Facts: The first named applicant was a Nigerian woman who was refused asylum in Ireland and in respect of whom a deportation order was made in June 2005. She lived in Ireland without permission for four years. In 2006, she met the second named applicant who was an Irish citizen. After a number of years they decided to marry. The applicants said (and this was not denied) that they received advice from the Immigration Office in Dublin that they should marry in Nigeria and then apply for a visa for the first named applicant to enter the State. The applicants went to Nigeria on 15th September 2009, and were married there on 19th September 2009. The first named applicant applied for a visa to enter the state and applied for the revocation of the deportation order in December 2009. This was refused on 3rd February 2010. In March of the same year, the second named applicant went to Nigeria to visit his wife. He found the visit very difficult because of the heat and humidity in Lagos. Three days after his return to Ireland, he suffered a heart attack wand was treated by angioplasty and a coronary stent was inserted. He averred that he was told that he had an 80% blockage in one of his coronary arteries and that he was advised by his doctors that he should not travel to Nigeria in the future in the light of his condition. On 2nd November 2010 the applicants made a further application for revocation of the deportation order on the basis of the new medical facts. By letter of 20th July 2012 the Minister refused to revoke the deportation order. The applicants then brought judicial review proceedings challenging the refusal to revoke the deportation order on the basis of a breach of the applicants’ family rights under Article 41 of the Constitution and/or Article 8 of the European Convention on Human Rights. The High Court ([2014] IEHC 29) found in favour of the applicants. The Minister appealed, but the Court of Appeal ([2017] IECA 282) dismissed the appeal. The Minister was then granted leave to bring a further appeal to the Supreme Court.
Decision: A majority of the Supreme Court held that there was no prima facie constitutionally protected right to cohabit in the State for marital couples, one of whom is a non-Irish national. However, it was held that in making a decision on an application to revoke a deportation order in such circumstances, the Minister was required to have regard to (a) the right of an Irish citizen to reside in Ireland; (b) the right of an Irish citizen to marry and found a family; (c) the obligation on the State to guard with special care the institution of marriage; and (d) the fact that cohabitation is a natural incident of marriage and the family and that deportation will prevent cohabitation in Ireland and may make it difficult, burdensome, or even impossible anywhere else for so long as the deportation order remains in place. The Supreme Court also clarified that the test under Article 8 of the ECHR should not be applied in the consideration of issues arising under the Constitution, because while the Constitution and the ECHR together provide extensive overlapping protection for families and marriage, it is necessary to recognise the different contexts.
