SA and NA v Minister for Justice and Equality (No. 2)

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Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2015] IEHC 226
Nature of Proceedings:Judicial Review
Judgment Date/s:14 Apr 2015
Category:Deportation
Keywords:Deportation, Deportation Order
URL:https://www.courts.ie/acc/alfresco/68b43286-5edf-4f62-bb2e-7e20bcc20b5f/2015_IEHC_226_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The first applicant, a national of Nigeria, was a failed asylum seeker and the subject of a deportation order. His wife was an Irish citizen. She had four children from previous relationships, none of whom had been fathered by the first applicant. He applied to revoke the deportation order and it was affirmed by the Minister for Justice. The analysis noted the contents of the request for revocation, which contended that the first applicants were in a loving and stable relationship, that the first applicant was a father figure to his wife’s children, and that his wife was in poor health. The analysis accepted that the applicants enjoyed family rights but noted that they were not absolute and, in the circumstances, yielded to the State’s right to uphold immigration controls.

The applicants challenged that decision and obtained leave on two grounds: first, that it was irrational and based on an error of law because the constitutional rights of the applicants were not lawfully considered; and, secondly, that it was disproportionate because it failed to take as its starting point that they had a prima facie right to live together as a married couple.

The court upheld the decision.

Reasoning:
Relevant to the court’s deliberations was the fact that the first applicant falsely claimed protection in the State on the basis that he was a national of Sierra Leone. Furthermore, at no stage prior to his marriage did he inform his wife that he had unsuccessfully sought protection in the State and was the subject of a deportation order. He had led her to believe that he had an application for asylum extant and she was not aware of his true status. She had relationships with other third-country nationals before she met the first applicant and had married him without inquiring as to the true basis of his presence in the State. She said in evidence that, had she known of the deportation order, she would not have married him.

The court held that the applicants’ constitutional rights as a married couple and as a family had been fully and properly considered, and that it was irrelevant that the analysis did not refer to particular provisions of the Constitution. It noted that the analysis had noted that they enjoyed constitutional rights arising from their relationship, and that they were not absolute. The first ground was therefore not made out.

The court held that the second ground of challenge was not made out either. It was not incumbent upon the Minister to commence an assessment of a revocation request which had been based upon a recent marriage by noting expressly a prima facie right on the part of the married couple to reside together. In any event, the court noted that, given that the analysis acknowledged the existence of constitutional rights deriving from marriage and the existence of family life, it was to be inferred that the Minister accepted that the couple had a prima facie, albeit qualified, right to live together in the State.

The court held that, even if it were wrong in that regard, it would refuse relief to the applicants based upon their conduct in respect of their marriage. Information which emerged during an earlier interlocutory application for an injunction about their relationship had not been made known to the Minister, namely the failure of the first applicant to tell his wife that he was a failed asylum seeker and a person in respect of whom a deportation order was extant. The court took the view that he had been proposing to marry his wife without being honest with her. She, in turn, had given insufficient regard to his status when contemplating marriage to him, which was reckless given her earlier relationships with non Irish-nationals. They only notified the Minister of the existence of their relationship after their marriage had been contracted. In all the circumstances, their right to live together was outweighed by the State’s interests in controlling unlawful immigration.

Decision:
The court therefore refused the reliefs sought.

Principles:

It is not necessary for the Minister for Justice, when considering family circumstances in the context of deportation, specifically to refer in her analysis to provisions of the Constitution or the ECHR.

It is not incumbent upon the Minister to commence an assessment of a request for revocation of a deportation which is based upon a recent marriage by noting expressly a prima facie right on the part of the married couple to reside together.

A court may refuse to quash a deportation order in respect of a person married to an Irish national based on their conduct in respect of their marriage, such as where the subject of the order had proposed to marry his spouse without being honest with him or her about his or her status in the State, or where the spouse had given insufficient regard to the non Irish-national’s status when contemplating marriage to him or her.

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