Gorry v Minister for Justice and Equality and A B M v Minister for Justice and Equality (1), Gorry v Minister for Justice and Equality and A B M v Minister for Justice and Equality (2)

JurisdictionIreland
JudgeO’Donnell J.,Mr. Justice William M. McKechnie
Judgment Date23 September 2020
Neutral Citation[2020] IESC 55
Docket NumberSupreme Court Record No. 2018 / 9 High Court Record No. 2012 / 859 JR Supreme Court Record No. 2018 / 11 Court of Appeal Record No. 2017 / 31 High Court Record No. 2015 / 449 JR
Date23 September 2020
CourtSupreme Court
Between /
I. GORRY

and

JOSEPH GORRY
Applicants (H.C.)/ Respondents
-and-
THE MINISTER FOR JUSTICE AND EQUALITY
Respondent (H.C.)/ Appellant
and
Between /
A.B.M.

and

B.A.
Applicants (H.C.)/ Respondents
-and-
THE MINISTER FOR JUSTICE AND EQUALITY
Respondent (H.C.)/ Appellant

[2020] IESC 55

O'Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

Charleton J.

Supreme Court Record 09/18, 11/18

Court of Appeal Record No. 2014 /1161

High Court Record 2012 859 JR, 2015 449 JR/p>

Supreme Court Record No. 2018 / 11

Court of Appeal Record No. 2017 / 31

High Court Record No. 2015 / 449 JR

Supreme Court Appeal No. 2018/9

Supreme Court Appeal No. 2018/11

THE SUPREME COURT

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Constitutional rights – Deportation orders – Revocation – Respondents seeking revocation of deportation orders – Whether the appellant failed to correctly identify and weigh the constitutional rights involved

Facts: In the Gorry case, the first respondent, a Nigerian woman, came to Ireland and sought asylum unsuccessfully. A deportation order was made in June, 2005. She remained in Ireland illegally and evading deportation. She met the second respondent, Mr Gorry, an Irish man, in 2006, and formed a relationship. In 2009, they travelled to Nigeria, were married, and made an application for revocation of the deportation order and for a visa for Mrs Gorry to enter Ireland. These applications were refused. A second application for revocation was made and refused, and was challenged in these proceedings. The High Court quashed the decision of the appellant, the Minister for Justice and Equality. The Court of Appeal upheld that decision. That court considered the Minister had failed to correctly recognise and weigh the constitutional rights involved in the case. In the A.B.M. case, the first respondent, also a national of Nigeria, came to Ireland in 2006 and sought asylum and/or subsidiary protection. The applications were unsuccessful. In June, 2008, a deportation order was made. He did not present himself for deportation, but rather evaded it successfully for seven years. In early 2014, he applied for revocation of the deportation order. In February, 2015, he married the second respondent, who was also a national of Nigeria and who had, herself, been refused asylum in 2002 but had been given leave to remain in the State in 2007 and had become naturalised as an Irish citizen in August, 2013. The parties claimed that in October, 2006, they had undergone a religious ceremony of marriage, but one which was accepted not to be legally binding. In July, 2015, the appellant Minister was further informed that the second respondent was pregnant. On the 20th of July, the Minister refused to revoke the deportation order which was then challenged in these proceedings. The High Court dismissed the claim. The Court of Appeal allowed the appeal, essentially on the same grounds as had been applied in Gorry. The issue common to both cases was the approach to be taken by the Minister when it is said, in the broadest sense, that the interests of a married couple and a family are affected by the making of a deportation order or by the decision on the revocation of an order already made where, in each case, the marriage was entered after the making of a deportation order and its evasion.

Held by the Supreme Court (O’Donnell J) that the Minister’s approach to both cases was flawed, essentially because the Minister had treated the constitutional analysis as identical, and perhaps even subsidiary, to the analysis by reference to the European Convention on Human Rights. O’Donnell J agreed with McKechnie J that the conclusion by the Court of Appeal in this respect was correct.

O’Donnell J held that these appeals would therefore be dismissed.

Appeals dismissed.

Judgment of O’Donnell J. delivered on the 23 rd day of September, 2020
I. Introduction
1

There is no doubting the importance, or difficulty, of the issues raised by these appeals. For more than 40 years, the Irish courts, lawyers, and academic writers have struggled with the manner in which the provisions of the Constitution protecting the Family, and Articles 41 and 42 in particular, should be applied, particularly in the field of immigration. The interpretation of those Articles has never been easy, but changing attitudes to marriage and family relationships and the phenomenon of significant immigration are two of the areas in which this country has seen the greatest changes since the coming into force of the Constitution and which have, indeed, been reflected at the level of constitutional change.

2

The common question raised by these appeals is the approach the Minister must take when he or she is invited to revoke a deportation order made against a non-national who has become married to an Irish citizen, thereby creating a family. Obviously, the same considerations arise when it is proposed to make a deportation order against a non-national spouse of an Irish citizen or, indeed, when permission is sought for a spouse of an Irish citizen to enter and reside in the State. At a more general level, however, the fundamental question of the weight to be given to the constitutional protection of Marriage and the Family may arise in a variety of situations in which decisions come to be made in respect of one member of that family, often a spouse, in circumstances where it is plain that the decision will have an impact upon a marriage and family.

3

The facts of each of these cases are set out in the comprehensive judgment of McKechnie J., to which recourse should be had for any additional matter of detail. For present purposes, the core facts of each case, which give rise to the legal issues, can be stated quite succinctly.

4

The Gorry case was the principal focus of the decision of the Court of Appeal. A Nigerian woman came to Ireland and sought asylum: unsuccessfully. Ultimately, a deportation order was made in June, 2005. She remained in Ireland - illegally and evading deportation. She met an Irish man, Mr. Gorry, in 2006, and formed a relationship. In 2009, they travelled to Nigeria, were married, and made an application for revocation of the deportation order and for a visa for Mrs. Gorry to enter Ireland. These applications were refused. Mr. Gorry visited his wife in Nigeria. He found the experience physically difficult and. on his return to Ireland, suffered a heart attack. He says he has been advised not to fly and, in particular. not to stay in Nigeria for any amount of time due to the lack of sufficient medical treatment for his condition if he were to experience a further heart attack. A second application for revocation was made and refused, and is challenged in these proceedings.

5

The High Court (Mac Eochaidh J.) quashed the decision of the Minister. The Court of Appeal upheld that decision, although differing somewhat as to the analysis to be applied. The couple had separated after the High Court decision; however, the Court of Appeal considered that the case should not be treated as moot because of the importance of the issues involved. The Court of Appeal considered it was incorrect to conclude that an Irish citizen had a right to have a non-national spouse to reside with them in Ireland, or even a prima facie right to do so, as the High Court had held. Indeed, it appears that this conclusion of the High Court and its possible ramifications were both significant in prompting the appeal to the Court of Appeal. However, that court also considered the Minister had failed to correctly recognise and weigh the constitutional rights involved in the case. In particular, it appeared that the Minister had treated the question of the constitutional rights of the married couple and family involved as essentially indistinguishable from the rights they possessed under the European Convention on Human Rights (“E.C.H.R.”) and had applied the analysis found in the case law of the European Court of Human Rights (“E.Ct.H.R.”) without giving separate consideration to the position under the Constitution and, in particular, the family rights which are stated in the Constitution in emphatic terms implying, it was considered, a higher level of protection under the Constitution than was afforded under the E.C.H.R.

6

In the A.B.M. case, a man, also a national of Nigeria, came to Ireland in 2006 and sought asylum and/or subsidiary protection: the applications were unsuccessful. In June, 2008. a deportation order was made. A.B.M. did not, however, present himself for deportation, but rather evaded it successfully for seven years. In early 2014, he applied for revocation of the deportation order. In February, 2015, he married B.A., who was also a national of Nigeria and who had. herself, been refused asylum in 2002 but had been given leave to remain in the State in 2007 and had become naturalised as an Irish citizen in August, 2013. The parties claimed that in October, 2006, they had undergone a religious ceremony of marriage, but one which was accepted not to be legally binding. In July, 2015, the Minister was further informed that BA. was pregnant. On the 20 th of July, the Minister refused to revoke the deportation order which was then challenged in the present proceedings. The High Court (Humphreys J.) dismissed the claim. The Court of Appeal (Finlay Geoghegan, Irvine, and Hogan JJ.) allowed the appeal, essentially on the same grounds as had been applied in Gorry; that is, that the Minister had failed to correctly identify and weigh the constitutional rights involved.

7

The issue common to both cases is, therefore, the approach to be taken by the Minister when it is said, in the broadest sense, that the interests of a married couple and a family are affected by the making of a deportation order or by the decision on the revocation of an order already made where, in each case, the marriage was entered after the making of a...

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