Cirpaci (née McCormack) and Cirpaci v The Minister for Justice, Equality & Law Reform

• Jurisdiction: Ireland
• Judge: MR JUSTICE FENNELLY
• Judgment Date: 20 June 2005
• Neutral Citation: [2005] IESC 42
• Date: 20 June 2005
• Court: Supreme Court
• Docket Number: [S.C. No.

CIRPACI (ORSE MCCORMACK) v MIN FOR JUSTICE

BETWEEN

TRACY CIRPACI (née McCORMACK) and AUREL CIRPACI

Applicants/Appellants

and

THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM

Respondent

[2005] IESC 42

Hardiman J.

Geoghegan J.

Fennelly J.

McCracken J.

Kearns J.

78/05

THE SUPREME COURT

CONSTITUTIONAL LAW

Family rights

Non national - Personal rights - Whether non national married to Irish citizen automatically entitled to reside in State - Whether length of time married couple resided together as family unit legitimate consideration when reviewing deportation order - Whether precarious immigration status of party to marriage relevant consideration - Abdulaziz v UK (1985) 7 EHRR 471; Gul v Switzerland (1996) EHRR 93; R (Mahmood) v Home Secretary [2001] 1 WLR 840 considered - Constitution of Ireland 1937, Articles 40.1, 40.3.1, 41 and 42 - European Convention of Human Rights 1950, Article 8 - Applicants' appeal dismissed -C (T) v Minister for Justice

IMMIGRATION:

Deportation

Revocation - Legitimate considerations - Married couple - Appreciable period of co-habitation post marriage - Whether legitimate consideration in assessment of revocation - F (P) v Minister for Justice [2005] IEHC 9 (Unrep, Ryan J, 26/1/2005) considered - Immigration Act 1999 (No 22), s 3(11)

A Rumanian national was deported from Ireland and three months later married an Irish girl in Rumania. He then sought an order of certiorari to revoke the deportation order. Quirke J refused the application. The application had sought and had been refused asylum in other jurisdictions before coming to Ireland. His application in Ireland had been processed in the normal way and was denied. Having been duly informed of this decision he was required to present himself at a Garda Station but did not show up and subsequently he was arrested and then deported. Subsequent to his marriage to the Irish national he sought a visa to return to Ireland. It was suspected by the authorities that it was a marriage of convenience.

Held by the Supreme Court (Fennell J: Hardiman; Geoghegan; McCracken and Kearns JJ concurring) in dismissing the appeal and affirming the order of Quirke J:

1. The minister gave due weight to all relevant information before him.

2. It had not been shown that the minister had acted in pursuit of a fixed or inflexible policy and that his decision was unreasonable or disproportionate.

3. Given the particular facts of this case, the minister's decision fell well within the margin of appreciation allowed to Member States by the European Convention.

4. This case does not merit reconsideration of the standard of unreasonableness normally required by the well established jurisprudence of this Court.

Reporter: BDD

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

CONSTITUTION ART 41

ONSTITUTION ART 42

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

FITZPATRICK v MIN FOR JUSTICE UNREP HIGH COURT RYAN 26.1.2005

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

O'KEEFFE v AN BORD PLEANALA 1993 1 IR 39 1992 ILRM 237

REGINA v LORD SAVILLE OF NEWDIGATE & ORS 2001 1 WLR 1855

OSHEKU v IRELAND AG & MIN FOR JUSTICE 1986 IR 733 1987 ILRM 330

POK SUN SHUM v IRELAND & AG 1986 ILRM 593

LAURENTIU v MIN JUSTICE 1999 4 IR 42 2000 1 ILRM 1

OSAYANDE & LOBE v MIN FOR JUSTICE 2003 1 IR 1

THE QUEEN EX PARTE MAHMOOD v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2001

UKHRR 307 2001 1 WLR 840

IMMIGRATION ACT 1999 S3(11)

ABDULAZIZ v UK 1985 7 EHRR 471

GUL v SWITZERLAND 1996 EHRR 93

1 JUDGMENT of MR JUSTICE FENNELLY delivered on the 20th day of June, 2005.

2 The legitimate interest of the State in the control of immigration frequently conflicts with claims of migrants based on family reunification. This has been recognised for more than twenty years by the European Court of Human Rights. In the present case, a marriage took place in Romania between an Irish citizen ("the wife") and a Romanian citizen ("the husband") just over three months after the deportation of the husband from the State. The High Court (Quirke J) refused the appellants" claim for an order of certiorariof the Minister's refusal to revoke his deportation order so as to enable the parties to live together in the State with the children of the wife from earlier relationships.

3 The Appellant's attack is upon a decision of the Minister dated 31st March 2003, communicated by letter dated 1st April 2003.

4 The husband is a Romanian of Roma extraction. He arrived in this jurisdiction on 30th August 1999 and applied for asylum. In the course of that application, both in his questionnaire and at interview, he stated that he was married to a Romanian, that he had four children and that his wife and family were in Romania.

5 His application for asylum was refused by the Refugee Applications Commissioner on 8th May 2001. This decision was confirmed on appeal by the Refugee Appeals Tribunal on 22nd April 2002. The husband's Romanian wife arrived in the State on 12th April 2002. She named the husband (the second-named Appellant) as her husband. On 26th June 2002, solicitors for the husband wrote informing the Minister, as he had already informed the Refugee Appeals Tribunal on 25th May 2001, that his Romanian wife had divorced him.

6 In 1992, the husband had unsuccessfully claimed asylum in Germany together with his Romanian wife and two of their children. He had also sought asylum in France in 1998. That application had also been refused and the husband was returned to Romania. In 2002, his Romanian wife consented to voluntary repatriation to Romania from the State.

7 A letter of 12th August 2002 addressed to the husband and to his solicitors required him to attend at Dundalk Garda Station on 16th August 2002. The letter was returned marked: "not called for."He failed to attend as required and was classed as having avoided deportation. He was arrested at the wife's home (she was not then married to him) on foot of a deportation order and was deported to Romania on 16th September 2002.

8 The above material was the material which was before the Minister, or to be more precise, before Mr Joseph Mortell, Higher Executive Officer in Immigration Operations in the Department of Justice, Equality and Law Reform (hereinafter "the Department"), when he made the impugned decision on 31st March 2003. I treat this, for the purposes of the appeal, as being the decision of the Minister.

9 That decision came to be made in the following circumstances. On 30th January 2003, the marriage between the Appellants took place at Covasint, Romania. On the following day, the Appellants presented themselves at the Irish Embassy in Bucharest and applied for a "D-Reside Visa" for the husband to travel to the State as the spouse of an Irish national. However, as there was in force an order for his deportation, he was advised that he could not obtain such a visa. Accordingly, solicitors for the Appellants in Ireland wrote to the Department on 17th February 2003:

"We are instructed by our above named clients to make further submissions in support of Mr Cirpaci's application for a D-Reside visa and to formally apply for the necessary revocation of the deportation order issued in respect of Mr Cirpaci.

You will be aware that Mr Cirpaci's circumstances have changed through his marriage to his partner of three years, Mrs Tracy McCormack, an Irish national.

Our clients presented to the Irish Consulate in Bucharest on 31st January 2003 and submitted Mr Cirpaci's visa application as well as their marriage certificate, a copy of Mrs McCormack's passport, Mr Cirpaci's passport, confirmation of accommodation in Ireland, confirmation of Mrs McCormack's employment as well as letters from family and friends confirming their relationship prior to Mr Cirpaci's departure in September 2002."

10 In spite of the terms of the second paragraph of that letter, it seems clear that, other than that letter itself, no information had, prior to that date, been submitted to the Department suggesting a "change " in the husband's circumstances. As already stated, he had said that his Romanian wife had divorced him in Romania, but no prior information had been conveyed concerning a relationship between him and the first-named Appellant, who was now his wife.

11 However, in support of the application made on 17th February 2003, a number of documents were submitted including a "letter from wife re her relationship with applicant."

12 Ms Lisa O'Connor of the Immigration and Citizenship Division of the Department prepared a memorandum dated 27th March 2003, based on the history outlined above, and concluded with a recommendation in the following terms:

"From the information to hand, there are indications that the marriage in question may have been entered into solely to facilitate re-entry into the State. Furthermore, the couple have not been residing together as part of a subsisting family unit since their marriage, as Ms McCormack has returned to the State in order to care for her three children. I would therefore recommend refusal of this application for revocation of the Deportation Order in place against Mr Cirpaci."

13 On 31st March 2003, Mr Mortell wrote the word "Agreed" on the memorandum and initialled it. It will be noted that, while the first sentence of Ms. O'Connor's recommendation casts doubts on the genuineness of the marriage, the second lays emphasis on the lack of cohabitation of the parties to the marriage, in light of the wife's return to the State. The decision to refuse revocation of the deportation order was communicated to the solicitors by letter of 1st April 2003, signed by Ms. O'Connor. The letter gives one reason only...