Insufficient weight given to constitutional protection of marriage in refusing to revoke deportation orders

O'Donnell J (nem diss): Asylum and immigration - deportation order - deportation order made against non-national who has married to an Irish citizen - weight to be given to the constitutional protection of the family - marriage of Nigerian woman to Irish man - refusal by Minister to revoke deportation order - decision quashed by High Court - separation of couple following High Court decision - marriage of Nigerian man to nationalised Irish citizen - refusal to revoke deportation order - weight to be given to constitutional rights as a family - whether a right to cohabit - whether a right to decide to cohabit in Ireland - Article 41.1.1 - right of a married couple to cohabit - spousal autonomy - constitutional rights and interests affected by entry to and removal from the State - significance of marriage -

"The issue common to both cases is,therefore,the approach to be taken by the Minister when it is said, in the broadest sense, that the interests of a married couple and a family are affected by the making of a deportation order or by the decision ontherevocation of an order already madewhere,in each case,the marriage was entered after the making of a deportation order and its evasion. The outcome of both cases is,to this extent,very clear: the Minister’s approach to both cases was flawed, essentially because the Minister had treated the constitutional analysis as identical, and perhaps even subsidiary, to the analysis by reference to the E.C.H.R.
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It follows, however, that if the couple can add to the fact of marriage the evidence of an enduring relationship that if the State were to refuse the non-citizen party entry to the State for no good reason, and simply because it was a prerogative of the State, it could be said that such an approach failed to respect the rights of those involved and, in particular, the institution of Marriage.
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A different situationarises if the State’srefusal is based not simply on the fact of immigration control,but because of the immigration history of the non-Irish spouseand,in particular,if a deportation order has been made and been evaded before the marriage was entered into. Refusal to revoke the deportation order would not normally amount to a failure to vindicate the right to marry,orto respect the marriage itself or the area within the authority of the marriage, or theinstitution of Marriage. However,the length and duration of the relationship may become relevant –particularly if the relationship has endured abroad and the deportation order was a considerable time in the past."

McKechnie J (concurring): Nature of rights applicants possessed under the Constitution - constitutional, statutory and international framework - whether a positive obligation imposed on the Minister to promote or facilitate decision by a married couple to live in the state where a non-EEA national was married to an Irish citizen - whether Minister entitled to have regard to all factual circumstances when considering such residence applications - Art 41 of the Constitution - Art 8 of the European Convention on Human Rights - whether Art 41 rights were engaged - proper approach - discretion -

"It is readily apparent that by the use of these terms the drafters intended to secure for the rights of the family the maximum degree of protection available; they are not absolute rights, of course, but the stridency of the language is notable, and this must be taken into account in interpreting the Article. Moreover, merely because some of these words are rhetorical or descriptive in nature does not mean that this Court should be blind to those words, or interpret the provision as though they were not present in it."

"It could not feasibly be argued that the State may not lawfully imprison a spouse convicted of a serious crime because to do so would violate that person’s right to live with their spouse – or the corresponding right of their partner to live with them. Article 41 plainly would not support any such conclusion, notwithstanding the stridency of its terms. However, merely because the right is not absolute and may have to yield to conflicting rights and interests does not mean that the right does not exist, or that it may not be a significant one in other contexts."

"It appears to me that the practical difficulty perceived by the Minister stems from the fact that he seems to regard the issue of constitutional rights under Article 41 as something of a binary proposition: either (i) he is obliged to give effect to the family’s decision as to where to live (i.e. the family’s rights in this regard are absolute) or (ii) he is required to respect the fact of the decision but not its content (i.e. he is not obliged to give effect to the decision), which is an entitlement of such limited scope that it will not carry much weight in the balancing exercise. In other words, that the family’s choice is either decisive or effectively meaningless."

"The Minister must balance the relevant considerations to arrive at a lawful, reasonable and proportionate decision. That the starting point is recognition of the constitutional rights at play does not mean that the Applicants’ rights are afforded any presumptive priority or undue weight. The balance may well weigh in favour of the removal or exclusion of the non-national spouse."