S anor -v- MJELR
Neutral citation IEHC 92
High Court
Judgment was delivered by Mr Justice Gerard Hogan on March 23rd, 2011.
Judgment
The decision of the Minister for Justice to deport the Nigerian wife of a man with mental and physical disabilities was disproportionate and unreasonable in law, as it would have led to the couple’s permanent separation and struck at the essence and substance of their rights under Article 41 of the Constitution.
Background
The applicant, Mr S, is Irish, aged 49 and suffers from an intellectual disability, bipolar disorder, diabetes, hypothyrodism and high cholesterol. While living independently, he needed the assistance of a religious order. Concern was expressed about his capacity to marry and to understand the nature of the proceedings, and a psychiatric evaluation was commissioned which confirmed that he did have this capacity, though he was a “naive and vulnerable person”.
Ms E is a Nigerian citizen aged 24 who had arrived in Ireland in August 2007 and applied for asylum, which was refused and a decision was made to deport her. She was informed of this in December 2009.
In the meantime she had met Mr S in May that year and they formed a relationship. They married in November 2009 and applied to the Minister for permission for her to live in Ireland as the wife of an Irish citizen.
She applied to have her deportation order revoked, but this was refused and she was arrested in January 2010. They then began judicial review proceedings which, after a number of applications, including an injunction restraining the deportation, came before Mr Justice Hogan.
Mr Justice Hogan granted an application to prevent the publication of any details that would lead to the identification of the parties due to Mr S’s medical condition.
Mr Justice Hogan said there seemed to be no reason to doubt the mutual affection which the couple professed to feel for each other or that their marriage had brought mutual happiness. In his medical report on Mr S, the medical director of St Patricks University Hospital had quoted Mr S describing the manner in which Ms E cared for him, his personal hygiene and his health. He said it was equally plain he was enormously distressed when she was imprisoned for a number of weeks awaiting deportation.
Mr Justice Hogan pointed out that the Minister had not sought to suggest that the couple were not validly married and living together as man and wife.
He said it would also have to be accepted that Mr S could not realistically be expected to live in Nigeria with Ms E were she deported, as he was wholly dependent on disability benefit and also on a complex range of medication which would simply not be reliably available in Nigeria.
In his analysis, the Minister had stated that Mr S could apply for a visa to visit Nigeria in order to see Ms E, pointing out that his solicitors had said he lived independently and travelled freely. Mr Justice Hogan said this assessment “is entirely unrealistic and totally unbalanced”.
The Minister gave no consideration as to how he could afford the trip, given that he was wholly dependent on disability benefit. The statement that he lived independently and travelled freely was taken wholly out of context and referred only to travel to the towns in the immediate vicinity of his home.
“That could not in any sense be understood as suggesting that Mr S could travel independently to Nigeria . . . [and] the risk to his health would be considerable,” he said. “A person such as Mr S would, moreover, be liable to fall victim to the snares of the malevolent and the worldly wise who might be tempted to exploit his innocent vulnerability.
“These considerations are so manifestly obvious that I will merely say that it is most surprising that they do not feature at all in the Minister’s analysis.”
The practical effect, therefore, of the Minister’s decision was to condemn the couple to live apart permanently. “It is very hard to see how such a decision would conform to the State’s obligation contained in Article 41.3.1 ‘to guard with special care the institution of marriage’, absent some compelling justification,” he said.
Decision
While the need to uphold the integrity of the asylum system could provide such a justification, the task of the Minister was to balance potentially competing interests in a proportionate and fair manner. Important as the integrity of the asylum system was, it must sometimes yield, if only perhaps in unusual and exceptional cases, to countervailing and competing values, one of which was the importance of protecting the institution of marriage, he said.
The rights conferred by Article 41 could not be treated as “mere discards in a game of bridge in which the Minister as declarer has nominated the integrity of the asylum system as the trump suit”.
It was hard to avoid the conclusion that disproportionate weight was 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 and Mr S in particular was unbalanced.
It was true that the European Court of Human Rights had stated that, where the immigration status of one party was precarious, the removal of the non-national from the host state would only be incompatible with their family rights in exceptional circumstances. But this case was exceptional, and its facts differed from those of the cases cited from the ECHR.
In all the circumstances, the Minister’s decision was both disproportionate and unreasonable in law, and Mr Justice Hogan quashed his decision not to revoke the deportation order. The full judgment is on courts.ie
Michael Lynn BL, instructed by Carley Connellan, for Mr S; Michael McNamara BL and Sunniva McDonough SC, instructed by Sarah Ryan, for Ms E; Niall O’Hanlon BL and Robert Barron SC, instructed by the Chief State Solicitor, for the State.