A.v The Minister for Justice and Equality No.2; S. v The Minister for Justice and Equality No.2

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 29 July 2019
• Neutral Citation: [2019] IEHC 588
• Date: 29 July 2019
• Court: High Court
• Docket Number: Record No. 2018/891JR Record No. 2017/915JR

[2019] IEHC 588

THE HIGH COURT

Barrett J.

Record No. 2018/891JR

Record No. 2017/915JR

Between/

A.

Applicant

– and –

THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL, IRELAND

Respondents

– and –

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION (No.2)

Notice Party

Between/

S.

AND

S.

Applicants

– and –

THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL, IRELAND

Respondents

– and –

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION (No.2)

Notice Party

Declaratory relief – International Protection Act 2015 s.56(9)(a) – Constitution – Applicants seeking declaratory relief – Whether s.56(9)(a) of the International Protection Act 2015 is repugnant to the Constitution insofar as it defines a sponsor’s spouse as confined to the spouse of a marriage which is subsisting on the date the sponsor made an application for international protection in the State

Facts: The High Court, in its principal judgment ([2019] IEHC 547), held that the exclusion of post-flight marriages from the right to family reunification, pursuant to s.56 of the International Protection Act 2015, was unconstitutional. It then fell to the court to determine the form of the final orders to be made following on that judgment. Counsel for the applicants contended that having regard to the foregoing and to the substance of the principal judgment, the appropriate declaration for the court to make was as follows: “That s.56(9)(a) of the International Protection Act 2015 is repugnant to the Constitution insofar as it defines a sponsor’s spouse as confined to the spouse of a marriage which is subsisting on the date the sponsor made an application for international protection in the State.” The respondents, the Minister for Justice and Equality, the Attorney General and Ireland, objected to the proposed wording on the grounds that it would amount to the court usurping the legislative function.

Held by Barrett J that: (1) the declaration most consistent with the principal judgment was one that severs the unconstitutional portion of s.56(9)(a) of the 2015 Act, i.e., the portion that restricts the definition of “member of the family”, in the case of a married sponsor, to a spouse whom the sponsor had married prior to making his international protection application, so to read s.56(9)(a) as follows - “(a) where the sponsor is married, his or her spouse (provided that the marriage is subsisting on the date the sponsor made an application for international protection in the State)” - a severance which leaves s.56(9)(a) in a sensible and operable condition; (2) as regards the contention of the respondents that so to sever is to undermine the intention of the Oireachtas, in fact quite the contrary position pertains as were the court to proceed as the respondents had contended and strike down the entirety of s.56(9)(a), that would nullify the clear intention of the Oireachtas in s.56(9)(a) of the 2015 Act to allow for spousal reunification, an intention that, the court noted, is consistent with Art.41 of the Constitution and with the State’s international legal obligations; (3) the court had concluded in its principal judgment that it was unconstitutional for the Oireachtas to limit the statutory reunification right by excluding ‘post-flight’ marriages, hence the most appropriate remedy was to excise what is unconstitutional and leave intact the right to spousal reunification as to remove entirely the right to spousal reunification for beneficiaries of international protection would be to do more violence to the intention of the Oireachtas than the mere excision of the offending portion of s.56(9)(a) in accordance with the judgment of the court; (4) in its principal judgment, the court noted, inter alia, at para.8, that “[T]he Minister is always free under s.56 to undertake as careful a consideration as he wants, having regard to such concerns as he may have, e.g., regarding marriages of convenience, human trafficking (both of which raise clear public policy issues), and to ensure that only genuine family members get into Ireland.” The Proposed Declaration would not interfere with the power of the Minister to investigate applications under s.56(2) and to refuse applications under s.56(7) if satisfied that that is necessary on grounds of national security or public policy.

Barrett J held that the court would grant a declaration in the form of declaration sought by the applicants.

Declaration granted.

JUDGMENT of Mr Justice Max Barrett delivered on 29th July, 2019.

I. Introduction

1 In its principal judgment in the above-titled proceedings (see [2019] IEHC 547), the court held that the exclusion of post-flight marriages from the right to family reunification, pursuant to s.56 of the International Protection Act 2015, was unconstitutional. It now falls to the court to determine the form of the final orders to be made following on that judgment.

2 Two initial points might be made:

(i) the court enjoys a discretion to fashion the appropriate remedy in light of the outcome of its judgment (see e.g., Sinnott v. Minister for the Environment, etc. [2017] 2 IR 570 and Walker v. Leonach [2018] IECA 132).

(ii) it is useful also to recall in this regard Article 15.4.2° of the Constitution which provides that:

‘Every law enacted by the Oireachtas, which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid.’

3 Counsel for the applicants contends that having regard to the foregoing and to the substance of the principal judgment, the appropriate declaration for the court to make (the “Proposed Declaration”) is as follows:

‘That s.56(9)(a) of the International Protection Act 2015 is repugnant to the Constitution insofar as it defines a sponsor's spouse as confined to the spouse of a marriage...