S. A. and Another [No. 2] v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 14 April 2015
• Neutral Citation: [2015] IEHC 226
• Court: High Court
• Date: 14 April 2015

[2015] IEHC 226

THE HIGH COURT

[No. 567 J.R./2014]

A (S) & A (N)(No.2) v Min for Justice

JUDICIAL REVIEW

No Redaction Needed

BETWEEN

S. A. AND N. A. [No. 2]

APPLICANTS

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

Immigration and Asylum – Deportation Order- Marital Rights – Constitutional Rights – Immigration Control

Facts: The Refugee Appeals Tribunal refused the applicants asylum. The applicant applied for a revocation of the deportation order on the basis that he was married to an Irish citizen. The applicant alleged that the decision was irrational and based on an error of law because his constitutional rights were not lawfully considered. It was argued that the Minister failed to consider that Article 41 of the Constitution provides a prima facie right for the applicants to reside together. The applicant also submitted that the decision was disproportionate.

Held by Mac Eochaidh J:

The court took into consideration the fact that the first named applicant was not truthful with the Irish authorities or his wife during the asylum process or during revocation of the deportation order. The court balanced the applicant”s constitutional rights arising from the marital relationship against the State”s rights in protecting its immigration system and policy. The court accepted the applicant”s had constitutional marital rights but determined that these were not absolute. The way they had been assessed was lawful and proportionate. The court refused the applicants the relief sought because a marriage based on deceit by the husband and the wife”s reckless disregard as to his immigration status was a poor competitor in a contest that balanced marital rights against state rights in the field of immigration control.

1 1. This is an application for judicial review of the respondent's decision refusing to revoke a deportation order made in respect of the first named applicant. S. A. arrived in Ireland in September 2008, claiming to be from Sierra Leone. He sought asylum but this was refused ultimately by decision of the Refugee Appeals Tribunal. He also sought subsidiary protection which was refused in April 2011. Permission to remain was refused in June 2011 and a deportation order was also made which obliged him to leave the State by 25 ^th June, 2011. An application for revocation of the deportation order was submitted to the respondent Minister on 6 ^th October, 2011. The basis of the revocation application was the marriage of the first named applicant to the second named applicant, an Irish citizen who is the mother of four children who have separate fathers. The first named applicant is not the biological father of any of these children.

2 2. In December 2014, this Court heard an application for an interlocutory injunction to restrain the deportation of S. A. pending the outcome of these proceedings. In the course of that application, the court at its own request heard vivavoce evidence from the first and second named applicants. The court questioned the parties about the background to their relationship and made certain findings of fact which are set out in a judgment of this Court dated 14 December, 2014. As can be seen from that judgment, the parties met in July 2009, commenced a romantic relationship in the spring of 2010 and were married in August 2011.

3 3. At no time, according to the evidence heard at the interlocutory stage, did the first named applicant inform the woman who was to be his wife that he was a failed asylum seeker, a failed applicant for subsidiary protection, a person who had been refused leave to remain in the State and a person in respect of whom a deportation order had been made. It is accepted by the applicant that he sought international protection in Ireland on a completely false basis using a false identity which asserted that he was a national of Sierra Leone rather than his true nationality of Nigeria. The evidence at the interlocutory stage was that the first named applicant informed the second named applicant that he was an asylum seeker awaiting a decision on his application. It was also established that the second named applicant made no inquiries as to the progress of the application for asylum and married him believing that his application was outstanding and not knowing that in fact he had been refused asylum, subsidiary protection, leave to remain and that a deportation order had been made against him. It is a factor which bears on the outcome of these proceedings that the first named applicant was not truthful with the Irish authorities during the asylum process or during the revocation of deportation order process, nor was he honest with his wife. It is also a factor which has a bearing in these proceedings that his wife, who has had previous relationships with non-EU nationals, married the first named applicant, recklessly in my view, without inquiring as to the basis of his presence in the State. Her evidence, at the interlocutory stage, was that she was extremely upset to discover, on the evening of her marriage, that her husband was the addressee of a deportation order and she further stated that she would not have married him if she had known that he was facing deportation. It is a curious fact that had she known of the deportation order she would not have married him and yet she never made any inquiry as to how his asylum application was progressing. She was actively aware that his permission to be in the State was precarious, being dependent on the outcome of his asylum application.

4 4. No complaints were made in the proceedings with regard to the description of the application for revocation which was recorded by the Minister's official as follows:-

"By letter dated 06/10/2011, [the first named applicant's] new legal representatives…submitted an application for revocation of the Deportation Order on the basis of their clients having contracted a civil marriage to one N.A. [the second named applicant], an Irish national and divorced mother of four...