Middelkamp v Minister for Justice and Equality


Middelkamp v Minister for Justice and Equality
Respondent/Defendant:Jaimee Middelkamp
Court/s:Supreme Court
Citation/s:[2023] IESC 2
Nature of Proceedings:Judicial Review
Judgment Date/s:01 Feb 2023
Judge:Hogan, G. 
Category:Immigration, Residence
Keywords:European Convention on Human Rights (ECHR), Family Life (Right to), Family Unity (Right to)

Facts: The respondent is a Canadian citizen and her husband is also a Canadian national. In 2018, the respondent’s husband commenced a four-year dentistry course in University College Cork and obtained a student visa. The respondent entered the State under the Working Holiday Authorisation Scheme, with a non-renewable permission valid until 2020. At the end of 2019, she applied to the Minister for Justice and Equality to vary her permission to extend her stay in Ireland beyond the two years permitted under the Scheme. The Minister refused the application stating that the interest of public policy and the common good of maintaining immigration policy outweighed her case and that her Article 8 ECHR rights were not affected by the Minister’s decision.  

In the High Court, Barrett J. granted an order of certiorari quashing the Minister’s decision on the basis that the reasons which had been given by the Minister in respect of the refusal of the visa extension were inadequate and that the decision was flawed insofar as it appeared to deliberately give no consideration to rights derived from art.8 of the ECHR. The Minister appealed this ruling. 

Reasoning: In the Supreme Court, Hogan J first considered the interaction between the Constitution and the European Convention on Human Rights (ECHR). The Constitution, under Article 41 refers to “inalienable and imprescriptible rights” and seems to go somewhat further than the rights under Article 8 ECHR, which refers to “respect” for family life. Hogan J recalled the primacy of the Constitution and the hierarchy of norms therein. While recognising that the Constitution and the ECHR have similar aims and should interact in a positive manner, Hogan J emphasised that the Constitution remains the fundamental law and the ultimate source of human rights protection in the State.  

As to whether Article 8(1) ECHR was engaged in this case, Hogan J referred to recent jurisprudence from the Supreme Court on Article 8 rights in MK (Albania) v Minister for Justice and Equality [2022] IESC 48 and the test established therein. The Supreme Court overruled the decision of the Court of Appeal in CI v Minister for Justice, Equality and Law Reform [2015] IECA 192 and held that the Minister’s decision in the present case did engage Article 8(1) because it had serious implications for the married life of the couple. Hogan J held that, just as with MK (Albania), the implications of the Minister’s decision went  well beyond any de minimis test. As to whether the interference was necessary in a democratic society for the purposes of Article 8(2), Hogan J held that there is a strong, consistent, and weighty public interest in ensuring that the two-year nature of the Scheme is adhered to. While the Minister was in error by considering that Article 8(1) rights were not engaged, the Minister was nonetheless fully entitled to conclude that an interference with those rights was necessary under Article 8(2) ECHR.  

A final point concerned the letters attached to the High Court judgment of Barrett J. The Minister argued such summaries were unnecessary. Hogan J stated that this was a matter of personal style for a trial judge and rejected this ground of appeal. 

Decision: The appeal was allowed. The Minister’s decision did engage the applicant’s rights under Art. 8(1) of the ECHR and interfered with those rights. The effect of the Minister’s decision was to oblige the married couple to live apart for two years which was clearly an interference with their right to respect for a family life as protected by Art. 8(1) of the ECHR. However, there is a public interest in seeing that the rules of the immigration system are adhered to and are not circumvented in an ad hoc and disorderly fashion. To that extent, the Minister’s decision was fully justifiable by reference to Art. 8(2) ECHR since maintaining the integrity and coherence of the immigration system is such an important consideration that, absent exceptional circumstances, such a decision can nearly always be justified by reference to art.8(2) ECHR and will be regarded as proportionate.  Thus, while the Minister was in error in concluding that the applicant’s right to respect for her private life under art.8(1) was not engaged, the Minister was entitled to conclude that such an interference was necessary in a democratic society.  

Principles:The Minister’s decision engaged the respondents’ right to respect for family life under Article 8(1) ECHR, but interference with this right was justified as being necessary in a democratic society for the purposes of Article 8(2).
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