A.B.M. and B.A. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 27 October 2017
• Neutral Citation: [2017] IECA 280
• Date: 27 October 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 280 [2017 No. 31]

[2017] IECA 280

THE COURT OF APPEAL

Finlay Geoghegan J.

Finlay Geoghegan J.

Irvine J.

Hogan J.

Neutral Citation Number: [2017] IECA 280

[2017 No. 31]

BETWEEN

A.B.M.

and

B.A.

APPLICANTS/APPELLANTS

- AND -

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT/

Deportation – Order of certiorari – Points of law – Appellants seeking an order of certiorari of a decision of the respondent – Whether deportation order should be revoked

Facts: The appellants appealed to the Court of Appeal from the order of the High Court (Humphreys J) made on 16th December, 2016 refusing the application for an order of certiorari of a decision of the respondent, the Minister for Justice and Equality, of 13th July, 2015 which refused to revoke the deportation order made in respect of the first appellant. The High Court 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; (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).

Held by Finlay Geoghegan J that the consideration given by the Minister to the constitutional rights of the applicants was not in accordance with law; it was not consistent with the obligations imposed on the State by the Constitution. Finlay Geoghegan J held that as the assessment made by the Minister of the application to revoke the deportation order was not in accordance with law having regard to the constitutional rights of the appellants, which was fundamental to the proper consideration of the application that they were entitled to an order of certiorari of the decision of the Minister refusing to revoke the deportation order of the first appellant. Finlay Geoghegan J held that the application which gave rise to the decision to be quashed should not be remitted to the Minister for a further decision as events had moved on.

Finlay Geoghegan J held that she would grant an order of certiorari of the decision of the Minister of 13th July, 2015. She held that there would be an order that the appellants may make a further application to the Minister for revocation of the deportation order made on 18th June, 2008 and for a visa for the first appellant to enter and be in Ireland which would fall to be considered in accordance with law and on all current facts relating to the family comprised by the appellants and their child who was born after the decision of the Minister the subject of the appeal and the relevant State interests.

Appeal allowed.

JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 27th day of October 2017

1 This is an appeal from the order of the High Court (Humphreys J.) made on 16th December, 2016 refusing the application for an order of certiorari of a decision of the Minister of 13th July, 2015 which refused to revoke the deportation order made in respect of A.B.M. The order was made for the reasons set out in a written judgment of 29th July, 2016: see A.B.M & B.A. v. Minister for Justice and Equality [2016] IEHC 469.

2 The High Court 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).

3 This appeal was heard at the same time as the appeal in Gorry v. The Minister for Justice and Equality in which judgment is also being delivered today. In my judgment in Gorry I have set out in greater detail the background facts to the application for certiorari in these proceedings and considered the judgment of the High Court judge. This judgment should be read in conjunction with the judgment being delivered today in Gorry.

4 It is sufficient for the purposes of this judgment to state briefly the essential facts. The second named applicant, B.A., who was born in Nigeria, became an Irish citizen in 2013. She had originally come to Ireland in September, 2000, whereupon she applied for asylum. That application was refused, but she was permitted to remain in the jurisdiction and she ultimately became an Irish citizen in 2013.

5 The first applicant, Mr. A.B.M. applied for asylum in Ireland in September, 2006 claiming he had recently entered Ireland having left Nigeria in 1999 for Italy via Togo. That and all further applications were refused and a deportation order made in respect of him on 18th June, 2008. That was not challenged. Nevertheless, he subsequently failed to present himself to Garda National Immigration Bureau in July, 2008 and was classed as an evader. The applicants, however, were married in Ireland in a civil ceremony on 9th February, 2015. For the purposes of the application to the Minister under review (and in the judicial review proceedings) they were accepted as a couple, one of whom was an Irish citizen, lawfully married to each other and hence a family within the meaning of Art. 41 of the Constitution.

6 The decision of the Minister and the assessment made on his behalf is set out in the judgment in Gorry. It is sufficient for present purposes to say that the assessment was first made by reference to Art. 8 of the European Convention of Human Rights (ECHR) and then in relation to 'marriage rights under the Constitution'. In considering the latter the decision records that B.A. is an Irish citizen and that A.B.M. married her in February, 2015 and that it was accepted that the couple constitute a family within the meaning of Article 41 of the Constitution. The decision then states:

'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 Art. 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 Art. 8 [ECHR] in the 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. The...