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The Supreme Court has unanimously dismissed the appeal of the Minister of Justice on the annulment of refusals to allow the Nigerian spouses of two Irish citizens to enter or remain with them in the State.
In important rulings with implications for at least 30 similar cases and for couples in similar circumstances, the five-judge court ruled that the Minister did not adequately consider or weigh the constitutional rights of the couples involved in accordance with the law.
The resources focused on how the constitutional protection of the family, in particular articles 41 and 42, should be applied in such immigration cases.
The court had to consider what approach the Minister should take when making an immigration decision concerning a non-national spouse of an Irish citizen when the latter is based on the rights enshrined in the Constitution, in particular Article 41, and both spouses they are based on the rights to family life under Article 8 of the European Convention on Human Rights.
Family
Four judges agreed on a particular approach that the minister should take when asked to revoke a deportation order issued against a non-Irish citizen who has married an Irish citizen, creating a family within the meaning of Article 41.
That approach was established in a ruling by Judge Donal O’Donnell, with which Judge John MacMenamin, Judge Elizabeth Dunne and Judge Peter Charleton agreed.
In a separate ruling, Judge William McKechnie set out an alternative approach, but his colleagues disagreed in particular with his conclusion that an Irish citizen has a constitutional right to choose to live with his spouse in Ireland, a right that deserves the “more high level of protection in a modern democratic society “.
If that conclusion were given full effect, there could be “far-reaching implications for a wide range of decisions,” Judge O’Donnell said.
The Minister, when considering a request for revocation of deportation on the grounds of a subsequent marriage, is not obliged to do so on the basis that Article 41 protects an “inalienable, imprescriptible or inalienable right” to cohabitation of a married couple who have right to the highest level. protection available in a democratic society, the judge said.
Article 41 protects “a zone of life and family affairs” and decisions on immigration and deportation are not matters within the authority of the family, he said.
However, the Minister must in any case take into account the rights of an Irish citizen to reside in Ireland and to marry and found a family.
Institution of marriage
The Minister must also take into account the State’s obligation to “take special care” of the institution of marriage; to the fact that cohabitation, the ability to live together, is “a natural incident of marriage and family” and that deportation will prevent coexistence in Ireland and can make it “difficult, burdensome or even impossible” elsewhere for as long time as the order remains in place.
The test under the ECHR should not be applied in considering matters under the Constitution, he said.
While the Constitution and the ECHR together provide broad overlapping protection for families and marriage, the different contexts need to be recognized, not least because of the “high position” that is given to marriage in the Irish Constitution that grants the right of a citizen to reside in his country. own country a “particular weight”.
The Minister’s decision will depend on factors including whether a family can be said to be long established in the State, whether the marriage was contracted after a deportation order was issued and having knowledge of that order, and the circumstances that resulted in deportation, which may include circumstances in the State you seek to deport.
These considerations did not arise directly in any of the cases before the court, he noted.
One case involved an Irish man and a Nigerian woman who met here in 2006 after she failed to appear for deportation under a deportation order issued in 2005. They were married in Nigeria in 2009, but she was He was denied a visa to re-enter the state. Because they have since separated, the Minister does not have to reconsider their request.
The second case involved a Nigerian woman who has Irish citizenship and her Nigerian husband who had been deported. The COA had ordered them to reapply for revocation of the deportation, saying their request must be considered in accordance with the law, all current facts relating to them and their Irish-born son, and relevant state interests.
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