is helpful or wise to try to define the constitutional balancing exercise by reference to a particular test or formula of words. I do not, for example, consider that much is achieved by declaring that only in “exceptional circumstances” or where there are “compelling justifications” will a particular side prevail. What the Minister must do is take account of and duly weigh the relevant considerations - including the constitutional rights of the Applicants - in order to arrive at a lawful, reasonable and proportionate decision.
The Proper Approach
191.
The Minister’s other overriding concern arising
from the judgment of the Court of Appeal is that it gives rise to a practical
difficulty as to how it is actually to be applied when he is making decisions. He
objects to what he describes as the bifurcated approach of Finlay Geoghegan J,
which requires him to have regard in stage one to the Article
41 rights of the
Family and then only at the second stage to take into account facts such as the
circumstances or length of the marriage, the immigration record of the
non-national etc. (see paras. 84-85 of the judgment of Finlay Geoghegan J). He
says that there is no legal necessity or practical logic to separating the
Minister’s evaluation of the legality of the marriage from his evaluation of
its circumstances. He says that a general and holistic approach, which has been
how such decisions have been approached since Oguekwe, permits all of
the relevant legal and factual considerations to be fairly balanced without
according pre-eminence to any one of them. He says that the Court of Appeal’s
approach of according automatic status to a single consideration is inevitably
liable to disfavour other rights or interests, even where they might be more
relevant or pertinent to a particular application.
192. Again, the Minister’s argument presupposes that the approach set out by the Court of Appeal requires an undue weight to be accorded to the rights of the Applicants. This is not the case. All that that approach indicates is that, where the marriage in question is a lawful one, the recognised constitutional considerations will weigh in the Applicants’ favour. This does not mean that they will automatically prevail; it does not mean that they are accorded priority; it does not mean that they are given undue weight. All that it entails is that the Minister recognise from the outset that certain constitutional rights and interests will be engaged where there is a lawful marriage. I do not see how the requirement to proceed from a starting point of recognising the constitutional interests at play on the Applicants’ side – something which, as discussed below, does not seem to have occurred in these cases - can be said to in some way tilt the balance in the Applicants’ favour. One might perhaps question whether the approach proposed by the Court of Appeal is really a “two-stage test”, given that the rights identified as arising in stage one are inherent in the fact of the lawful marriage and thus the fact that those rights are at play at all will not vary from case to case. The first stage is really no more than a recognition of this backdrop. The evaluative balancing part of the exercise occurs in what is termed stage two. This is where the individual circumstances of the couple, their immigration history, the marriage etc. come into play. The fact that the rights identified in the so-called “stage one” are engaged will in no way prevent the Minister from concluding, on an assessment of all of the factors at play, that the interests of immigration control must prevail and that the non-national spouse should therefore by removed or excluded from the State.
193. So viewed, I do not consider that anything in the judgment of the Court of Appeal is inconsistent with the suggestion in Oguekwe that family rights issues need not be approached in a “micro specific format”. That approach still permits of the relevant factors to be considered and appropriately weighed by the Minister in stage two, albeit against the backdrop of the constitutional rights which will have been recognised as being engaged during stage one.
194. It would be foolish to attempt to enumerate all of the matters which the Minister may properly have regard to in any given case. I do not intend the following to be in any way an exhaustive set of factors. Equally pertinently, the weight to be attributed to any given factor will vary considerably with the circumstances of the case. Just as the family rights of the applicants will tend to weigh in their favour, ever-present on the other side will be the interests of the State in immigration control. The circumstances of the marriage and of the underlying relationship will need to be considered, including the duration of the marriage and how long the couple had known each other beforehand: the “Las Vegas marriage on a whim” referred to at para. 42 of the judgment of Mac Eochaidh J in Gorry will understandably be treated very differently to the situation referred to by Fennelly J at para. 30 of Cirpaci whereby an Irish citizen, having worked his whole life, wishes to retire to Ireland with his or her foreign spouse of many years. As noted by Humphreys J at para. 43 of ABM and by the ECtHR in Jeunesse at paras. 104-105, the position of a settled migrant will be considerably stronger than that of someone with precarious status. The immigration status of the non-national spouse when the relationship was formed, and when the marriage was entered, will be relevant, particularly if that relationship/marriage was entered when said immigration status was precarious, or the non-national was unlawfully in the country. Knowledge by the Irish spouse of that precarious or unlawful immigration status will be taken into account. Regard will also be had to any history of breaches of immigration law and to any public order considerations (including any criminal record) which militate in favour of exclusion of the non-national spouse. Where children are involved, the best interests of the child will need to be considered, as of course will any constitutional rights of the child.
195. The Minister must balance the relevant considerations to arrive at a lawful, reasonable and proportionate decision. That the starting point is recognition of the constitutional rights at play does not mean that the Applicants’ rights are afforded any presumptive priority or undue weight. The balance may well weigh in favour of the removal or exclusion of the non-national spouse. However, this conclusion cannot lawfully be reached if the relevant constitutional rights and interests of the Applicants have not been recognised by the Minister and weighed in the balance.
The Impugned Decisions - Treatment
of the Article
41 and
Article
8 ECHR Claims
196.
The real difficulty which the Court of
Appeal had with the impugned decisions of the Minister is that the Minister
applied essentially the same approach to the State’s obligations in respect of
the constitutional rights of the Applicants as it did to their claim based on
Article
8 ECHR. It was the wholesale adoption of this ECHR-analysis and its
application to the constitutional rights issue which was legally flawed, in the
Court of Appeal’s view. Thus, the failure to subject the constitutional claim
to a detailed analysis, independent of that conducted in respect of the ECHR, was
the problem. Central to this finding was that the starting point for each
analysis is different: see paras. 92-94 of the judgment of Finlay Geoghegan J.
197.
The Minister submits that he did, in fact,
conduct the appropriate balancing exercise, as mandated by the Court of Appeal,
in respect of each of the decisions at issue - perhaps not in the sequence
required by that court, perhaps not using the bifurcated approach (as between
Constitution and ECHR) prescribed by that court, but that the substance of what
is required was in fact carried out. This seems to have been the view taken by
Humphreys J in ABM, where at para. 46 the learned judge stated that “[i]t
is a matter for the Minister to balance the interests involved. She has done
so, and the balancing exercise is not unlawful or disproportionate. Article
41
of the Constitution was clearly considered.”
198. I cannot agree with the Minister’s submission or with the conclusion of Humphreys J. The decisions are described at paras. 24-27 (Gorry) and 48-50 (ABM), supra. Reading these decisions, one cannot but agree with the Court of Appeal that the Minister appears to have regarded the ECHR as the primary source of family rights at issue, with the constitutional claim treated as being, at best, identical in nature and substance, and perhaps even ancillary or subordinate thereto. For the reasons outlined above, this was not a legally accurate approach having regard to the content and strength of the rights protections under each provision and the status of the Constitution as the fundamental and primary source for the protection of rights in this jurisdiction.
199.
Following long treatments of the
jurisprudence of the ECHR and the Applicants’ rights under that Convention, the
constitutional claims are dealt with in short order in the brief paragraphs set
out at para. 26 and 50, supra, respectively. Of course, many of the factual
and legal considerations at play will be identical whether one is assessing the
application by reference to the Constitution or the Convention. Sometimes there
may well be total overlap. But that is not to say that the weight to be
allocated to those considerations will be the same regardless of which lens
they are being looked at through. Most pertinently, the very analysis which the
Minister must undertake when evaluating those considerations varies as between
the Constitution and the ECHR. In other words, he may be taking the same
factors into account, but that does not necessarily mean that he will reach the
same conclusion under the Constitution and under the Convention. What is absent
from the decisions in question is any appreciation or recognition of the fact
that the position of the Applicants is stronger under the Constitution, that
their family rights derive greater protection thereunder, or that the starting
point (and therefore, in a sense, the test that must be applied) is different
under both provisions. Even if no separate factors were to be considered in
respect of each Article
, that does not mean that the two analyses will be the
same. It does not, to me, seem possible to read the Minister’s decision and
reach any view other than that the Minister regarded the conclusion in respect
of the constitutional analysis as following inexorably from the conclusion
reached on the
Article
8 claim. In substance there was, as noted by the Court
of Appeal, no separate consideration of the constitutional rights of the
Applicants. This was not the correct approach.
200.
The error in the Minister’s approach of
conflating the Convention claim with the claim under the Constitution is
perhaps best illustrated by the fact that he analysed the ECHR claim by applying
the “insurmountable obstacles” test, concluding in each case that there are no
insurmountable obstacles to the families settling in Nigeria, nor any exceptional
circumstances such as to render deportation a breach of Article
8 ECHR, and
therefore that the applications would be refused. While this may have been
appropriate approach to the Applicants’ rights under the Convention, it is not
the correct method for assessing their claim based on the Constitution. The
rights of the marital family are stronger under the Constitution than they are
under the Convention. The weighing of the constitutional claim calls for a
careful balancing exercise between the above-identified rights of the
Applicants, on the one hand, and the interests of the State, on the other. It
may well be, and on many occasions will be, that the result of this balancing
exercise comes down on the side of the State interests, thus favouring the
removal or exclusion of the non-national spouse from the State. That, however,
is nonetheless a different test from what is required pursuant to
Article
8
ECHR, where the starting point seems to be to say that there is no requirement
to respect the couple’s choice of residence unless there are insurmountable
obstacles (as properly understood per the case law) to the couple moving to the
country of the non-national spouse. For all of the reasons discussed above, that
is not the proper starting point for constitutional analysis - it is not
correct, from a constitutional perspective, to say that the couple’s decision
to live in Ireland will be respected only if there exceptional circumstances or
there are insurmountable obstacles to moving to the non-national spouse’s home
State.
201.
Thus what is not permissible is to start
with the Convention analysis, conclude that there are no insurmountable
obstacles to the couple moving to the State of the non-Irish spouse, and
therefore that removal or exclusion of that spouse will not infringe Article
8
ECHR - and then simply repeat that analysis in respect of
Article
41 of the
Constitution, effectively importing the same test into the Constitution even
though the starting point of the constitutional balancing exercise is different
(given that
Article
41 rights are stronger) and therefore the exercise itself
is going to be different. It is not correct, for constitutional purposes,
simply to apply the ECHR test. It is, however, very difficult to avoid the
conclusion that this is precisely what the Minister did.
202.
While the Minister has argued that the
Applicants have not identified any matters pertinent to Article
41 but not
Article
8 ECHR which were not considered in the impugned decision, this is to
miss the point: even if precisely the same factors were to be considered under
both rubrics, the conclusion may well be different. The starting point of the
analysis differs as between the provisions and the various factors will not
have identical weight under both
Articles
(most notably, the family rights
being stronger under
Article
41). On any reading of the decisions, the Minister
appears to have treated the constitutional claim as at best equivalent to - and
perhaps subsidiary to - the Convention claim. There need not necessarily be
separate factors in each test. The error was in carrying out an identical
balancing exercise in respect of both provisions, treating them as though the
factors carried equal weight in both.
203.
Moreover, I reject the Minister’s submission
that his decisions were in full compliance with the decision of this Court in Oguekwe.
That decision rightly acknowledges that there will be some overlap in terms of
the factors to be considered. I do not accept, however, that it can be read as
the Minister suggests here, that is, to obviate the need to conduct a thorough,
detailed analysis of the position concerning the Applicants’ rights under the
Constitution. To the extent that that judgment states that Convention rights
may be “considered together” with Constitution rights in the Minister’s
decision, I do not consider that this permits the Minister to perform a single
analysis only, in the process relegating the stronger constitutional rights of
the Applicants to the level of that provided by Article
8 ECHR. As noted above,
it undoubtedly is the case that in many circumstances there will be
considerable overlap in the factual considerations which must be taken into
account in respect of the Constitutional analysis and those which must be
considered in respect of the Convention analysis. I do not think that the
judgments of the Court of Appeal can fairly be read to suggest that a decision
by the Minister could successfully be challenged merely for failing to repeat verbatim,
in respect of the ECHR analysis, those facts which are set out earlier in the
document in respect of the consideration of the constitutional issue. Some
internal cross-referencing in this regard seems logical and permissible. What
is critical is that the analyses themselves are carried out in the proper
manner. The considerations may largely be the same but the tests are not.
Moreover, those considerations may not carry equal weight under both
provisions. As stated above,
Article
41 of the Constitution contains stronger
guarantees of protection of family rights than does
Article
8 ECHR; one would
expect, therefore, that these rights will weigh more heavily in the Applicants’
favour on the constitutional analysis than when the Convention is being
considered. It may well be the case that circumstances will arise where an
application to the Minister will be unsuccessful on the ECHR ground but
successful by reference to the Constitution. In respect of a marital family, it
seems at present unlikely, given what has been decided concerning the relative extent
of the protection under both provisions, that the converse will often hold true
(i.e. that the ECHR claim will succeed where the constitutional one fails), but
I would not necessarily like to foreclose on that possibility, particularly as
the jurisprudence in respect of both
Article
41 and
Article
8 ECHR will
continue to develop and evolve, with the Irish courts being required to take
due account of the principles laid down in the judgments of the European Court
of Human Rights.
204. Accordingly, the decisions themselves do not bear out the Minister’s contention that he did in substance everything that is required by the judgments of the Court of Appeal, even if the sequence and form of those decisions is different from that court’s required approach. The Minister effectively addressed the claim under both provisions by reference to same metric: one test, one balancing exercise. In so doing, he erred in law.
Sequence of Decision
205. The Minister objects to the judgment of Hogan J insofar as it requires that the Applicants’ rights under the Constitution and the ECHR must be considered not only separately but also in a specific sequence, i.e. with the Constitution being considered first. The Minister says that this favours abstract form over factual assessment. He submits that both provisions will bear to differing degrees on the rights and interests of particular applicants; in some cases there will be no logical reason to start with the Constitution. Provided he has regard to the requirements of both, a decision should not be regarded as unlawful just because of the order in which it is set out.
206.
Hogan J, in prescribing this sequence, was
cognisant of the primacy of the Constitution as the key source of protection
for the fundamental rights concerned. This is apparent from the long title to
the 2003 Act, explaining one of its objects as being “to enable further effect
to be given, subject to the Constitution, to certain provisions of the
[ECHR]” (emphasis added). He also pointed to section 5(1
) of that Act and the principle
that a plaintiff must first pursue his constitutional remedies, and that it is
only where the same are inadequate or unavailable that the Convention issue
should be determined.
207.
He drew support for this point from the
judgment of Murray CJ for this Court in Carmody v. Minister for Justice and
Equality [2010] 1
I.R. 635. There the plaintiff brought a challenge to the
constitutional validity of section 2 of the Criminal Justice (Legal Aid) Act
1962 and also sought a declaration pursuant to section 5(
1
) of the 2003 Act
that the said section was incompatible with the obligations of the State under
the Convention. In the High Court, Laffoy J held, inter alia, that the
issue of the compatibility of section 2 of the 1962 with the Convention ought
to be determined before the constitutionality of that section was considered
and, further, that section 2 was neither unconstitutional nor inconsistent with
the obligations of the State under the Convention. The plaintiff appealed to
this Court. This Court held that an issue as to the constitutionality of a
statute should first of all be addressed by the court when the only other issue
is a claim for a declaration pursuant to section 5 of the 2003 Act; the
relevant paragraphs are set out at para. 7 of the judgment of Hogan J in the
Court of Appeal. From these paragraphs the learned judge considered it
necessarily implicit that where litigants make a claim that their
constitutional rights have been infringed, “it is this claim which should be
considered first by the Minister and it is only in the event that the
constitutional claim should fail that the Convention issue should then be
considered” (para. 8). Any other approach, in his view, detracts from the
primacy of the Constitution as the principal repository for the protection of
fundamental rights in this jurisdiction.
208. The Minister contends, however, that Carmody does not apply here. He submits that that decision was based on the differences in remedies under the Constitution and the 2003 Act. It is submitted that this Court’s concern was that considering a declaration of incompatibility first would lead to such declarations being issued without considering the constitutional validity of the Act. The Minister submits that these concerns do not arise in other contexts, such as here, where the remedy which the Constitution and Convention could provide the Applicants is the same: a decision to accede to their application. A decision to grant the application on Convention grounds would not undermine the validity or force of the Constitution, or leave a constitutionally suspect Act in force. The Minister submits that if the decision-maker finds in favour of an applicant on Convention grounds, there may be no reason to move on to a constitutional analysis, whereas if the applicant fails on Convention grounds then the decision-maker will be obliged to consider the Constitution also.
209.
I agree with the Minister that a decision should
not be regarded as unlawful solely because it deals with the Convention first. The
Minister must separately address the Article
41 and
Article
8 ECHR claims, but
no particular sequence is necessarily required. Provided a full and proper
assessment is carried out in accordance with each provision, I would not
consider such a decision infirm by virtue only of the order in which it is set
out. I do not read Carmody as mandating that the Constitution must
always be considered before the Convention in all contexts. Undoubtedly it is
the principal source for the protection of rights in Ireland, but if the
Convention provides the same remedy then there is nothing in principle to
prevent the Minister from addressing the Convention first, provided that the
Constitution is also properly considered and addressed. That is why the
decisions impugned in these proceedings cannot be saved. The infirmity is not
the sequence of the decisions but rather their substance: they do not
adequately address the constitutional aspect of the Applicants’ claims. Thus,
while the Minister can address the ECHR first, this is predicated on the
subsequent constitutional analysis being satisfactory, and not a mere
repetition of the Convention assessment. In my view it is not necessarily
correct to hold that the Minister erred in addressing the ECHR first:
the error was that he merely applied the ECHR analysis directly to the
Article
41 point, rather than treating them as distinct exercises with differing start
points and with the factors carrying different weight under each.
210. I would add, however, that while I do not consider that it is necessary to be prescriptive as to the order or sequence of the decision, it does seem to make common sense to start with the constitutional aspect. As noted, the protection of family rights is stronger under the Constitution, and so there seems to be a practical logic to starting with that assessment.
Discretion
211. Some final points must be dealt with. The Minister has argued that even if this Court would otherwise dismiss this appeal, the reliefs sought by the Applicants should be refused on a discretionary basis in light of the clear illegality and wrongdoing on the part of the Applicants in breaching the immigration rules of this State. It is pointed out that Ms Gorry evaded deportation for a number of years and later travelled back to Ireland without a visa notwithstanding an extant deportation order against her. Mr Gorry is said to have been involved in arranging this illegal return. As regards Mr ABM, it is pointed out that he, too, evaded deportation and that he and Ms BA have provided false and misleading information to the Minister in their dealings with him. The Court has been referred, in this regard, to decisions including AGAO v. Minister for Justice [2007] 2 IR 492, C(R) & M(GG) [Zimbabwe] v. The Refugee Applications Commissioner [2010] IEHC 490 and G.O. & ors v. Minister for Justice, Equality and Law Reform [2008] IEHC 190.
212.
Judicial review is, of course, a
discretionary remedy. I considered the exercise of such discretion to refuse to
grant relief in asylum cases in two recent judgments, one in P.N.S. and anor
v. The Minister for Justice [2020] IESC 11
(paras. 93-99) and the other in M.K.F.S.
and ors v. Minister for Justice [2020] IESC 48 (paras. 108-110). In the
former case, Humphreys J.in the High Court had exercised his discretion to
refuse relief by way of judicial review in light of the applicant’s “massive
abuse of the immigration system” both of Ireland and another EU Member State.
Although it was not necessary for this Court to reach a definitive view on the discretion
point raised in that case, I did note in the course of my judgment that while
the court has jurisdiction to dismiss an application for judicial review under
the International Protection Act 2015 for abusive conduct, the same should be
exercised sparingly and only where that conduct can be considered serious and
significant in the context of the system as a whole.
213. Having regard to the case law on the discretionary refusal of relief in cases of this nature, I would not be prepared to refuse the reliefs sought on this discretionary basis. This issue of unlawful behaviour is not addressed in any way in the judgments of the Court of Appeal. The purpose of granting leave to the Minister to appeal to this Court was to seek to clarify the points of constitutional principle, being matters of general public importance likely to affect a significant number of cases and citizens. It is inconsistent with the underlying purpose of this further appeal to seek to determine it on such narrow, case-specific grounds. Furthermore, the appeals in both cases are moot given that the Gorrys are separated and no longer wish to reside together in the State, and the circumstances of Mr ABM and Ms BA have moved on to the extent that a new application for revocation will be required. I would not, therefore, at this stage, refuse the Applicants the relief sought on this discretionary basis.
214. Moreover, if pushed, I would be inclined to agree with Mac Eochaidh J, who addressed this point in his judgment in Gorry. I do not consider that the conduct in question, viewed against the totality of the circumstances of the case, should be such as to disentitle those Applicants to relief. Humphreys J did not express a view on this point in ABM in light of his conclusions on the substance of that application for judicial review; again, however, I do not consider that this immigration history crosses whatever notional threshold exists for refusing the application for judicial review, certainly not at this late stage of the proceedings. These breaches of immigration law may be something which the Minister takes into account in considering any fresh application, but they are simply one part of the overall evaluative mix. Finally, in the context of the Gorry case, it should be noted that Mac Eochaidh J also upheld their claim on irrationality grounds (see para. 30, supra); that finding was not addressed in any substantive way in the judgments of the Court of Appeal and was not debated before this Court so I will not express any decided view on the point, save to say that I see no obvious error with this conclusion and this further militates against refusing relief on a discretionary basis.
The Judgment of O’Donnell J
215. At this point and with obvious respect, may I refer again in a little more detail to the judgment of O’Donnell J, which I have had the benefit of reading before delivery of this judgment. While we have both reached the conclusion that the Minister erred, in the decisions under review, in conflating the constitutional assessment and the ECHR assessment (particularly by ostensibly making the former subsidiary to the latter), clearly there is a difference in approach as to how the Minister should in practice conduct his analysis of the constitutional issues arising. Whilst I immediately acknowledge the quality of this judgment, it is self-evident that my assessment is different: therefore, as there remains some distance between the two approaches it is appropriate that I should offer some thoughts on the judgment of my colleague.
216. O’Donnell J, as part of his approach which would view the issue through the prism of the lawfulness of the ministerial decisions rather than one of constitutional rights, states at paragraph 17 that it is “strange to speak of individual rights … being limited (and, in truth, overridden) by matters as general as those identified such as ‘the common good’ and ‘the integrity of the immigration process’”. As stated by the learned judge, individual rights have value precisely because they are not subordinated to the interests of others. Moreover, in his view it is unusual for such rights to be overridden by such vague and general considerations.
217.
I must respectfully disagree with the
assessment that it is strange to see individual rights being restricted, or
possibly indeed trumped, by general considerations in this manner. One
frequently sees individual rights being balanced against general considerations
such as morality, citizens’ welfare, public order, the prevention of crime etc.
It is not clear to me what is so unusual in recognising such rights but then
balancing them against the preservation of the immigration system. To take only
family rights, whether one sources them in Article
8(
1
) ECHR,
Articles
7 and 9
of the Charter of Fundamental Rights of the European Union,
Article
10 of the International
Covenant on Economic, Social and Cultural Rights or
Articles
12 and 16 of the
Universal Declaration of Human Rights, one will find a corresponding provision
permitting of the interference with or restriction of such rights on just such
general bases (see
Article
8(2) ECHR,
Article
52(
1
) CFREU,
Article
4 ICESCR and
Article
29(2) UDHR, respectively). While I have pointed out, in this judgment,
the particularly high level of protection which the Constitution affords to
family rights, I do not see anything intrinsic in the nature of such rights
which would render them immune or impervious to limitation in this same way.
Fundamentally, the fact that such rights must be subject to restriction on this
basis (and on this there can be no doubt: no one, plausibly, could argue that
these rights are absolute) is not, in my view, a sound basis to contend therefore
that they should not be conceived of as individual rights at all.
218. What I have sought to do, by my judgment, is to identify the source and status of the rights and interests engaged on both sides. The exercise should, in my view, be conceived as a balancing exercise involving the engagement of a right to decide to cohabit, although I appreciate that O’Donnell J does not feel that any such constitutional right is at play and conceptualises the task for the court on review as being concerned with the lawfulness of the ministerial decision to determine whether it can be said to have failed to recognise the relationship or to respect the institution of Marriage because of its treatment of the couple concerned, rather than any failure to respect a constitutional right. I agree that in most cases the ultimate outcome of the Minister’s decision is unlikely to differ depending on which test is used, or indeed how it is characterised, but that aside, the route by which such outcome is reached is vitally important in its own right. This is because, first, the route one chooses may be determinative of the outcome in the rare “fringe” cases which could go either way and, more fundamentally, because there is a high constitutional value to an administrative decision-maker utilising the correct analysis even if there are multiple other analyses which may potentially lead him to the same conclusion. The result is important, but so too is the process.
219. I wish to emphasise that nothing in my judgment should be taken as creating any presumption in favour of the applicants in a case such as this, or of creating a default position where certain family rights must be overcome before deportation could be ordered. Rather I think that the rights and interests on both sides must be appropriately weighed and balanced. It certainly should not be thought that the family rights of the applicants, even so characterised, will automatically, or even usually, prevail. Indeed, I do not disagree with the general statement that a non-citizen does not have a right to reside in Ireland and does not acquire such a right by marriage to an Irish citizen. However, I do not see why it should be that the analysis which I propose would lead to any decisions “which might be considered damaging to the State’s legitimate interests”, as stated by O’Donnell J. If these interests are sufficiently weighty, they should prevail on any approach, for I do not suggest that the Minister would be constrained to reach a conclusion which is clearly contrary to these interests.
220. For these reasons, I do not consider that my judgment in any way suggests that a family decision could somehow “control” the decision as to who should be permitted to enter, or required to leave, the State (see para. 18 of the judgment of O’Donnell J). I also respectfully disagree with the learned judge that my approach will generate litigation, certainly not beyond the level which already exists in this arena. O’Donnell J states that on my approach “the balance deemed correct can only be determined finally by a court”: this assumes that all cases are the subject matter of judicial review: whilst a great number are, it is not true of every such case. In any event, I fail to see how that is any different in practice from the prevailing situation now.
221. Finally, I note that O’Donnell J considers my approach unsatisfactory insofar as it “provides little guidance as to the weight to be afforded to the respective considerations”. While mine undoubtedly is an approach which leaves a large element of discretion to the decision-maker, I do not consider that it would be appropriate for the Court to assign, in the abstract, specific weight to each of the various considerations which could feed into the test, each liable to arise in a multiplicity of different guises and circumstances. What weight should be assigned surely will vary from case to case; the potential circumstances are endless. Decision-makers at all levels, everywhere, frequently need to balance rights and interests in all manner of fora and across a whole range of areas of activity; they do not need to be told specifically by a court how much weight each component factor must have, so that the evaluative exercise becomes essentially numerical, although, in fairness, I do not for a moment suggest that that is what O’Donnell J means by his commentary.
222. Perhaps more fundamentally, and with the greatest of respect, it might be observed that the approach of O’Donnell J similarly is light on detail as to how precisely the Minister is to make the required decision - and for the reasons just laid out, I do not consider that that is necessarily a criticism. Whether one speaks in terms of a rights-based balancing exercise or a review of the lawfulness of ministerial decision-making to determine whether the State failed to recognise the relationship or to respect the institution of Marriage, either way a court on review is going to have to engage to some degree in an assessment of the manner in which the Minister considered and weighed the various factors feeding into his decision.
223.
On the issue of rights, and specifically
whether a right to cohabit with one’s spouse comes within the rubric of the
“constitution and authority” of the Family and is, therefore, one of the
“inalienable and imprescriptible rights” referred to in Article
41.
1
.
1
°,
my view diverges from that of O’Donnell J. As he states in his judgment, “I
doubt that the Constitution is to be interpreted as creating in
Article
41 some
unspecified super-rights to be discerned by future generations of judges”
(para. 15; see also para. 46 of his judgment). While that may be so, it should
be observed that on one view much of the jurisprudence on
Article
40.3 of the
Constitution and the rights derived therefrom (formerly “unenumerated rights”:
see the illuminating comments of Clarke C.J. in his recent judgment for this
Court in Friends of the Irish Environment v. The Government of Ireland [2020] IESC 49) owes its origin to something akin to this exercise. To be sure, rights
have been derived by reference to other constitutional provisions and the
Constitution as a whole, including the amendments thereto, its preamble etc.
rather than by reference to subjective personal notions of what is good, moral,
right or humane. There are also, of course, significant textual differences
between the sub-paragraphs of
Article
40.3, on the one hand, and those of
Article
41.
1
, on the other, which could legitimately be said to militate
against any such approach to the rights referred to in
Article
41. Nonetheless,
however, I do not consider that it is to take an overly
expansive view of
Articles
41.
1
.
1
° and 41.
1
.2° to consider that a right to
cohabit with one’s spouse is protected therein. All appear to agree that the
rights referred to in 41.
1
.
1
° are those associated with the State’s duty to
protect the constitution and authority of the Family, and it seems to me that a
right to cohabit with one’s spouse derives naturally from that protection.
224. Let me reiterate what I have previously said about the judgment of O’Donnell J, even if I do not agree with the approach proposed therein. In offering these clarificatory comments, my intention is to show that the consequences which O’Donnell J fears, may flow from my judgment will not in fact follow, unless it is significantly overread: certainly, I have not recalibrated the scales so that there is a presumption in favour of the applicants in cases such as these. Provided that that is understood, I am satisfied that the approach which I have suggested is one which properly identifies and sources the relevant rights and interests, thereby allowing the Minister to carry out the requisite balancing exercise. This continues to apply even when the constitutional foundation of the rights of the applicants is recognised.
Conclusion
225. At paragraph 105 of her judgment, Finlay Geoghegan J concluded as follows:
“(1
) The Minister did not consider the constitutional rights of the
applicants, Mr. and Mrs. Gorry, in accordance with law.
(2) Mr. Gorry as an Irish citizen does not have an automatic right pursuant to the Constitution to cohabit with his non-national spouse in Ireland. Such a constitutional right would appear to be contrary to the inherent power of the State to control immigration subject to international obligations. This is so even if one considers that any such constitutional right is a prima facie right or is not an absolute right and may be limited.
(3) However Mr. and Mrs. Gorry, as a lawfully married couple and a
family within the meaning of Article
41, and Mr. Gorry as an Irish citizen,
have constitutionally protected rights to have the Minister consider and decide
their application with due regard to:
(i) the guarantee given by the State in Article
41.
1
.2 to protect
the family in its constitution and authority;
(ii) a recognition that Mr. and Mrs. Gorry are a family, a
fundamental unit group of our society possessing inalienable and
imprescriptible rights which rights include a right to cohabit which is also an
individual right of the citizen spouse which the State must, as far as
practicable, defend and vindicate (Article
41.
1
and
Article
40.3.
1
)
(iii) a recognition that the decision that the family should live in
Ireland is a decision which they have a right to take and which the State has
guaranteed in Article
41.
1
to protect; and
(iv) a recognition of the right of the Irish citizen to live at all
times in Ireland as part of what Article
2 refers to as his ‘birth right … to
be part of the Irish Nation’ and the absence of any right of the State (absent
international obligations which do not apply) to limit that right.
(4) The Constitution places corresponding obligations on the Minister to take the decision as to whether or not to permit the non-national spouse of an Irish citizen reside in Ireland with due regard to each of the above constitutional rights of the applicants. However, the Minister, in taking the decision, may also take into account other relevant considerations in accordance with the State's interests in the common good.
(5) The ‘insurmountable obstacles’ test set out by the European
Court of Human Rights remains applicable to a consideration by the Minister (if
necessary) of the application pursuant to his obligations under s. 3 of the
European Convention on Human Rights Act 2003 having regard to Article
8 of the
European Convention on Human Rights relating to deportation of the non-national
spouse of an Irish citizen.”
I express my complete agreement with these principles.
226.
As the Court of Appeal made clear in its
judgments, and as I have been at pains to emphasise in this judgment, nothing
in the approach which the Minister must adopt requires him to give effect to
the decision of the married couple to live in Ireland. The Minister does not
have to “facilitate” that decision; he does not have to “promote” it; he does
not have to give it some form of “presumptive priority”. He does, however, have
to identify, consider and properly weigh the couple’s constitutional rights and
their Convention rights against the important countervailing interests on the
State side when conducting the balancing exercise required of him. What is
required is a case-by-case analysis - the outcome will hinge on the particular
facts and circumstances of a given case. Where the Minister erred in the
decisions challenged in these proceedings is that he did not elevate the
constitutional rights of the Applicants to the position that he should have.
They are the starting point for the balancing exercise required and they must
be afforded considerable weight. This is not to say that, after conducting the
evaluation called for, he may not nonetheless conclude in respect of a given
application that the rights of the State must prevail. In so doing, however, he
must pay due regard to, and afford adequate weight to, the constitutional
rights of the family under Article 41. He did not do so in these decisions.
227. I would dismiss the Minister’s appeals in both cases. The orders of certiorari granted by the High Court in Gorry and by the Court of Appeal in ABM will be upheld. In light of the fact that both matters are moot, the matters should not be remitted to the Minister for a further decision.
Result: Dismiss Appeal
Overall Result: Dismiss appeal - Mr Justice MacMenamin, Ms Justice Dunne and Mr Justice Charleton concurr with Mr Justice O'Donnell's reasoning.