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
CourtSupreme Court
JudgeMr. Justice William M. McKechnie
Judgment Date23 September 2020
Neutral Citation[2020] IESC 55
Date23 September 2020
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

[2020] IESC 55

THE SUPREME COURT

AN CHÚIRT UACHTARACH

THE SUPREME COURT

O'Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

Charleton J.

Supreme Court Record No. 2018 / 9

Court of Appeal Record No. 2014 /1161

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

Supreme Court Appeal No. 2018/9

Supreme Court Appeal No. 2018/11

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

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 Mr. Justice William M. McKechnie delivered on the 23 rd day of September, 2020
Introduction
1

This judgment concerns two appeals which raise the same general issues of principle concerning the appropriate approach required by a decision-maker (most likely the Minister) to an immigration decision concerning the non-national spouse of an Irish citizen. In each case the Applicants are a lawfully married couple comprising one Irish citizen and a non-national spouse; as it happens, each of the non-national spouses is a Nigerian national. The Minister (also referred to as “the Appellant”) has made deportation orders in respect of these foreign spouses. Each set of Applicants made an application to the Minister to revoke the respective deportation orders, but both were unsuccessful in this regard. Accordingly, the Applicants issued judicial review proceedings seeking, inter alia, an order of certiorari quashing the Minister's refusal to revoke such orders.

2

The Applicants in the first set of proceedings were successful before Mac Eochaidh J (see Ifeyinwa Gorry and Joseph Gorry v. Minister for Justice and Equality [2014] IEHC 29). In the course of his judgment, the learned judge concluded that an Irish national married to a non-Irish national has a prima facie right to reside in Ireland with that other person, though such right is not absolute and the State is not obliged in every case to accept the country of residence chosen by that couple.

3

However, the High Court took a different approach in respect of the second set of Applicants, who were refused the reliefs sought (see A.B.M. and B.A. v. Minister for Justice and Equality [2016] IEHC 489). Humphreys J took the view that the idea of a prima facie right to reside in Ireland needs “slight rephrasing”, preferring to state that the couple “should receive prima facie acknowledgment and consideration of their status under Article 41 of the Constitution” but that the same does not amount to a prima facie right.

4

In a further case also raising the same general issue (where the relevant decision of the Minister was a refusal to grant a visa to the Nigerian spouse of the Irish citizen applicant), Eager J broadly followed the approach of Mac Eochaidh J in Gorry and found for the applicant, granting an order of certiorari in respect of the Minister's decision: see Ford & Anor v. Minister for Justice and Equality [2015] IEHC 720.

5

These judgments were appealed (in Gorry and Ford, by the Minister, and in ABM by the applicants) to the Court of Appeal, which delivered judgment in each of them on the 27 th October, 2017: see I. Gorry and Joseph Gorry v. Minister for Justice and Equality [2017] IECA 282 (containing the discussion in respect of the substantive issues in each of the cases) and A.B.M. and B.A. v. Minister for Justice and Equality [2017] IECA 280 and Ford & Anor v. Minister for Justice and Equality [2017] IECA 281 (short, supplementary judgments).

6

The Court of Appeal allowed the appeal by Mr ABM, who was the individual directly involved, and dismissed the Minister's appeals in Gorry and Ford. Its conclusions on the matters of principle were set out in the judgments of Finlay Geoghegan and Hogan JJ in Gorry. Although the Court did not uphold the reasoning of Mac Eochaidh J in the High Court, insofar as the Court of Appeal stated that it is not correct to say that the couple have a prima facie constitutional right to live in Ireland pursuant to Article 41 of the Constitution, it was satisfied that the outcome of Gorry was correct in that the Minister had taken a legally incorrect approach to the assessment, consideration and determination of the applications. The same applied to ABM. The reasons supporting each decision are set out in detail below. In short, it took the view that the Minister erred in applying the same approach to the State's obligations in relation to the constitutional rights of the Applicants as was done in relation to its obligations pursuant to section 3 of the European Convention on Human Rights Act 2003, having regard to Article 8 of the European Convention on Human Rights. In so doing, it held that the protections of Article 41 of the Constitution are stronger than those contained in Article 8 ECHR and that the Minister had erred in not subjecting the Applicants' constitutional claim to any detailed analysis independent of that conducted in respect of Article 8 ECHR.

7

Another judgment of relevance is that of Mac Eochaidh J in A H and K O'L v. Minister for Justice and Equality' (ex tempore, High Court, Mac Eochaidh J, delivered on the 11 th October, 2016) (“ A H v. Minister for Justice”). Again the case involved the refusal by the Minister to revoke a deportation order in respect of the foreign (i.e. not a national of the EU or an EEA state) spouse an of Irish citizen. In large part the learned judge adopted and followed his own earlier judgment in the case of Gorry and granted certiorari of the Minister's decision. The Minister similarly appealed this matter to the Court of Appeal but for procedural reasons was unable to get the case on for hearing alongside Gorry, Ford and ABM.

8

The Minister sought and was granted leave to appeal to this Court in respect of each of these four cases. Leave was granted on the basis that the cases raise issues of general public importance which require clarity. These issues concern an area of sensitive Government activity in terms of immigration policy and have the potential to impact large numbers of Irish citizens and their non-national spouses. It is agreed by the parties and was accepted by the Court of Appeal that the constitutional issues raised in this case have not been considered in recent times by an appellate court.

9

This Court listed the four cases together for case management, during which process it was decided that the appeals in Gorry and ABM would proceed to hearing, with the resolution of those appeals determining the outcome of the other two matters also. This judgment covers both cases. It should be noted at the outset that, for reasons set out below, both Gorry and ABM are...

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