The applicants were a married couple; the husband was a failed asylum seeker in respect of whom a deportation order was made in June 2008. The wife became an Irish citizen, and in January 2014 they applied for revocation of the deportation order. That application was refused in July 2015 and the husband was deported in September 2015. The applicants brought judicial review proceedings challenging the refusal to revoke the deportation order on the basis of a failure to have regard to the rights of the applicants as a marital family pursuant to Article 41 of the Constitution, relying on the decision of the High Court in Gorry v Minister for Justice  IEHC 29. In Gorry, Mac Eochaidh J. held that “[t]he starting point in any consideration where a mixed Irish and non-Irish nationality couple seeks to live in Ireland is that they have a prima facie right to do so by virtue of Article 41 of the Constitution”. The applicants argued that that the Minister’s proportionality analysis in the revocation decision failed to begin from a recognition of that prima facie right and, accordingly, the analysis was flawed.
Humphreys J. disagreed with the key finding in Gorry that there was any such prima facie right of a marital family to live in Ireland. Humphreys J. stated that it was unquestionable that the State has an entitlement to give effect to the immigration control system; while in particular circumstances, applicants may have rights under Article 41 of the Constitution or article 8 of the ECHR to which the Minister should have regard, it was for the Minister in the first instance to put those rights into the balance against the State’s legitimate entitlement to enforce the immigration control system in a reasonable and proportionate manner. It was held that the court should only intervene if the Minister’s assessment was clearly unlawful. On the facts of this case, Humphreys J. was satisfied that the Minister had balanced the interests involved and that her decision was not unlawful or disproportionate. Accordingly, Humphreys J. dismissed the application. This decision is under appeal.
Challenge to refusal to revoke deportation order dismissed.