No error in Minister’s proportionality assessment in refusing to revoke deportation order

Judicial review – asylum and immigration – Nigerian couple are challenging the decision of the Minister for Justice refusing to revoke the deportation order made against him - entered into what is referred to as a “religious marriage”, which is said not to have been legally binding – he was refused asylum – she was granted leave to remain – his application for subsidiary protection was refused – she was granted Irish citizenship – deportation order made against him – failed to present himself to GNIB – made application to revoke deportation order – entered into civil marriage - Minister was informed that the wife was pregnant – refused application to revoke - refused to grant an injunction restraining deportation – deported – whether the Minister failed to recognise the nature and strength of the applicants’ rights under Article 41 – argued that the proportionality analysis fails to begin from a recognition of the right of a mixed Irish and non-Irish nationality couple seeks to live in Ireland - no automatic obligation on a State to respect the choice of place of residence decided upon by a particular family - voluntary assumption of risk - precarious immigration status - it would be destructive of any ordered immigration control system if a person could convert his or her prima facie illegal status into a prima facie legal one merely by the expedient of either getting married or entering into an art. 8 type relationship with a person who has an entitlement to be in the State – whether there is an error in the Minister’s reasoning - the Minister’s analysis is sensitive to the possibility that Article 41 rights exist, although they are not absolute - the State has an entitlement to give effect to the immigration control system - court should only intervene if the Minister’s assessment is clearly unlawful – separation of powers - a person with no right or entitlement to be in the State does not generate such a right merely by going through a ceremony of marriage - the balancing exercise is not unlawful or disproportionate – whether the decision invalid by reason of the use of an “insurmountable obstacles” test – they objected to the Minister’s analysis because it included the phrase that there were no “insurmountable obstacles to the applicants’ relationship continuing if the deportation was effected” – High Court previously found that there is no “insurmountable obstacles” test - Minister argued that this is essentially a semantic difference - the insurmountable obstacles test is “derivative language which can only be understood in the context of all of the cases from which it is derived” -not for an applicant, or indeed the High Court, to dictate to the Minister how she should phrase her decisions - insurmountable obstacles question has been set out in numerous decisions - the question of insurmountable obstacles is just one of a basket of criteria or questions that can be asked as to the overall circumstances - absence of insurmountable obstacles does not and should not guarantee rejection of a claim - a decision is not invalid simply by referring to insurmountable obstacles - there is clearly nothing preventing the family from relocating as a family to Nigeria – whether the decision is invalid for failure to have regard to the non-EEA family reunification policy document.