McHugh & Asemota v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 09 March 2012
• Neutral Citation: [2012] IEHC 110
• Court: High Court
• Date: 09 March 2012

[2012] IEHC 110

THE HIGH COURT

[No. 435 SS/2012]

McHugh & Asemota v Min for Justice

IN THE MATTER OF AN APPLICATION UNDER ARTICLE 40 OF THE CONSTITUTION

BETWEEN

ANDREW MCHUGH AND GLORIA ASEMOTA

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

CONSTITUTION ART 40

IMMIGRATION ACT 1999 S3

IMMIGRATION ACT 1999 S3(11)

IMMIGRATION ACT 1999 S3(6)

IMMIGRATION ACT 1999 S3(1)(A)

CONSTITUTION ART 40.4.2

STATE (WOODS) v KELLY 1969 IR 269

IZMAILOVIC v GARDA CMSR 2011 2 ILRM 442

RYAN v AG 1965 IR 294

O'SHEA v IRELAND 2007 2 IR 313

CONSTITUTION ART 41.3.1

CONSTITUTION ART 41.3.2

DAMACHE v DPP UNREP SUPREME 23.2.2012 2012 IESC 11

DECEASED WIFE'S SISTER'S MARRIAGE ACT 1907 S3(2)

DECEASED BROTHER'S WIDOW'S MARRIAGE ACT 1921 S1(2)(B)

CONSTITUTION ART 41

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

A (X) (AN INFANT) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 25.10.2011 2011 IEHC 397 2011/1/192

S (B) & ORS v MIN FOR JUSTICE UNREP CLARK 13.10.2011 2011 IEHC 417

C (T) v MIN FOR JUSTICE 2005 4 IR 109

CIVIL REGISTRATION ACT 2004 S58(3)

METOCK & ORS v MIN FOR JUSTICE 2009 QB 318 2009 2 WLR 821 2009 AER (EC) 40 2008 ECR I-6241

EEC DIR 2004/38 ART 3(1)

CONSTITUTIONAL LAW

Family rights

Right to marry - Applicants engaged to be married - Second applicant arrested for deportation - Right of applicants to apply to any High Court judge for Article 40 inquiry - Court declining to order production of second applicant - Whether marriage to Irish national conferring automatic right on foreign national to reside in State - Whether deportation of second applicant unlawful - O'Shea v Ireland [2006] IEHC 305, [2007] 2 IR 313 considered - Izmailovic v Garda Commissioner [2011] IEHC 32, [2011] 2 IR 522 distinguished - Constitution of Ireland 1937, Article 40 - Application refused (2012/435SS - Hogan J - 9/3/2012) [2012] IEHC 110

McHugh v Minister for Justice and Equality

1 1. This application under Article 40 of the Constitution raises fundamental questions in relation to the right to marry and the interaction of that right with our immigration laws, together with a not unimportant aspect of procedure and practice attaching on Article 40 applications. Before considering these issues, it is necessary first to set out some background facts.

2 2. The first named applicant is an Irish national who is currently living in Waterford. He is a sign designer who is apparently out of work at the moment but has, nevertheless, good employment prospects. The second named applicant is a Nigerian national who arrived in the State in 2008. Her asylum application was rejected on 14 ^th August, 2008.

3 3. On 23 ^rd October, 2008, the second named applicant was notified that the Minister for Justice proposed to make a deportation order in respect of her under s. 3 of the Immigration Act 1999 (as amended)("the Act of 1999"). She was invited to make representations and did so. The Minister ultimately made a deportation order against her some three years later on 20 ^th September, 2011. The second named applicant was then informed of that decision and she was required to present herself to the Offices of the Garda National Immigration Bureau on various dates in order to make arrangements for her deportation from the State.

4 4. At the hearing of the application, I was informed that the couple had met some eighteen months ago and that they are now engaged to be married on 15 ^th March, 2012. No challenge has ever been brought to the deportation order made in respect of the second named applicant. However, an application was made by the applicants' solicitor on 14 ^th December, 2011, where the Minister was requested to revoke the deportation order pursuant to his powers under s. 3(11) of the Act of 1999.

5 5. It would appear that very little new information was supplied to the Minister with this communication, save that he was advised that the second named applicant was engaged to marry the first named applicant, an Irish citizen, and that the marriage was proposed to take place at the Registry Office in Galway on 15 ^th March, 2012. The briefing note prepared for the Minister on 3 ^rd January, 2012, referred to the fact that the second named applicant's case had been fully examined under s. 3(6) of the Act of 1999, as recently as August 2011. The author of the note went on to say:

"Consideration was also given to the right to private and family life under Article 8 of the European Convention of Human Rights. No information which would attest to a change in fact or the circumstances of the applicant in relation to these issues has been submitted, other than a mere notification of intention to marry a Mr. Andrew McHugh, it is not proposed to reconsider these issues."

6 6. The second named applicant was arrested at approximately 7.30am on 7 ^th March, 2012. It would appear that the applicant was arrested pursuant to s. 3(1A) of the Act of 1999 (as amended) in order to facilitate her deportation from the State. It seems to me that the second named applicant was brought to Dublin Airport for the purposes of being put on a charter flight to Nigeria, which flight was due to leave in the early hours of 8 ^th March, 2012.

The Application under Article 40

7 7. Shortly after 11.00am on 7 ^th March, 2012, Mr. McMorrow moved an application to me for an enquiry under Article 40.4.2 of the Constitution. As it happens, I had been assigned by the President of the High Court to hear personal injuries cases on that day. Having read the affidavit of the applicant's solicitor and heard the submissions of counsel, I decided to direct an enquiry pursuant to Article 40.4.2, but I declined (for reasons I will presently explain) to exercise my power to direct that the body of the applicant be produced before me.

8 8. I further directed that the applicants should give notice to the State authorities of the application and directed that the enquiry would resume at 4.00pm that afternoon. At the commencement of the hearing that afternoon, counsel for the Minister, Ms. Carroll, drew my attention in a very respectful fashion to the fact that the application had been made to me rather than to one of the judges nominated that day to hear asylum and immigration matters, namely, Clark J, and Cross J., both of whom were sitting and available during the course of the day. I took this submission - or, if you will, observation - to be to the effect that the applicant had either no right to apply to me or, at least, that it was inappropriate for him to have done so, given that I had not been assigned by the President to hear immigration and asylum matters on that day.

9 9. I do not consider that this suggestion is well founded. The opening lines of Article 40.4.2 of the Constitution provide:-

"Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every Judge thereof to whom such complaint is made shall forthwith enquire into the said complaint…"

10 10. It is clear from the express language of Article 40.4.2 ("…the High Court or any judge thereof…") that the right of an applicant to apply to any judge of this Court for an inquiry into the legality of the detention is absolute and untrammelled. In this respect, Article 40.4.2 draws a distinction between the initial application for an inquiry on the one hand and those cases where an inquiry has been conducted on the other. In the former case, one has the right to apply to the High Court and, if necessary, to each individual judge of this Court seeking an inquiry. But if this Court or any judge thereof directs that an inquiry should take place, then, once that inquiry has been conducted, the decision as to whether to order the release of the applicant is that of the High Court itself. In this respect, it will be noted that while the words "or any judge thereof" and "any and every judge thereof" are used in the context of the initial application for an inquiry in Article 40.4.2, these words are not replicated in the closing lines of this provision dealing with the actual decision on the legality of the detention itself.

11 11. It is, in any event, the express constitutional duty of any such judge to whom a complaint has been made forthwith to inquire into this complaint. The ordinary day to day assignments of the individual judges of this court are quite irrelevant in this context and they could not prevail, in any event, whether in terms of judicial convenience, seniority or courtesy in the...