Judgment Title: U. & Ors -v- MJELR
Composition of Court:
Judgment by: Clark J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 371
THE HIGH COURT
2009 201 JR
H. U., S. W. U. AND D. U. (AN INFANT, SUING BY HIS FATHER AND NEXT FRIEND H. U.)
THE MINISTER FOR JUSTICE AND LAW REFORM
JUDGMENT OF MS JUSTICE M. CLARK, delivered on the 29th day of September, 2010
1. The applicants are a husband and wife and their infant son. The husband HU is a national of Nigeria and a failed asylum seeker while the wife SWU and son DU are Irish citizens. They challenge the validity of the refusal by the Minister for Justice and Law Reform (“the Minister”) to revoke a deportation order made in December 2008 against HU, the husband. This was the second application to revoke the deportation order and these are the second set of proceedings challenging a refusal to revoke. By order of Cooke J. dated the 15th February 2010 the applicants were granted leave to challenge the second refusal to revoke decision of January 2010.
2. In March 2010 this Court grant an interlocutory injunction restraining the deportation of HU pending the determination of these proceedings. The substantive hearing took place on the 6th and 7th May 2010. Ms Sunniva McDonagh, S.C. with Ms Patricia Brazil, B.L. appeared for the applicants and Ms Sinéad McGrath, B.L. for the respondent.
4. Upon arrival in Ireland HU moved in with his uncle who is lawfully resident with his Irish wife in Cork. That uncle completed his asylum questionnaire on his behalf. On the 7th July 2008 HU attended for interview with the Commissioner where he described himself as single and made no mention any relationship with any woman or of his intention to marry. By letter dated the 14th July 2008 the Commissioner notified him that he was making a negative recommendation in his case. The appended s. 13 report outlined various inconsistencies in HU’s account and also found that he did not fear persecution for a Convention reason.
5. The applicant says in his affidavit that sometime in July 2008 he met the second applicant SW who subsequently became his wife. Little information is provided about SW apart from the fact that she is an Irish citizen and a friend of his uncle’s wife in Cork. According to HU’s affidavit they fell in love and prior to the 15th July 2008 – that is, within one month of his arrival in Ireland and a week after his interview with the Commissioner and around the same time that HU was notified of the Commissioner’s negative recommendation and s. 13 report – they notified the Registrar that they intended to marry. HU appealed the Commissioner’s negative recommendation to the Refugee Appeals Tribunal and his appeal hearing took place on the 10th September 2008. No mention was made at the appeal hearing of his notified intention to marry. By letter dated the 25th September 2008, HU was notified that the Tribunal had affirmed the Commissioner’s negative recommendation. Notwithstanding the notification that his permission to remain was now fragile, HU married SW on the 15th October 2008. SW is described on their marriage certificate as a domestic worker born in 1988.
6. On the 24th October 2008 and one month after the notification that the appeal had failed, the Minister informed HU that he had decided not to grant him refugee status and proposed to deport him. As is usual when sending such a letter, the Minister invited HU to make representations within 15 working days of the date of the letter setting out the reasons as to why he should be permitted to remain in Ireland. No such representations were made by or on behalf of HU and the Minister proceeded to examine his file on the basis of know facts. A deportation order was made against him on the 4th December 2008 and was notified to HU on the 23rd December 2008.
7. Meanwhile by letter dated the 4th December 2008, the applicants’ solicitors informed the Minister of the fact of HU’s marriage to SW on the 15th October 2008 and stated that the couple was cohabiting at a stated address in Cork. The Solicitors sought residency rights for HU on the basis of his marriage to an Irish citizen. They furnished a copy of the passports of the husband and wife, a utility bill in the name of the wife and the couple’s marriage certificate to establish the marriage and cohabitation. The Minister was informed that “Ms W. is anxious that her husband be granted residency in the State”. The Minister replied by informing the applicants that as a deportation order had already been made, such representations could only be considered in the context of a revocation application.
Revocation Application 2009
10. The Minister’s agents examined the file in the light of those submissions and in February 2009 the Minister declined to revoke the deportation order. The representations made on behalf of the applicants were summarised and it was noted that HU had been in the State for almost eight months, “a relatively short period of time”. When considering the husband’s Article 8 rights it was observed:-
In the present case, the couple married when they were aware that the status of Mr. [U] was precarious. They must have known that Mr. [U] had no legal basis for residing in the State and therefore may be required to leave the State.
As a result of the facts outlined above, it is submitted, therefore, that in affirming the deportation order in respect of [HU], there is no lack of respect for family life and therefore no breach of Article 8.
[...] Mr. [U] married Ms. [SJW], an Irish citizen, on 15 October 2008 and it is accepted that the couple constitute a family within the meaning of Article 41 of the Constitution. According to their marriage certificate, they have been residing together in Cork.
With regards to the rights of a non-national married to an Irish citizen or a person entitled to reside in the State, it is accepted that family rights under Article 41 of the Constitution arise. However, these rights are not absolute and may be restricted. As found by the Courts, there appears to be no authority which supports the proposition that an Irish citizen or a person entitled to reside in the State may have a right under Article 41 of the Constitution to reside with his or her spouse in this jurisdiction.”
Revocation Application 2010
We submit that the applicant has substantial entitlements to remain in the Sate under the Irish Constitution and we believe that it would be a disproportionate act for the Minister to execute the deportation order against our client given the consequences which would befall his wife and child as well as the applicant. We believe that the best interests of the child Master [DU] would be served by the child being parented in the State by both parents. It would be a considerable diminution of master [U]’s right to be education in Ireland were he to be forced to leave the State so as to join his father in Nigeria.
Similarly it would be a considerable diminution of Ms. [SW]’s rights for her to be forced to leave Ireland and establish herself in Nigeria where significantly lower social standards exist as compared to Ireland.
Our client is anxious to take up employment in the State and would greatly appreciate an opportunity to do so.”
15. In any event the Minister’s agents reconsidered HU’s file, including his immigration history, in the light of his marriage to SWU and the birth of DU and the citizenship rights of each family member. The representations which had been made in 2009 and 2010 by the applicants’ solicitors were summarised fully and accurately. In considering the husband’s Article 8 right to respect for his family life, it was recorded that he had married an Irish national and that they had an Irish citizen son. It was stated that under the Nigerian Constitution, DU was entitled to citizenship of Nigeria. It was accepted that the affirmation of the deportation order would constitute an interference with the family’s right to respect for family life, but it was found that the proposed interference would not be unlawful in accordance with Article 8(2) as it was:-
2. Pursues a pressing need and a legitimate aim – i.e. the legitimate aim of the State to safeguard the economic wellbeing of the country and to maintain control of its borders and operate a regulated system for control, processing and monitoring of non-national persons in the State. It is consistent with the Minister’s obligations to impose these controls and is in conformity with all domestic and international legal obligations.
3. Is necessary in a democratic society, in pursuit of a pressing social need and proportionate to the legitimate aim being pursued within the meaning of Article 8(2).”
This is the test applied when determining whether family life can be established elsewhere. In particular, to be considered when determining whether there are any ‘insurmountable obstacles’ to establishing family life elsewhere is whether, where an obstacle exists, realistically or reasonably, it is an obstacle which is able to be surmounted.
Mr. [U] is a Nigerian national. His wife, Ms. [SW] is by virtue of the Nigerian Constitution 1999, s. III, 25(1) (c), also entitled to Nigerian citizenship. Furthermore his son [DU], by virtue of the Nigerian Constitution 1999, s. III, 25(1) (c), is also entitled to Nigerian citizenship. Mr. [U] has stated that he wishes to remain in Ireland with his wife and son. However, it is submitted that the Minister is not obliged to respect the choice of residence of Mr. [U]. The jurisprudence of the European Court of Human Rights has established that a State has a right under international law to control the entry of non-nationals into its territory, subject always to its treaty obligations.
With regards to Mr. [U]’s wife, Ms. [SW], it is submitted that she is an Irish citizen. She has been married to the applicant for the past 1 year and 2 months at the time of writing this submission. No information has been provided as to whether Ms. [W] is working in the State or how she supports herself.
Mr [U]’s son, [DU], was born in the State on 31 May 2009 and is an Irish citizen. [DU] is only 7 months of age at the time of writing this submission. It is submitted that Mr. [U[ and his wife look forward to remaining in the State together with their child. It is further submitted that it would be a considerable diminution of [DU]’s rights to be educated in Ireland were he forced to leave the State so as to join his father in Nigeria. ”
I have considered that Mr. [U], his wife, and their sons are eligible for Nigerian citizenship and therefore have the right to return and live in Nigeria as a family unit. There is nothing to suggest that there are any insurmountable obstacles to the family being able to establish family life in Nigeria.
I have considered the young adaptable age of [DU] along with the fact that he is eligible for Nigerian citizenship. I have considered these facts and how they would make moving back to Nigeria with his family, easier for [DU]. I have also considered that he would receive an education and would be able to integrate into society in Nigeria if he were to go there with his father.
It is submitted that there is no general obligation on a State to respect the choice by married couples of the country of matrimonial residence and that Article 8 does not impose on a State any general obligation to respect the choice of residence of a married couple. Furthermore, there is nothing to indicate that it would be unreasonable to expect that Mr. [U], his wife and son could establish family life in Nigeria, where they are all eligible for citizenship. Furthermore, Mr [U] has not submitted evidence of any obstacles that would hinder him returning to Nigeria and living with his family.
I have also considered the fact that given the current economic recession in Ireland and the short term forecasts of further substantial economic contraction, along with the growing unemployment in the economy and its possible effects on migrants living in Ireland, Mr [U]’s chances of obtaining employment in the current economic climate are poor. Furthermore, as already stated in this submission, in light of the rising level of unemployment in Ireland and its knock-on effect on the welfare system along with the pressure being placed on other state service providers by the economic downturn, consideration is also given to the impact of granting permission to remain to Mr. [U] on the health and welfare systems in the State and how such a decision may lead to similar decisions on other cases.”
However, these Constitutional rights of the Irish born child are not absolute and must be weighed against the rights of the State. The rights of the State include the right to control the entry, presence and exit of foreign nationals, subject to the Constitution and to international agreements. To be considered are issues of national security, public policy, the integrity of the Immigration System, its consistency and fairness to persons and to the State, as well as issues relating to the common good. Factors relating to the rights of the State have also been considered above.
It is acknowledged that as an Irish citizen, [DU] had rights of residence in Ireland, the right to be reared and educated with due regard to his welfare, the right to the society, care and company of his parents, as well as the protection of the family pursuant to Article 41. However, as the Supreme Court in Lobe and Osayunde  IESC 3, it does not flow from the rights of the child that the family or parents and siblings of Irish children have the right to reside in Ireland. The Minister may determine to deport the immigrant family, notwithstanding the effective removal of the Irish citizen child, without violating that child’s rights. While there is an obligation on the Minister to consider each case on its individual merits, he is entitled to take into account the consequences of allowing a particular applicant to remain in the State where that would inevitably lead to similar decisions in other cases. If the Minister is satisfied for good and sufficient reason that the common good requires that the non-national parent should be removed from the State, even if that means that in order to preserve the family unit the Irish citizen child must also leave the State, then that is an order he is entitled to make”.
As found by the Courts, there appears to be no authority which supports the proposition that an Irish citizen may have an absolute right under Article 41 of the Constitution to have their non-Irish national spouse reside with them in this jurisdiction. Reference is made to the consideration of the position of the couple as well as the rights of the State under Article 8 consideration above and the conclusions reached therein.”
These are substantial reasons associated with the common good which requires that the deportation order made in respect of [HU] be re-affirmed.”
The Issues in the Case
(ii) Failed to adequately consider the constitutional rights of the wife; and
(iii) Acted in breach of fair procedures by relying on the need to maintain immigration control.
25. The applicants contend that inappropriate weight was afforded to the rupture to family life which would follow if the husband were to be deported in that the Minister acted on the assumption that the mother and son would accompany the father to Nigeria. This assumption was incorrect as the mother had indicated a preference to remain in Ireland. In addition, the Minister’s finding that there was no impediment to the family “returning” to Nigeria was criticised as this, it was contended, indicated that the Minister considered this family to be an immigrant family returning to their country of origin when in fact, neither the mother nor the child has ever been to Nigeria.
26. The applicants contend that the absence or presence of insurmountable obstacles to the wife and their child following the husband to Nigeria was not the sole consideration and what the Minister should have considered in the light of Meadows v. The Minister for Justice, Equality and Law Reform (Unreported, Supreme Court, 21st January, 2010); Oguekwe v. The Minister for Justice, Equality and Law Reform  2 I.L.R.M. 481; Berrehab v. The Netherlands (1989) 11 EHRR 322 and Poku v. United Kingdom (1996) 22 EHRR CD94 was whether it was reasonable to expect the wife and child to move to Nigeria.
27. The respondent contends that the impugned decision was reasoned and balanced and must be assessed in the light of the applicants’ representations. There was nothing whatever before the Minister to suggest that it would be unreasonable to expect the wife and son to relocate to Nigeria. The wife had never stated that she would not go to Nigeria and had merely expressed a wish to raise her child in Ireland. The situation was that the applicants put a certain case to the Minister which was considered in full and upon which he reached rational conclusions. Any rupture caused to the family life of the applicants will be the result of a choice made by the wife not to follow her husband to Nigeria. The respondent relies on Abdulaziz, Cabales and Balkandali v. United Kingdom (1985) 7 EHRR 471; Omoregie v. Norway (Application No. 265/07, decision of 31st July, 2008); R (Razgar) v. Secretary of State of the Home Department  2 AC 368 and Huang v. Secretary of State for the Home Department  2 WLR 581.
(ii) The Wife’s Constitutional Rights
29. The respondent argued that if AB (Jamaica) is interpreted as requiring the Minister to exercise his imagination as to the obstacles that might be faced by an Irish citizen in Nigeria, it ought not to be followed. The respondent reminded the Court that the applicants had access to legal representation at all relevant times and they had every opportunity to put facts before the Minister which would establish that it would be unreasonable to expect her to move to Nigeria, but no such evidence was ever furnished notwithstanding two applications to revoke. The emphasis placed on the rights of wife in the present proceedings was out of all proportion to the submissions which had been made. The applicants have not identified the personal constitutional rights of the wife which would be infringed by the proposed deportation. The Minister quite correctly focussed on the family rights of the applicants instead of on the wife’s personal rights in the light of the deficit in the information before him in relation to the wife.
(ii) Reliance on Immigration Control
31. The applicants contend that the fact that HU will not have an immediate, post-deportation opportunity to apply for re-admission to Ireland distinguishes this case from R (Mahmood) v. Secretary of State for the Home Department  1 WLR 840. In that case, the deportation was enforced to prevent queue-skipping and the husband would have had an immediate opportunity to apply to join his wife. In Chikwamba v. Secretary of State for the Home Department  1 WLR 1420, the House of Lords held that while the maintenance and enforcement of immigration control was a legitimate aim of the Secretary of State’s policy in relation to Article 8 family life claims, an Article 8 appeal should not be dismissed routinely on the basis that it would be proportionate and more appropriate to apply for leave from abroad.
32. The respondent noted that in October 2008 the Minister informed HU of the options that were open to him – including the option to leave the State voluntarily. HU made no representations during the 15 days allowed to him at that time. His file was examined and a deportation order was made in December 2008. Even if the Minister had informed him in advance of the revocation applications in 2009 and 2010 that he intended to rely on immigration control, this could not have benefited HU because there was an extant deportation order. It was not open to him to return to Nigeria at that time and to apply from there to be re-admitted to Ireland on the basis of his marriage as a revocation application was first necessary.
THE COURT’S ASSESSMENT
36. Meadows did not change the law of reasonableness; it simply affirmed the role played by proportionality in reasonableness. The law is not and has never been that the Minister cannot deport the foreign national spouse of an Irish citizen or the foreign national parent of an Irish citizen. If that spouse has no legal right to remain in the State when he marries an Irish citizen or when he fathers an Irish citizen, the fact of his marriage or his fatherhood does not entitle him to a correction of his unlawful presence in the State. The case-law of the Supreme Court and a body of decisions by the High Court and the European Court of Human Rights supports that view.
37. The applicants here have placed an almost artificial emphasis on the constitutional rights of the wife which bears no relation to the huge information deficit and minimal facts placed before the Minister. It is argued that it would be unreasonable to expect the wife as an Irish national to accompany her husband to Nigeria and that deportation of the husband would thus and for that reason only be disproportionate. No other reason was given for why this should be so. An applicant is required to establish the illegality of an administrative decision challenged on the basis of a want of reasonableness or lack of proportionality. The decision of the Court of Appeal in AB (Jamaica) does not affect this requirement. That decision did not raise or establish such a proposition and the case was essentially concerned with the failure to apply domestic Home Office policy no. 3/96 which has no equivalent in this jurisdiction.
38. The relevant facts pertinent to the refusal of the Minister to revoke the deportation order is that the wife married a Nigerian national who according to the husband’s affidavit she only met at most four months before they married. It must be assumed that she was aware of his very recent arrival in the country and of his undetermined right to remain indefinitely in this State. The husband was certainly aware that his refugee claim had failed when he married. He lived with his Nigerian uncle who had filled in his asylum questionnaire so the uncle must certainly have been aware of his nephew’s precarious legal position when he married. It must have been within the contemplation of the wife that she might have to consider life with her husband in his own country Nigeria if he were refused a declaration of refugee status. It must be assumed that if, as asserted by the husband, the couple met and fell in love and chose to marry and start a family so soon after they met, their affection for each other would extend to living in Nigeria and that the marriage was not confined to living in Ireland.
39. The Court has been impressed by the extensive consideration by the Minister’s agents of the husband’s second application to revoke the deportation order made shortly after the couple’s marriage. That consideration noted every one of the relevant matters insofar as they were known to the Minister. These matters included the speed at which the couple married, the short period which had elapsed since and the fact that when they married they were aware of the husband’s precarious immigration status. DU’s young age and adaptability and the absence of anything to suggest that there were any particular obstacles to the wife and child moving to Nigeria were all considered. The Minister observed the weighty rights enjoyed by the applicants under the Constitution and under the Convention and crucially, the fact that those rights are not absolute. In the circumstances, the Court cannot identify any relevant matter that was not expressly taken into account and weighed in the balance in arriving at a decision that was reasonable and proportionate.
40. The jurisprudence of the European Court of Human Rights in relation to exclusion orders and deportation of a spouse or partner in a family unit is clear. The rights protected by Article 8 are not absolute and Contracting States enjoy a wide margin of appreciation in the manner in which immigration control is exercised. The break up of family life brought about by immigration control will almost always be lawful if the provisions of Article 8(2) are met. Those provisions are:
42. In this regard the Minister referred to the seminal case of Abdulaziz, Cabales and Balkandali v. United Kingdom (1985) 7 EHRR 471 where the Strasbourg Court considered the situation of three wives who were lawfully and permanently settled in the UK but whose husbands who lived abroad were refused permission to remain or join them in the UK. The Strasbourg Court held:
68. The Court observes that the present proceedings do not relate to immigrants who already had a family which they left behind in another country until they had achieved settled status in the United Kingdom. It was only after becoming settled in the United Kingdom, as single persons, that the applicants contracted marriage. The duty imposed by Article 8 cannot be considered as extending to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country.” (Emphasis added)
(ii) Mrs. Balkandali must have been aware that her husband's leave to remain temporarily as a student had already expired, that his residence in the United Kingdom was therefore unlawful and that under the 1980 Rules, which were then in force, his acceptance for settlement could not be expected.
In the case of Mrs. Cabales, who had never cohabited with Mr. Cabales in the United Kingdom, she should have known that he would require leave to enter and that under the rules then in force this would be refused.”
46. In this case, notwithstanding that this was a second application to revoke and notwithstanding a failed earlier legal challenge, the applicants put forward no reason why it would be unreasonable to expect the wife and child to follow the husband to Nigeria. Nothing whatsoever was put before the Minister about the wife’s personal circumstances such as her educational background, her employment status, how they were surviving economically, her employment prospects in Nigeria, her religious beliefs, her standard of living in Ireland, her family ties here, her experience of travel abroad or of any relationship with her in-laws. All that the Minister knew of the wife was that she was born in 1988, is an Irish citizen and a domestic worker, was a regular visitor to the house of HU’s uncle, that she agreed to marry HU within one month of their first meeting in 2008 and that she gave birth to their son some seven months after their marriage.
47. In the absence of relevant information the Minister was not required or indeed entitled to speculate on the wife’s circumstances. He could only act on the information that he was given and one of the assumptions he was certainly entitled to make was that the couple’s child then less than a year old could adapt to life in Nigeria.
48. In marked contrast to the lack of information furnished, the Minister gave deep consideration given to the circumstances of this young family. No attempt was made by the applicants to identify any obstacles which would make it unreasonable to expect the wife and child to relocate to Nigeria and few concrete considerations were furnished which could be weighed in the balance by the Minister when arriving at a proportionate decision. The Court is therefore satisfied that the Minister’s assessment of proportionality under Article 8 was both rational and comprehensive, that he took account of all relevant matters and properly excluded irrelevant considerations.
(ii) The Wife’s Constitutional Rights
The right to reside in a particular place of the individual's choice is not a fundamental or constitutional right of a citizen whether he be married or single. The maintenance of social order, by imposing the sanctions of the law in the administration of justice, is a fundamental right of the State and of the body of its citizens. The right, if such there be as claimed in this case, of an individual citizen by reason of marriage or family bonds to have a place of residence of his or her choice within the State, is not one that could or should prevent the imposition of the sanctions of the law in the administration of justice.”
53. The circumstances of this family are that when the deportation order was made, the fact of the very recent marriage and the wife’s pregnancy (then in its early stages) had not been made known to the Minister. Their marriage was fourteen months old when the Minister considered their second application for revocation in February 2010. The applicants entered into their marriage in the full knowledge of the husband’s precarious immigration status and, as previously stated, must have considered the possibility of enjoying their marriage in Nigeria.
54. The only submission made on the wife’s behalf at the revocation stage was that it would be “a considerable diminution of Ms. [SW]’s rights for her to be forced to leave Ireland and establish herself in Nigeria where significantly lower social standards exist as compared to Ireland”. As previously observed, no information was provided as to her social standards and the only information on SW was gleaned from passports and the marriage certificate furnished. The Minister weighed that information against the interests of the State and found that the balance weighed in favour of the deportation of her husband. The choice the wife now faces is whether to remain in Ireland and raise her son here without her husband, or relocate to Nigeria with him and raise their son together there. This is a choice faced by many couples who come from different countries or even different parts of large countries. Married inter-racial or inter-religious couples often face choices which involve compromise and sacrifices in relation to their choice of residence, standards or beliefs. Adults who marry must make these decisions themselves without seeking the answers in constitutional rights which are neither guarantees nor immunities but must be seen in the context of social order and the common good. The Court is satisfied that the applicants have not established that the Minister had insufficient regard to the wife’s constitutional rights when deciding not to revoke the deportation order made against her husband.
(iii) Reliance on Immigration Control
56. There is no suggestion that the husband did not receive the said “3 options” letter or that he could not understand the letter. He did not act upon the letter during the 15 days allowed to him and after the 15 days had elapsed, the Minister proceeded to examine the husband’s file and decided to make a deportation order. It was only after this had occurred that the applicants’ legal representatives applied for residency on his behalf. It was at this stage that the Minister informed the applicants that his application for residency based on his marriage could only be considered in the form of a revocation application because the deportation order had already been made. The Minister did not suggest that the marriage would automatically cause him to revoke the deportation order.
57. The applicants contend that the Minister ought to have informed the applicant at that time that he would not revoke the decision because he intended to rely on immigration control matters. They argue that the Minister should have told them that if the husband wished to join his spouse in Ireland, it would be more appropriate to return voluntarily to Nigeria and apply for a “join spouse” visa. This is not a weighty argument nor is there any substance to it. When the Minister wrote to the applicants in response to their request for residency rights for the husband, the Minister had no previous information of the existence of any citizen wife. This could hardly be surprising considering the very short time the applicant was in the State and his assertion in previous documents and interviews that he was single. As the Minister knew nothing of the circumstances of the marriage apart from its having taken place to SW, the appropriate and fair path to follow was to invite a revocation application so that all facts could be provided and then considered to achieve a reasonable decision on whether to uphold or revoke the deportation order. When the Minister did receive the revocation application he gave every fact due consideration, weighed them against the interests of immigration control and found in favour of immigration control. He was entitled to do so and in this case, did so in accordance with law. He did not refuse to revoke because the applicant had breached time limits relating to a possible leave to remain application.
59. In supplementary affidavits filed in these proceedings, the husband and wife attempted to provide additional information about themselves and their relationship. As this information was not before the Minister when he was considering their revocation application the Court has taken no account of those affidavits.