M.K. (Albania) v Minister for Justice and Equality


M.K. (Albania) v Minister for Justice and Equality
Respondent/Defendant:Minister for Justice, Ireland and the Attorney General
Court/s:Supreme Court
Citation/s:[2022] IESC 48
Nature of Proceedings:Judicial review
Judgment Date/s:24 Nov 2022
Judge:MacMenamin, J., Baker, M., Hogan, G., O’Donnell, D., O’Malley, I.
Keywords:Asylum Applicant, Charter of Fundamental Rights of the European Union, Child, Deportation Order, European Convention on Human Rights (ECHR), Minor (Unaccompanied)
Country of Origin:Albania

Facts: The appellant, MK, was a national of Albania and arrived in Ireland in 2016 as an unaccompanied minor. He lived with a foster family and was enrolled in school in Dublin. He applied for international protection in 2017 with the assistance of Tusla, and in 2018, he was granted permission to enter the labour market. He left school and undertook training and worked full-time in catering. Before a decision was taken on his protection application, the appellant turned 18. The International Protection Officer reviewing his case did not find the appellant’s explanation for seeking asylum to be credible or reasonable and made a recommendation under section 39(3) of the International Protection Act 2015, as amended, to refuse refugee status and subsidiary protection status. 

The appellant’s case was then considered under section 49 of the 2015 Act as to whether he should be granted permission to remain. This was refused and a deportation order followed. In making this decision, the Minister applied the ‘Razgar’ test (R (Razgar) v. Home Secretary (No. 2) [2004] 2 AC 368). This test sets out five questions to address when considering deportation, and the application of Article 8 European Convention on Human Rights (ECHR) and the right to private and family life. The Minister held that the potential interference with the exercise of the applicant’s right to respect for his private or family would not have consequences of such gravity as to engage the operation of Article 8(1) ECHR.

The applicant sought judicial review of this decision and the High Court, following the Court of Appeal’s ruling in CI & others v Minister for Justice, Equality and Law reform & anor ([2015] IECA 192), upheld the Minister’s decision, stating that “exceptional circumstances” were required in order to engage the applicant’s Article 8 ECHR rights and that he did not have a procedural right under the Constitution to a proportionality test. The applicant appealed this decision to the Supreme Court.  

Reasoning: The case concerns the rights of “unsettled” migrants in Ireland under the ECHR and the Irish Constitution in the context of deportations.   

First, the Supreme Court unanimously agreed that the Minister erred in her approach to considering the applicant’s Article 8 rights and in applying the Razgar test. It held that the method used was not in line with case law from European Court of Human Rights on Article 8, which applied a low threshold for the engagement of Article 8 rights and did not require the establishment of “exceptional circumstances” to consider engaging such rights. The Supreme Court agreed that Minister should have applied a proportionality test at the last stage of the Razgar test, as opposed to at the start, and found that the High Court judgment, in following CI, was incorrect.  

The Supreme Court was further in agreement that the applicant’s constitutional right to a private life should have been weighed by the Minister when considering deportation. However, the judges were divided as to the relationship between the Constitution and the ECHR and whether a full consideration of a constitutional issue was necessary.  

Lastly, Chief Justice O’Donnell held that the Minister erred by conducting a proportionality assessment at the second stage of the Razgar test and not the fifth stage, but that this was an error of procedure and not substance and the Minister’s decision should not be quashed. O’Malley J agreed that it was not necessary or appropriate to quash the decision. Hogan J agreed that the Minister did, in substance, conduct a proportionality assessment, as is required under Article 8(2) ECHR, and also under the Constitution. The Minister’s decision could not therefore be faulted. In turn, MacMenamin J disagreed. He held that the primary purpose of a judicial review is to prevent abuse of power and assess whether the procedure followed was correct. Central to this reasoning is the upholding of the rule of law. He opined that the Minister’s decision should be quashed. Baker J concurred with MacMenamin J.  

Decision: By a majority of 3-2 (O’Donnell C.J., O’Malley, and Hogan JJ.; MacMenamin and Baker JJ. dissenting), the Supreme Court dismissed the appeal against the High Court judgment refusing to quash the Minister’s refusal to grant permission to remain and subsequent deportation order.  

Principles:Exceptional circumstances do not need to be established for Article 8(1) ECHR rights to be engaged. A low threshold applies to engaging Article 8(1) rights. Once engaged, the decision-maker must then conduct a proportionality assessment under Article 8(2) ECHR as to whether the interference with a person’s Article 8 rights was proportionate to the legitimate aim being pursued.
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