Facts:
In each of these cases, one of the applicants was an Irish citizen and was married to the other applicant who is a foreign national. The marriages in question either took place in Ireland or Nigeria, and all three were recognised by the Minister as lawful marriages. Each application for judicial review sought an order of certiorari of an immigration decision by the Minister which in substance precluded or refused permission for the non-national spouse of the Irish citizen to remain in the State or to enter the State. In each of the proceedings, the second applicant was a national of Nigeria and not a citizen or national of any EU or EEA state. The High Court decisions in Gorry ([2014] IEHC 29) and Ford ([2015] IEHC 720) granted orders of certiorari of the Minister’s decision. The application was refused in ABM ([2016] IEHC 489). All three High Court judgments considered the appropriate approach required of a decision maker in relation to an immigration decision concerning a non-national spouse of an Irish citizen where the Irish citizen relied upon rights conferred or protected by the Constitution (and in particular Art.41) and both spouses also relied on rights under art.8 of the European Convention on Human Rights. The High Court judgments differed in the conclusions reached on certain of these issues. In particular the judgments in Gorry and ABM reach different conclusions both as to the approach required by Art.41 of the Constitution and the test to be applied in considering the State’s obligations under art.8 of the ECHR. In broad approach the judgment in Ford followed that in Gorry.
Reasoning:
Finlay Geoghegan J. delivered the main judgment in each case, effectively holding that the Minister did not consider the constitutional rights of the applicants in accordance with law. It was held that an Irish citizen does not have an automatic right pursuant to the Constitution to cohabit with his or her non-national spouse in Ireland, as such a constitutional right would appear to be contrary to the inherent power of the State to control immigration subject to international obligations. This was so even if one considered that any such constitutional right was a prima facie right or was not an absolute right and may be limited. However it was held that the applicants in each case as a lawfully married couple and a family within the meaning of Art.41, and the Irish citizen spouses in each case, had constitutionally protected rights to have the Minister consider and decide their application with due regard to:
- the guarantee given by the State in Art.41.1.2° to protect the family in its constitution and authority;
- a recognition that the applicants in each case were a family, a fundamental unit group of society possessing inalienable and imprescriptible rights which rights included a right to cohabit which was also an individual right of the citizen spouse which the State must, as far as practicable, defend and vindicate (Art.41.1 and Art.40.3.1°);
- a recognition that the decision that the family should live in Ireland was a decision which they had the right to take and which the State had guaranteed in Art.41.1 to protect; and
- a recognition of the right of the Irish citizen to live at all times in Ireland as part of what Art.2 refers to as the “birth right . . . to be part of the Irish Nation” and the absence of any right of the State (absent international obligations which do not apply) to limit that right.
Finlay Geoghegan J. held that the Constitution places corresponding obligations on the Minister to take the decision as to whether or not to permit the non-national spouse of an Irish citizen reside in Ireland with due regard to each of the above constitutional rights of the applicants. However, it was accepted that the Minister, in taking the decision, may also take into account other relevant considerations in accordance with the State’s interests in the common good. Finally, Finlay Geoghegan J. held that the “insurmountable obstacles” test set out by the European Court of Human Rights remained applicable to a consideration by the Minister (if necessary) of the application pursuant to his obligations under s.3 of the European Convention on Human Rights Act 2003 having regard to art.8 of the European Convention on Human Rights relating to deportation of the non-national spouse of an Irish citizen.
The Supreme Court has granted leave to appeal in each case (Gorry [2018] IESCDET 56; Ford [2018] IESCDET 55 and ABM [2018] IESCDET 54).
Decision:
Appeals in Gorry and Ford dismissed. Appeal allowed in ABM.
