Consolidating the Approach to Article 41.4: Gorry & Anor v Minister for Justice and Equality

• Author: Cillian Bracken
• Position: BCL (German) (UCC), LLM (LSE), Barrister-at-Law candidate, the Honorable Society of King's Inns
• Pages: 51-65

© 2019 Cillian Bracken and Dublin University Law Society

CONSOLIDATING THE APPROACH TO ARTICLE

41.1: GORRY & ANOR V MINISTER FOR JUSTICE

AND EQUALITY

CILLIAN BRACKEN

Introduction

Article 41.1 of the Constitution recognises the Family as the ‘natural primary

and fundamental unit group of Society’, as a ‘moral institution possessing

inalienable and imprescriptible rights, antecedent and superior to all positive

law’, which the State guarantees to protect ‘in its constitution and authority,

as the necessary basis of social order and as indispensable to the welfare of

the Nation and the State’.

1

It has been referred to as among the most

innovatory in the entire Constitution, drawing on papal encyclicals, Catholic

teaching and continental constitutionalism.

2

Whilst its constitutional

evolution has demonstrated this innovation by touching on a panoply of

subjects, from tax to adoption, its impact on the area of immigration law is

relatively nascent. The recent Court of Appeal decision in Gorry v Minister

for Justice and Equality

3

illustrates the difficulties that the Irish courts

continue to grapple with in their attempts to conceptualise a coherent

approach to Article 41.1. This case further highlights problems in

understanding the relationship between Article 41.1 and Article 8 of the

European Convention on Human Rights, the right to respect for one's private

and family life.

4

This article will compare the decision in Gorry to the prior approach

of the courts in relation to Article 41.1 in order to demonstrate the extent to

which the judgment has muddled the interaction between Article 8 and

Article 41.1. This article will argue that Gorry is not only inconsistent with

the approach taken by the Supreme Court in previous judgments, but also

that it creates considerable practical difficulties: it creates insurmountable

 BCL (German) (UCC), LLM (LSE), Barrister-at-Law candidate, the Honorable Society of

King’s Inns. The author wishes to thank Oonagh O’Sullivan BL and Tim Chadwick for their

invaluable help and insight in the writing of this article.

1

Article 41.1.

2

Gerard Hogan, Gerry Whyte, David Kenny and Rachael Walsh, Kelly: The Irish Constitution

(5th edn, Bloomsbury Professional 2018) para 7.7.01.

3

Gorry v Minister for Justice and Equality [2017] IECA 282 (‘Gorry’).

4

Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention on Human Rights, as amended) art 8.