PS & BE v Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:High Court
Nature of Proceedings:Judicial Review
Judgment Date/s:23 Mar 2011
Judge:Hogan J.
Keywords:Deportation, Deportation Order, Family Life (Right to), Immigration
Country of Origin:Ireland and Nigeria
Geographic Focus:Ireland

P.S. was an Irishman who suffered from an intellectual disability, bi-polar disorder and a number of other chronic medical conditions requiring on-going medical supervision. He lived in the midlands and received the daily support of a religious order. In May 2009 P.S. met B.E., a Nigerian asylum seeker, and in November 2009 they were married. In December 2009, B.E.’s claim for asylum was rejected and a deportation order was made against her. An application was made for revocation of the deportation order, but this was refused and B.E. was arrested in anticipation of deportation. B.E.’s deportation was delayed by a number of ultimately unsuccessful High Court challenges to the legality of her deportation. Another application for revocation of the deportation order was made in March 2010 and this was refused in April 2010. The Minister noted that if P.S. wished to visit B.E. in Nigeria, the option would be open to him to apply for a visa to visit Nigeria in order to see her. The Minister noted that P.S.’s solicitors had indicated that he ‘lives alone’ and ‘travels freely.’ The Applicants obtained the leave of the High Court to challenge, by way of judicial review, the Minister’s refusal to revoke the deportation order on the grounds that the Minister failed to have adequate regard to the couple’s right to family life under the Constitution and the ECHR and that the Minister’s conclusion that P.S. could visit his wife in Africa was unreasonable.

In delivering the judgment of the High Court on the substantive application for judicial review, Hogan J. found that the Minister’s assessment of the possibility of P.S. visiting his wife in Nigeria was ‘entirely unrealistic and totally unbalanced’ having regard to his capacity and his medical condition and his general vulnerability. The Court observed that the practical effect of the Minister’s decision was to condemn the couple to live apart permanently and that this failed to conform with the State’s obligation under Article 41.3.1 of the Constitution to guard with special care the institution of marriage absent some compelling justification. The Court warned that Constitutional rights could not be treated by the Minister as if they were mere discards from dummy in a game of bridge in which the Minister as declarer has nominated the integrity of the asylum system as the trump suit. In the present case, the Court concluded that disproportionate weight had been given to the need to maintain the integrity of the asylum process and that the entire assessment of the position of the parties in general was unbalanced. The Court held that the Minister’s decision was both disproportionate and unreasonable in law and that it struck at the very essence and substance of the applicants’ family rights under Article 41 of the Constitution. Accordingly, the Minister’s decision not to revoke the deportation order was quashed by order of certiorari.


The requirement that the Minister must balance competing rights necessarily involves a recognition that, important as the principle of maintaining the integrity of the asylum system undoubtedly is, it must sometimes yield to countervailing and competing values, one of which is the importance of protecting the institution of marriage

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