Gorry and Another v Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Colm Mac Eochaidh
• Judgment Date: 30 January 2014
• Neutral Citation: [2014] IEHC 29,[2013] IEHC 29
• Court: High Court
• Date: 30 January 2014

[2014] IEHC 29

THE HIGH COURT

[No. 859 J.R./2012]

Gorry v Min for Justice

JUDICIAL REVIEW

BETWEEN

IFEYINWA GORRY AND JOSEPH GORRY

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

E B KOSOVO (FC) v SECRETARY OF STATE FOR THE HOME DEPT 2008 4 AER 28 2009 AC 1159 2008 3 WLR 178 2008 NLJR 968 2008 UKHL 41

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

ABDULAZIZ v UNITED KINGDOM 1985 7 EHRR 47

R (MAHMOOD) v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2001 1 WLR 840 2001 1 FLR 756 2001 IMM AR 229 2000 AER (D) 2191

V W (UGANDA) & A B (SOMALIA) v SECRETARY OF STATE FOR THE HOME DEPT 2009 IMM AR 436 2009 INLR 295 2009 EWCA CIV 5

ALLI (A MINOR) v MIN FOR JUSTICE 2010 4 IR 45 2009/3/608 2009 IEHC 595

CONSTIUTION ART 41

A (A) v MIN FOR JUSTICE & ORS 2005 4 IR 564 2005/1/161 2005 IEHC 393

FITZPATRICK v MIN FOR JUSTICE UNREP RYAN 26.1.2005 2005/25/5246 2005 IEHC 9

CIRPACI v MIN FOR JUSTICE 2005 4 IR 109 2005 2 ILRM 547 2005/10/2112 2005 IESC 42

S (P) & E (B) v MIN FOR JUSTICE UNREP HOGAN 23.3.2011 2011/45/12794 2011 IEHC 92

SHUM v IRELAND & AG 1986 ILRM 593 1986/4/1484

MEADOWS v MIN FOR JUSTICE 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

STATE (KEEGAN) v THE STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1986/6/861

SMITH v MIN FOR JUSTICE & ORS UNREP SUPREME 1.2.2013 2013 IESC 4

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 7

Asylum & Immigration law - Constitutional law - Deportation Order - Nigeria - Balancing - Irish husband - Lawful balance - Whether the appropriate test had been engaged in by the respondent

Facts: The first named applicant was a Nigerian woman who had been refused asylum in Ireland who was married to an Irish citizen and had lived without permission for many years in Ireland. She asserted that her husband could not come and live in Nigeria on account of his heart condition. The Minister had refused to revoke the Deportation Order. The Court considered whether in this case the State authorities lawfully engaged in a balancing exercise which resulted in a refusal to revoke the Deportation Order made against the first named applicant, considering the relevance of Article 8 ECHR and Article 41 of the Constitution. She had complied with the Deportation Order. The respondent invited the Court to consider the poor immigration history of the first named applicant.

Held by Eochaidh J. in making an order of certiorari quashing the decision of the respondent to affirm a Deportation Order. The legal and constitutional rights of the applicants had been infringed by the failure to acknowledge, weigh and consider those rights. The wrong test had been applied and the medical condition of the Irish citizen had not been appropriately weighed. It would be wrong to excuse the unlawful decision by the Minister and his officials.

1 1. Decisions to remove or exclude from the state non-nationals married to Irish nationals require the balancing of the public interest in maintaining immigration control and the private interests of the individuals to live together in Ireland. There are many decisions, from the common law jurisdictions and international courts which have described the balancing exercise required to be undertaken and the principles which apply to this exercise. Ultimately, as Bingham L.J. said in E.B. (Kosovo) v. Secretary of State for the Home Department [2008] UKHL 41 [12]:

"The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 [ECHR] requires."

2 2. While these comments were made in respect of the balancing of rights arising under the Convention, the same can readily be said in respect of the balancing of rights arising under the Constitution.

3 3. The applicants and the respondent agree that marital, family and private life rights are not absolute, in that frequently such rights must surrender to the countervailing right of the State to assert immigration control and permit serious interference with those rights. The issue for decision in this case is whether the State authorities lawfully engaged in a balancing exercise of the competing rights which resulted in a refusal to revoke the Deportation Order made in respect of the first named applicant.

Background

4 4. The first named applicant is a Nigerian woman who was refused asylum in Ireland and in respect of whom a Deportation Order was made in June 2005. She lived in Ireland without permission for four years. In 2006, she met the second named applicant who is an Irish citizen. After a number of years they decided to marry.

5 5. The applicants say (and this is not denied) that they received advice from the Immigration Office in Dublin that they should marry in Nigeria and then apply for a visa for the first named applicant to enter the State. The applicants went to Nigeria on 15th September 2009, and were married there on 19th September 2009. The first named applicant applied for a visa to enter the state and applied for the revocation of the Deportation Order in December 2009. This was refused on 3rd February 2010.

6 6. In March of the same year, the second named applicant went to Nigeria to visit his wife. He found the visit very difficult because of the heat and humidity in Lagos. He returned to Ireland on 20 ^th March. On 23 ^rd March, the second named applicant suffered a heart attack. He has averred that he was treated by angioplasty and that a coronary stent was inserted in St. James's Hospital in Dublin. He has also averred that he was told that he had an 80% blockage in one of his coronary arteries.

7 7. The second named applicant elaborates upon the difficulties presented by his heart disease as follows:

"I say that due to my heart condition (as well other unrelated kidney problems) [sic] I was unable travel to Nigeria to see my wife. I was advised by my doctors that I shouldn't fly, let alone go to live in Nigeria for any length of time. My family doctor, Dr. Fergus Purcell, told me that he has travelled to Nigeria himself and that it would be very risky for me to go there due to the lack of sufficient medical treatment if I were to suffer a further attack. The medications I am taking for my heart condition are not even available in Nigeria. I retired from work due to ill-health, but being sick at home on my own made me miss my wife even more. I became very depressed about our separation."

8 8. The second named applicant contacted his local T.D. to seek help and advice. The T.D. contacted the respondent's office and they indicated that it was open to the first named applicant to make a further application for revocation of the Deportation Order based on the new medical facts. On 2 ^nd November 2010, the first named applicant reapplied for revocation of the Deportation Order. In relevant part, the application states as follows:

"On 5 ^th March 2010, my husband visited me for the second time in Nigeria, he left after two weeks on 20 ^th March 2010, only to have a heart attack on 23 ^rd March, barely two days on arrival in Ireland, by the mercy of God and also for the good medical care in Ireland, he survived an operation but was warned by the doctor not to travel by air, for now, since he has 80% blockage in his heart and stand at a risk for further attack. If this attack had happened to him while in Nigeria, it could have been a different story."

9 9. The first named applicant sent a reminder by email of 19 ^th January 2011, repeating the assertion as to the illness of her husband. On 21 ^st March 2012, she sent a letter by way of further reminder in. which she said:

"He cannot come and live in Nigeria because of his health condition. All the medical report for the heart attack surgery has been sent and should be in my file."[sic]

10 10. It is averred that a hand written note from Dr. Fergus Purcell which is dated 22 ^nd April 2010 was attached to the application. This note is exhibited and it says:

"Mr. J. Gorey is post-myocardial infarction and post-stenting, he still has 80% blockage in left circumflex [artery] - his cardiac status is such that he would be ill-advised to live in Nigeria,"

Sincerely

F. Purcell"

11 11. In addition, the statement of a locum consultant physician, Dr. Hamad, from the Midland Regional Hospital at Portlaoise was also said to be attached to the application which was in the following terms:

"[Mr. Joseph Gorry] was an in-patient in Portlaoise Hospital from 24/03/10 to 26/03/10. He was admitted with a non-ST segment elevation MI. He was transferred to St. James's Hospital for an urgent angiogram during this time and returned to Portlaoise Hospital. He will attend cardiac rehabilitation here in Portlaoise Hospital."

12 12. In addition to the short medical reports, information explaining stenting and angioplasty was also submitted. These too have been exhibited. A letter was also attached to the application which invited the second named applicant to attend the Cardiac Diagnostics Clinic on 17 ^th April 2010. As the second named applicant also suffers from kidney disease, a short medical report from a consultant neurologist was submitted. Numerous photographs were also submitted which show the couple in each other's company at their wedding and in other places. The second named applicant submitted a letter in support of the application to revoke the Deportation Order but did not keep a copy of it and he does not refer to its contents. The respondent has not exhibited this letter.

13 13. By letter of 20 ^th July 2012, the Irish Naturalisation and Immigration Services (INIS) informed the first named applicant that the Minister refused to revoke the Deportation Order. Attached to the letter was a "Consideration of Application". This assessment of the...