I. Gorry v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan,Ms. Justice Finlay Geoghegan
• Judgment Date: 27 October 2017
• Neutral Citation: [2017] IECA 282
• Date: 27 October 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 282 Appeal Number 2014 1161

[2017] IECA 282

THE COURT OF APPEAL

Finlay Geoghegan J.

Hogan J.

Finlay Geoghegan J.

Irvine J.

Hogan J.

Neutral Citation Number: [2017] IECA 282

Appeal Number 2014 1161

BETWEEN

I. GORRY

AND

JOSEPH GORRY

APPLICANTS/RESPONDENTS

- AND -

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT/APPELLANT

Immigration – Order of certiorari – Judicial review – Appellant to appeal against High Court order – Whether an order of certiorari should be upheld

Facts: The first respondent, Mr Gorry, is an Irish citizen and is married to the second respondent, Mrs Gorry, a Nigerian citizen. The respondents applied for judicial review seeking an order of certiorari of an immigration decision by the appellant, the Minister for Justice and Equality, which in substance precluded or refused permission for Mrs Gorry to remain in the State or to enter the State. The High Court (Mac Eochaidh J), on 6th February 2014, granted the order of certiorari of the Minister’s decision. The Minister brought an appeal to the Court of Appeal against the High Court order.

Held by Finlay Geoghegan J that: (1) the Minister did not consider the constitutional rights of the respondents in accordance with law; (2) Mr Gorry as an Irish citizen does not have an automatic right pursuant to the Constitution to cohabit with his non-national spouse in Ireland; (3) Mr and Mrs Gorry, as a lawfully married couple and a family within the meaning of Article 41 of the Constitution, and Mr Gorry as an Irish citizen, have constitutionally protected rights to have the Minister consider and decide their application with due regard to (i) the guarantee given by the State in Article 41.1.2 to protect the family in its constitution and authority, (ii) a recognition that Mr and Mrs Gorry are a family possessing a right to cohabit which is also an individual right of the citizen spouse which the State must, as far as practicable, defend and vindicate (Article 41.1 and Article 40.3.1), (iii) a recognition that the decision that the family should live in Ireland is a decision which they have a right to take and which the State has guaranteed in Article 41.1 to protect, and (iv) a recognition of the right of the Irish citizen to live at all times in Ireland as part of what Article 2 refers to as his “birth right . . . to be part of the Irish Nation” and the absence of any right of the State (absent international obligations which do not apply) to limit that right; (4) the Constitution places corresponding obligations on the Minister to take the decision as to whether or not to permit the non-national spouse of an Irish citizen to reside in Ireland with due regard to the above constitutional rights of the respondents; (5) the “insurmountable obstacles” test set out by the European Court of Human Rights remains applicable to a consideration by the Minister (if necessary) of the application pursuant to his obligations under s. 3 of the European Convention on Human Rights Act 2003 having regard to Article 8 of the European Convention on Human Rights relating to deportation of the non-national spouse of an Irish citizen.

Finlay Geoghegan J held that, by reason of the legally incorrect approach to the assessment, consideration and determination of the application of Mr and Mrs Gorry pursuant to the constitutional rights and obligations identified above, which were central to the decision which had to be taken by the Minister, she concluded that the order of certiorari should be upheld. Finlay Geoghegan J held that as the proceedings were moot by reason of the separation of Mr and Mrs Gorry and the fact that Mr Gorry, the Irish citizen, was no longer seeking to have Mrs Gorry live with him in Ireland, the matter should not be remitted to the Minister for a further decision.

Appeal dismissed.

JUDGMENT delivered on the 27th day of October 2017 by Ms. Justice Finlay Geoghegan

1 This appeal is brought by the Minister against the order made by the High Court (Mac Eochaidh J.) on 6th February 2014 for the reasons set out in a written judgment delivered on 30th January 2014: see Gorry & Anor. v. Minister for Justice and Equality [2014] IEHC 29. The appeal was heard at the same time as two further appeals where similar issues arose.

2 The second appeal heard on the same day was an appeal against an order made by the High Court (Eagar J.) on 17th December 2015 for the reasons set out in the written judgment delivered on 19th November 2015: see Ford & Anor. v. Minister for Justice and Equality [2015] IEHC 720.

3 The third appeal was an appeal by the applicants A.B.M. and B.A. against the decision of the High Court (Humphreys J.) made on 16th December, 2016 for the reasons set out in a written judgment delivered on 29th July, 2016: see A.B.M. & Anor. v. Minister for Justice and Equality [2016] IEHC 489.

4 In each of these three proceedings, one of the applicants is an Irish citizen and is married to the other applicant who is a foreign national. The marriages in question either took place in Ireland or Nigeria, and all three were recognised by the Minister as lawful marriages. Each application for judicial review sought an order of certiorari of an immigration decision by the Minister which in substance precluded or refused permission for the non-national spouse of the Irish citizen to remain in the State or to enter the State. In each of the proceedings, the second applicant is a national of Nigeria and not a citizen or national of any EU or EEA state. In this judgment they will be referred to as non-nationals, meaning a person who is not a citizen of Ireland or any other EU Member State or any EEA State.

5 The High Court decisions in Gorry and Ford granted orders of certiorari of the Minister's decision. The application was refused in A.B.M. All three High Court judgments consider the appropriate approach required of a decision maker in relation to an immigration decision concerning a non-national spouse of an Irish citizen where the Irish citizen is relying upon rights conferred or protected by the Constitution (and in particular Article 41) and both spouses are relying on rights under Article 8 of the European Convention on Human Rights (‘ECHR’) or, more precisely, upon obligations imposed on the State by s. 3 of the European Convention on Human Rights Act 2003 (‘the 2003 Act’) and Article 8 ECHR. The High Court judgments differ in the conclusions reached on certain of these issues. In particular the judgments in Gorry and A.B.M. reach different conclusions both as to the approach required by Article 41 of the Constitution and the test to be applied in considering the State's obligations under Article 8 of the ECHR. In broad approach the judgment in Ford follows that in Gorry.

Mootness

6 At the hearing of the appeals the Court was informed that the appeal against the order of certiorari granted by the High Court in Ford was moot as a subsequent application for a visa had been made on behalf of Mr. Nwoke, the second named applicant, which had in turn been refused, but that a third application was in progress.

7 The Court was also informed that Mr. and Mrs. Gorry had now separated and that Mr. Gorry was no longer seeking to have Mrs. Gorry live with him in Ireland. The solicitor for the applicants had informed the solicitor for the Minister of these facts. Having regard to the importance of the questions decided in relation to the Constitutional and Article 8 issues, and the different approach in the A.B.M. judgment which is not moot and requires a decision by this Court, the Minister nonetheless submitted that in accordance with the principles set out by the Supreme Court inter alia in O'Brien v. Personal Injuries Assessment Board (No. 2) [2007] 1 I.R. 328 that this Court should hear and decide the appeal in Gorry. This approach was not disputed on behalf of Mr. and Mrs. Gorry.

8 The Court concluded that it should hear and determine the Gorry appeal, in relation at least to the issues of principle in dispute, and that it should only consider any other issue insofar as that is necessary having regard to the subsequent separation of the applicants and consequent absence of any requirement for the Minister to reconsider the application even if the High Court order of certiorari were to be upheld.

9 The Court was informed that the important issues of principle in dispute in these appeals have not been the subject of a judgment by an appellate court.

10 As appears from the short separate judgment delivered in Ford, the Court has reached a different conclusion on the mootness issue in relation to the need to determine that appeal. It is therefore not proposed to refer further to those proceedings or the judgment delivered which on the issues of principle in dispute essentially follows Gorry.

Background facts

11 Mr. Gorry is an Irish citizen and was living in Ireland at all relevant times. Mrs. Gorry is a Nigerian citizen who arrived in the State in March, 2005 and who then made an application for asylum under her then name. This was refused and a deportation order made in relation to her in June, 2005. She was informed of this in September, 2005 and required to present herself to the Garda National Immigration Bureau to make arrangements for her deportation. She did not do so and was classed as having evaded deportation.

12 The applicants met in Ireland in 2006 and decided to marry in 2009. They travelled to Nigeria for that purpose and they were married there in September, 2009. Mrs. Gorry then applied in December, 2009 for a visa to enter the State and for revocation of the deportation order based on the change in her personal circumstances following her marriage to Mr. Gorry, an Irish citizen. That application was refused on 3rd February, 2010.

13 In March, 2010, Mr. Gorry went to Nigeria to visit his wife. He has deposed that he found the visit very difficult because of...