S (P) & E (B) v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 23 March 2011
• Neutral Citation: [2011] IEHC 92
• Court: High Court
• Date: 23 March 2011

[2011] IEHC 92

THE HIGH COURT

[No. 1100 J.R./2010]

S (P) & E (B) v Min for Justice

BETWEEN/

P. S. AND B. E.

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IMMIGRATION ACT 1999 S5

E (B) v MIN FOR JUSTICE UNREP COOKE 25.6.2010 2010 IEHC 249

IMMIGRATION ACT 1999 S3(11)

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 S27

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 S27(1)

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 S27(2)

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 S27(3)

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 S27(11)

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 S27(3)(A)

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 S27(3)(C)

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 S27(3)(B)

U (MA) & ORS v MIN FOR JUSTICE (NO 1) UNREP HOGAN 13.12.2010 2010 IEHC 492

CONSTITUTION ART 41.3.1

CONSTITUTION ART 41

C (T) & C (A) v MIN FOR JUSTICE 2005 4 IR 109 2005 2 ILRM 547 2005/10/2112 2005 IESC 42

OMOREGIE & ORS v NORWAY 2009 IMM AR 170 2008 ECHR 761

BOULTIF v SWITZERLAND 2001 2 FLR 1228 2001 33 EHRR 50

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

IMMIGRATION

Deportation

Family rights - Proportionality - Reasonableness - Married couple - Citizen of Ireland -Intellectual and physical disabilities - Naive and vulnerable person - Nigerian spouse notified by respondent of intention to deport - Refusal of respondent to revoke deportation order - Identification - Whether order preventing publication or broadcasting of anything which could identify first applicant required - Competing interests - Integrity of asylum system - First applicant incapable of independent travel to Nigeria - Marriage of applicants when immigration status of second applicant precarious - Exceptional circumstances - Whether respondent's refusal to revoke deportation order disproportionate and unreasonable - TC v Minister for Justice [2005] IESC 42, [2005] 4 IR 109; Omoregie v Norway [2008] ECHR 761; Boultif v Switzerland (2001) 33 EHRR 1179 considered - Immigration Act 1999 (No 22), s 3 - Civil Law (Miscellaneous Provisions) Act 2008 (No 14), s 27 - Relief granted (2010/1100JR - Hogan J - 23/3/2011) [2011] IEHC 92

S(P) v Minister for Justice, Equality and Law Reform

Facts The first named applicant was an Irish citizen who married the second named applicant, a Nigerian citizen on 20 November 2009, following a six month romance. The first named applicant suffered from an intellectual disability and bi-polar disorder in addition to physical illnesses and he required constant medication and on-going medical supervision. The second named applicant had unsuccessfully applied for asylum prior to meeting the first applicant and in July 2009 she was notified that the respondent proposed to deport her. Both her application for subsidiary protection and her application to have the deportation order revoked were refused. The applicant was also refused relief in earlier judicial review proceedings. In the proceedings before this court the applicants sought an order by way of judicial review quashing the refusal of the respondent to revoke the deportation order in respect of the second named applicant. The application for revocation had been made in the wake of two psychiatric reports, which were commissioned in other court proceedings. The applicants also sought an order pursuant to section 27 of the Civil Law (Miscellaneous Provisions) Act, 2008 preventing the publication or broadcasting of any material, which would be likely to identify the first named applicant as a person having the medical condition in question. The respondent, when making the decision sought to be impugned, considered that the first named applicant could apply for a visa to visit Nigeria in order to see the second named applicant.

Held by Hogan J. in quashing the respondent's decision not to revoke the deportation order: That it was appropriate to make an Order pursuant to s. 27 of the Act of 2008. There seemed no reason to doubt the mutual affection which the applicants professed to feel for each other or that the marriage brought them mutual happiness. The respondent did not seek to suggest that the parties were not validly married. If the second named applicant were to be deported, it would in principle be permanent, subject only to the right of the respondent to revoke that order. The respondent's assessment of the situation was entirely unrealistic and totally unbalanced. Even assuming that the first applicant could obtain an entry visa to Nigeria, the respondent gave no consideration to how the applicant could possibly afford such a trip. The respondent's task in respect of this case was to balance potentially competing interests in a proportionate and fair manner. Although the principle of maintaining the integrity of the asylum system was undoubtedly important, that principle could sometimes yield, if only in unusual and exceptional circumstances to countervailing and competing values, one of which was the importance of protecting the institution of marriage. In this case, disproportionate weight was given to the need to maintain the integrity of the asylum process, and furthermore, the entire assessment of the position of the parties herein was unbalanced. Consequently, the respondent's decision was both disproportionate and unreasonable in law and struck at the essence and substance of the applicants' family rights under Article 41 of the Constitution.

Reporter: L.O'S.

1 1. The first applicant, Mr. S., is an Irish citizen who is now aged 49 years and who lives in a town in the midlands. He has lived in Ireland all his life. He is a middle aged man who suffers from an intellectual disability and from a bi-polar disorder. He also suffers from diabetes, hypothyrodism and elevated cholesterol levels and he requires ongoing medical supervision. While he has lived freely and independently in the community, he has been dependent on the daily support of a religious order to enable this to be done. He is assessed twice a month by an educational psychologist.

2 2. Such is the nature of his disabilities that concern has been expressed as to whether he had the requisite capacity to marry and, indeed, to understand the nature of these present proceedings. The requisite psychiatric evidence which has been commissioned following the commencement of these proceedings now clearly establishes that he has this capacity, but there is nonetheless no doubt but that the first applicant is a naïve and vulnerable person.

3 3. The second applicant, Ms. E., is a Nigerian citizen who is now aged 24 years. She arrived in Ireland in August, 2007 and applied for asylum. This application was refused and the Minister subsequently notified her by letter dated 28 ^th July, 2009, that it was proposed to deport her. She applied for subsidiary protection, but this was refused by decision of 30 ^th November, 2009. The fact that deportation order had been made by the Minister was then communicated to the second applicant in December, 2009.

4 4. In the meantime the two applicants had first met in May, 2009. They began a friendship and a romantic relationship followed. They were married on 20 ^th November, 2009.

5 5. In the wake of the marriage, the couple applied to the Minister for permission for the second applicant to reside on the State based on her marriage to an Irish citizen. Correspondence then followed whereby the applicants were urged first to apply to have the deportation order revoked. On 21 ^st January, 2010, Ms. E. was arrested pursuant to s. 5 of the Immigration Act 1999 ("the 1999 Act") and she was informed that her application to revoke the deportation order had been refused.

6 6. There then followed a series of applications to this Court. The couple's original judicial review application (2010 No. 76 JR) was dismissed by Hanna J. on 12 ^th March, 2010, but he continued a stay on the deportation order until 16 ^th April, 2010. It is important to stress that Hanna J. never adjudicated on the merits of the application, as he found that they applicants had delayed unduly in making the application to quash the order. He also found that the applicants had failed to bring the fact of the marriage to the Minister in a timely fashion and had thus "drip fed" key items of information. It would appear that the Court was disposed to refuse the relief sought by reason of lack of candour on the part of the applicants.

7 7. In the meantime on 15 ^th February, 2010, Cooke J. granted leave to Ms. E. to seek a judicial review of the Minister's refusal to grant her subsidiary protection. On 15 ^th April, 2010, Cooke J. granted an interlocutory injunction restraining Ms. E's deportation pending the outcome of that particular challenge and it would appear that at some point shortly thereafter Ms. E. was released from custody. The substantive hearing took place on the 15 ^th June, 2010, and on 25 ^th June, 2010, Cooke J. delivered a reserved judgment in which he refused the relief sought: see E. v. Minister for Justice, Equality and Law Reform [2010] IEHC 249.

8 8. At the hearing before Hanna J. issues had been raised regarding the first applicant's capacity to marry and, as has already been indicated, two psychiatric reports were commissioned on this topic. In the wake of these reports, the Mr. S. applied to have Ms. E.'s deportation order revoked pursuant to s. 3(11) of the 1999 Act. This application was refused by decision of 20 ^th April, 2010, but this was not communicated to the applicants until 29 ^th July, 2010. The applicants then immediately applied for and obtained leave to quash this decision from Peart J. on 3 ^rd August, 2010, and...