The Court of Appeal has overturned the Minister for Justice’s refusals to allow the non-Irish national spouses of three Irish citizens either enter or remain with them in the State.
In significant judgments with implications for couples in similar circumstances, the three judge court ruled the refusals were “legally incorrect” because the Minister failed to proper consider the marital family rights of the Irish citizen spouses under Article 41 of the Constitution.
The appeals concerned three High Court decisions in three separate cases, two of which quashed the Minister’s refusals, while one upheld the refusal.
The appeals were heard together as they all involved Irish citizens lawfully married to non-EU or EEA spouses — Nigerian in all three cases — and raised similar issues.
The court had to consider the appropriate approach to be taken when making an immigration decision concerning a non-national spouse of an Irish citizen in circumstances where the Irish citizen relied on rights under the Constitution, particularly Article 41, and both spouses relied on family life rights under Article 8 of the European Convention on Human Rights.
Ms Justice Mary Finlay Geoghegan, Ms Justice Mary Irvine and Mr Justice Gerard Hogan all agreed the Minister did not consider the constitutional rights of the couples in accordance with law.
While an Irish citizen has no automatic constitutional right to co-habit with their non-national spouse here, the appellants, as a lawfully married couple and family within the meaning of Article 41, and the Irish citizen spouse as an Irish citizen, have constitutionally protected rights to have the Minister decide their applications with due regard to a number of factors, Ms Justice Finlay Geoghegan said.
Those included the State’s guarantee under Article 41 to protect the family and a recognition the couple are a family with inalienable and imprescriptible rights including to cohabit, which is also an individual right of the Irish citizen spouse which the State must, as far as practicable, defend and vindicate.
'Birth right '
The Minister must also recognise the family’s decision they should live here is one they have a right to take and which the State has guaranteed under Article 41 to protect. The Minister must further recognise the Irish citizen’s right to live in Ireland as part of what Article 2 refers to as their “birth right..to be part of the Irish Nation” and the absence of any right of the State to limit that right.
The Minister must have due regard to those constitutional rights but may also take into account other relevant considerations in accordance with the State’s interests in the common good, she said.
If the Minister, having considered the constitutional rights, decides to refuse permission, he must then consider the claims under Section 3 of the 2003 Act by reference to Article 8 ECHR.
In his concurring judgment, Mr Justice Hogan said the Minister appeared to have treated Article 41 as having the same legal status and content of Article 8.
The ECHR in itself is not part of domestic law and has rather been given effect to by the ECHR Act 2003 which makes clear the Constitution “has primacy as far as protection of fundamental rights are concerned”.
The first case was by an Irish man and Nigerian woman who met here in 2006 after she failed to present for deportation under a deportation order made in 2005. They married in Nigeria in 2009 but she was refused a visa to re-enter the State. Because they have separated, the Minister does not have to reconsider their application.
The second case was by a Nigerian woman who has Irish citizenship and her Nigerian husband who has been deported. The court directed them to reapply to the Minister for revocation of deportation and for a visa for him to come and remain here and said their application must be considered in accordance with law, all current facts relating to the couple and their child born here, and the relevant State interests, the court said.
The third case was by a female Irish citizen and her Nigerian husband who was refused a visa to enter the State. Because a decision is pending on a fresh application by him for a visa, the court said it would not remit the matter to the Minister but would quash the earlier refusal.
