A.B.M v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IEHC 489
• Court: High Court
• Docket Number: [2015 No. 449 J.R.]
• Date: 29 July 2016

[2016] IEHC 489

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2015 No. 449 J.R.]

BETWEEN

A.B.M.

AND

B.A.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Asylum, Immigration & Nationality – Deportation – Art.41 of the Constitution – Art.8 of the European Convention on Human Rights – Illegal immigrant – Marriage – Assumption of risk of separation – Insurmountable obstacles – Non-EEA family reunification policy documents.

Facts: Following the refusal of revocation of deportation order by the respondent, the applicants filed for judicial review against the decision of the respondent. The applicants contended that the order of the respondent of deportation would be unlawful as the applicants had prima facie right to reside in the State by virtue of art. 41 of the Constitution. The applicants further contended that the respondent erred in deporting the first named applicant as that amounted to forcible separation by the State. The applicants claimed protection under the non-EEA family reunification policy document.

Mr. Justice Richard Humphreys dismissed the application of the applicants. The Court held that there existed no prima facie right to the couples to reside at a place of their choice where one of the persons happened to be an illegal immigrant. The Court observed that the conversion of the illegal status into a prima facie legal status, merely by the convenience of getting married to a person who had an Irish citizenship, would destroy the very purpose of immigration control system. The Court stated that the marriage of applicants conferred no right on the applicants to resist deportation under art. 41 of the Constitution. The Court further observed that it would be incumbent on the respondent to put into balance the rights of the applicants under art. 41 of the Constitution or art. 8 of the ECHR. The Court held that the decision of deportation, on ground that there had been no insurmountable obstacles to the applicants would be valid as the option to relocate to another country existed. The Court observed that the first named applicant had no protection under the non-EEA family reunification policy documents as the applicant had not complied with the immigration system of the State.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 29th day of July, 2016

1 In August, 1999, the first named applicant claims he left Nigeria for Italy, via Togo. He left children behind in Nigeria at that point.

2 On 21st September, 2000, the second named applicant applied for asylum in Ireland, having come from Nigeria where she left children of her first marriage behind in the care of her sister.

3 On 16th January, 2001, the second named applicant obtained a divorce from her first husband.

4 On 28th August, 2002, the Refugee Applications Commissioner refused to recommend the asylum claim of the second named applicant.

5 On 13th September, 2006, the first named applicant, having arrived in the State, applied for asylum.

6 On 21st October, 2006 (notably, only a month after the applicants were both located in the State), both applicants entered into what is referred to as a 'religious marriage', which is said not to have been legally binding. The second named applicant was unlawfully present in the State at that time. The first named applicant's position was precarious in that he was only present on the basis of an asylum claim.

7 On 8th March, 2007, the Refugee Applications Commissioner recommended refusal of the first named applicant's asylum claim.

8 On 26th June, 2007, the second named applicant was given permission to remain in the State.

9 The first named applicant appealed the refusal of asylum to the Refugee Appeals Tribunal, but this was also refused on 7th September, 2007.

10 On 31st October, 2007, the first named applicant submitted an application for subsidiary protection and made representations under s. 3 of the Immigration Act 1999. The application for subsidiary protection was refused on 8th April, 2008.

11 A deportation order was made on 18th June, 2008, and notified to the first named applicant by letter, dated 24th June, 2008. He was required to present himself to the Garda National Immigration Bureau (G.N.I.B.) on 15th July, 2008. He failed to do so and thereafter became an evader for a lengthy period up to July, 2015.

12 In August, 2013, the second named applicant became an Irish citizen.

13 In December, 2013, the Minister adopted a policy document regarding family reunification for non-EEA nationals.

14 On 9th January, 2014, the first named applicant, while continuing to evade the G.N.I.B., requested the Minister revoke the deportation order under s. 3 (11) of the 1999 Act.

15 On 9th February, 2015, the parties underwent a civil marriage ceremony.

16 On 13th July, 2015, a submission was prepared on behalf of the Minister recommending refusal of the s. 3(11) application. On this same date, the Minister undertook not to deport the first named applicant until the consideration of the application under s. 3(11) had taken place.

17 On 17th July, 2015, the Minister was informed that the second named applicant was pregnant (at that point, she would have been around four months pregnant).

18 The formal decision refusing the s. 3(11) application was issued on 20th July, 2015. The Minister also informed the applicants that the undertaking made on 13th July, 2015 had expired and the second named applicant was requested to attend before G.N.I.B. on 28th July, 2015.

19 The present proceedings were commenced and leave was granted on 27th July, 2015.

20 On 4th August, 2015, Stewart J. refused to grant an injunction restraining deportation, pending the determination of the proceedings. The applicant was then deported on 22nd September, 2015.

21 In December, 2015, the child of the applicants was born.

Did the Minister fail to recognise the nature and strength of the applicants' rights under Article 41?

22 In a very able submission on behalf of the applicants, Mr. Colm O'Dywer S.C. (with Mr. Ian Whelan B.L.), for the applicants, submits that the decision is invalid in law because the Minister's proportionality examination was flawed due to a failure to recognise the nature and strength of the rights of the applicants under Article 41 of the Constitution.

23 He places particular reliance on the decision in Gorry v. Minister for Justice & Equality [2014] IEHC 29 (Unreported, High Court, 30th January, 2014), where, at para. 44, Mac Eochaidh J. says that ' [t]he 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'.

24 Mr. O'Dwyer's argument is that this prima facie right is acknowledged in Gorry; the Minister's proportionality analysis fails to begin from a recognition of that prima facie right and, accordingly, the analysis is flawed.

25 First of all it is worth emphasising that the point made in Gorry was substantially qualified in the later case of S.A. v. Minister for Justice and Equality (No. 2) [2015] IEHC 226 (Unreported, High Court, Mac Eochaidh J., 14th April, 2015), where he said at para. 13 that it was 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.

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: see Jeunesse v. Netherlands (Application no. 12738/10, Grand Chamber of the European Court of Human Rights, 3rd October, 2014) at para. 103. The State, in such situations has to be afforded a certain margin of appreciation: see Jeunesse, para. 106; Tuquabo-Tekle v. Netherlands (Application no. 60665/00, European Court of Human Rights, 1st December, 2005) at para. 42; and also Ahmut v. Netherlands (Application no. 21702/93, European Court of Human Rights, 28th November 1996), at para. 63. 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.

27 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.

28 Voluntary assumption of risk is the key element here. Parties who choose to either get married or become involved in equivalent domestic relationships must be taken to do so in the knowledge of whatever factual and legal obstacles might exist to their living together. Differing nationalities, lack of legal status, liability to imprisonment, extradition, or European Arrest Warrant proceedings, financial difficulties which curtail the practical options for cohabitation, and many other issues are matters that such parties must be taken to have had regard to.

29 In his decision in X.A. (a minor) v. Minister for Justice, Equality & Law Reform [2011] IEHC 397 (Unreported, High Court, 25th October, 2011), Hogan J. speaks sternly about the need for the courts to vindicate rights where couples are being forcibly separated by the State (followed in his later judgment in E.A. v. Minister for Justice and Equality [2012] IEHC 371 (Unreported, High Court, 7th September, 2012))

30 However, it is not the State that forcibly separates a couple where one of the parties, at all material times, had a precarious...