Judgment Title: Gorry & anor -v- Minister for Justice & Equality
Neutral Citation:  IEHC 29
High Court Record Number: 2012 859 JR
Date of Delivery: 30/01/2014
Court: High Court
Composition of Court:
Judgment by: Mac Eochaidh J.
Status of Judgment: Approved
Neutral Citation:  IEHC 29
THE HIGH COURT
[2012 No. 859 J.R.]
IFEYINWA GORRY AND JOSEPH GORRY
THE MINISTER FOR JUSTICE AND EQUALITY
JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 30th day of January 2014
1. Decisions to remove or exclude from the state non-nationals married to Irish nationals require the balancing of the public interest in maintaining immigration control and the private interests of the individuals to live together in Ireland. There are many decisions, from the common law jurisdictions and international courts which have described the balancing exercise required to be undertaken and the principles which apply to this exercise. Ultimately, as Bingham L.J. said in E.B. (Kosovo) v. Secretary of State for the Home Department  UKHL 41 :
3. The applicants and the respondent agree that marital, family and private life rights are not absolute, in that frequently such rights must surrender to the countervailing right of the State to assert immigration control and permit serious interference with those rights. The issue for decision in this case is whether the State authorities lawfully engaged in a balancing exercise of the competing rights which resulted in a refusal to revoke the Deportation Order made in respect of the first named applicant.
5. The applicants say (and this is not denied) that they received advice from the Immigration Office in Dublin that they should marry in Nigeria and then apply for a visa for the first named applicant to enter the State. The applicants went to Nigeria on 15th September 2009, and were married there on 19th September 2009. The first named applicant applied for a visa to enter the state and applied for the revocation of the Deportation Order in December 2009. This was refused on 3rd February 2010.
6. In March of the same year, the second named applicant went to Nigeria to visit his wife. He found the visit very difficult because of the heat and humidity in Lagos. He returned to Ireland on 20th March. On 23rd March, the second named applicant suffered a heart attack. He has averred that he was treated by angioplasty and that a coronary stent was inserted in St. James’s Hospital in Dublin. He has also averred that he was told that he had an 80% blockage in one of his coronary arteries.
7. The second named applicant elaborates upon the difficulties presented by his heart disease as follows:
13. By letter of 20th July 2012, the Irish Naturalisation and Immigration Services (INIS) informed the first named applicant that the Minister refused to revoke the Deportation Order. Attached to the letter was a “Consideration of Application”. This assessment of the revocation application was conducted by an Executive Officer in the Repatriation Unit and endorsed by a Higher Executive Officer and by a Principal Officer.
14. It is of some significance that the assessment of the application refers only to the short medical report of Dr. Hamad in respect of the second named applicant’s cardiac incident but does not refer to the short but detailed note from Dr. Purcell. The assessment says:
17. The assessment of application is then considered under Article 8 of the European Convention on Human Rights. It is well to recall the terms of that provision as follows:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
20. In another section of the country of origin information, reference is made to the conclusion that “Despite the limitations of Nigeria’s healthcare system, a large number of diseases and conditions can be treated, including heart conditions, high blood pressure, Polio, Meningitis, HIV/Aids, Hepatitis, Sickle Cell Anaemia, Diabetes, Cancer and Tuberculosis”. With respect to heart disease, the country of origin information is as follows:
22. The assessors referred to R (Mahmood) v. Secretary of State for the Home Department (ibid), where Lord Philips in the Court of Appeal summarised the principles which emerged from the European Court of Human Rights, in a passage frequently referred to by Irish decision makers. He listed six principles, the third one being:
25. It is clear that the two conclusions are linked. The respondent is of the view that there is a burden on an applicant to demonstrate an insurmountable obstacle to moving to Nigeria and where the obstacle is said to be the illness of the person who might move to a new country, it must be shown that there is no treatment available for that illness and the absence of such treatment constitutes the insurmountable obstacle.
26. Since the decision of the Court of Appeal in Mahmood in 2001, the Superior Courts of England and Wales have brought further clarity to the dicta of Philips L.J. I have already referred to a passage from a decision of the House of Lords in E.B. (Kosovo). I wish to refer to a more extensive passage at para. 12 of the judgment, where Lord Bingham, addressing the theme of family rupture caused by immigration requirements, said:
28. Shortly after the decision of E.B. (Kosovo), the Court of Appeal had a further opportunity to consider the appropriate approach to the question of whether family rupture can be avoided by family reunification in the country of the removed or excluded person.
29. In V.W. (Uganda) and A.B. (Somalia) v. The Secretary of State for the Home Department  EWCA Civ 5, the Court of Appeal addressed a complaint that an inferior tribunal had made a material error of law by using an “insurmountable obstacles” test. Sedley L.J., having quoted the passage I have set out at para. 28 and using the same italicisation said as follows:
32. Closely connected with this failure is an error of law demonstrated by the respondent’s statement that the applicants failed to show that there was no treatment available for his medical condition in Nigeria. The respondent’s second conclusion follows inexorably from the first and where the first is condemned, so too is the second. I do not detect any effort by the respondent to evaluate the seriousness or the nature of the heart disease suffered by the second named applicant. As is indicated by the country of origin information, there are many sorts of heart disease, but even a layman could detect from the amount of information supplied by the applicants (even assuming that that Dr. Purcell’s report had not been submitted) that the second named applicant has heart disease caused by significantly blocked coronary arteries. Again, it is common knowledge that treatment for this disease involves angioplasty or heart bypass surgery and it was indicated in the country of origin information that these procedures are not available in Nigeria. Thus, even if the applicants were required to show that the second named applicant had a medical condition for which there was no treatment available, in my view, it would be irrational to say that they failed to so demonstrate.
33. I wish to emphasise that my conclusion on this point is that having regard to the basis upon which the revocation application was advanced i.e. the medical condition of the applicant, it was incumbent on the respondent to make clear findings as to what that medical condition was (based on the information which had been supplied) and then to carefully assess whether treatment would be available in Nigeria to a retired man on a relatively modest income such as the second named applicant. It is regrettable that the respondent did not at least contact the applicants to say that they had received only one medical report which made no mention of a heart attack or a blocked artery or heart surgery, though these are expressly mentioned by the first named applicant in her application and there is a reference to a medical report detailing heart surgery in the reminder letter. As Bingham LJ said in EB (Kosovo) “… there is in general no alternative to making a careful and informed evaluation of the facts of the particular case.” In my view the evaluation of the medical facts was suboptimal.
34. In view of debate as to whether the insurmountable obstacles test is a correct approach in cases such as these, it seems appropriate that I should have regard to the decision of Clark J. in Alli and Alli v. Minister for Justice, Equality and Law Reform  IEHC 595. It is of some significance that in the Alli case, counsel for the respondent Minister agreed that the House of Lords in EB (Kosovo) and other cases clarified that the ultimate question in cases such as these is whether the family cannot reasonably be expected to enjoy their family life elsewhere. Clark J. explains that Lord Philips in Mahmood used the phrase “insurmountable obstacles” based on the jurisprudence of the European Court of Human Rights. Clark J said:
36. I have considerable sympathy for decision makers in the Minister’s office or in inferior tribunals who seek to track the many statements by judges in numerous jurisdictions about the correct approach to proportionality in these circumstances. It is not surprising that some decision makers have mistaken the words of Lord Philips in Mahmood as an expression of a pure test, whereas, in fact, it is derivative language which can only be understood in the context of all of the cases from which it is derived. It is language best avoided in performing a proportionality exercise.
Article 41 of the Constitution
However, it is equally clear that the first respondent is entitled and obliged to take into account a variety of factors in coming to his view. Those factors can include the duration of the marriage or relationship concerned, the circumstances in which it commenced and the status of the non-national at that time and a variety of other factors identified in the authorities.”
23. In this regard, the task of the Minister is to balance potentially competing interests in a proportionate and fair manner. It is true that there is a considerable public interest in deterring illegal immigration and the Minister must naturally be prepared to act to ensure that the asylum system is not manipulated and circumvented. Nevertheless, the requirement that the Minister must balance competing rights necessarily involves a recognition that, important as the principle of maintaining the integrity of the asylum system undoubtedly is, it must sometimes yield - if only, perhaps, in unusual and exceptional cases - to countervailing and competing values, one of which is the importance of protecting the institution of marriage. The rights conferred by Article 41 of the Constitution are nevertheless real rights and must be regarded as such by the Minister. They cannot be treated as if, so to speak, they were mere discards from dummy in a game of bridge in which the Minister as declarer has nominated the integrity of the asylum system as the trump suit.”
43. Having reviewed the relevant legal principles I now turn to examine the manner in which the assessors reviewed the circumstances of this marital couple. The Assessment of File says:
45. Insofar as the consideration of the couple’s Article 41 rights were made referable to the consideration of the couple’s rights under Article 8 of the European Convention on Human Rights, I have already indicated that the incorrect test was used to assess those rights and therefore that error is infused into the consideration of the couple’s constitutional rights.
46. The conclusion reached in the Assessment of File is as follows:
49. Reference is made to Smith v. The Minister for Justice and Equality  IESC 4 in this regard. Mr. and Mrs. Smith were Nigerian nationals who arrived in the State in 2002. They had four children one of whom was an Irish national and three of whom have been granted permission to reside in the State. Mr. Smith left the State in 2002 and travelled to the United Kingdom. He was convicted of serious criminal offences and sentenced to seven years imprisonment. He was deported to Nigeria in July 2005, having served part of that sentence. He re-entered the State in 2006. The Minister made a Deportation Order against Mr. Smith and one of his sons which was not challenged. Two unsuccessful revocation applications were made by Mr. Smith. He was eventually deported in March 2012. The proceedings were taken by the six-member family, saying that the deportation violated their family rights. Leave to seek judicial review was refused in the High Court on the basis that no significant new circumstances had arisen which would have justified the revocation. It was found that there had been a correct balancing of rights under Article 8 of the European Convention and Article 7 of the European Charter. However, the High Court decided that had a stateable case been made out, Mr. Smith’s history of immigration violation amounted to “compelling reasons why the court should exercise the discretion to refuse to entertain the application”.
50. Though the Supreme Court agreed with what Cooke J. said about discretion to refuse reliefs, the Supreme Court’s approach is markedly different. Clarke J. said:
6.5 When coupled with Mr. Smith's other wrongdoing in respect of the immigration system as outlined by the trial judge, it seems to me that this is the kind of case where, on the facts, there could only be one answer if the matter was referred back to the Minister. The Minister would be almost certain to, and would be well justified in, concluding that, even if there were new circumstances, same could not outweigh the extraordinary weighty balance against revoking Mr. Smith's deportation, which stems from his own reckless disregard of the rights of his own family members.”
53. The situation of the present applicants is not comparable. The applicants themselves acknowledge that there has been a breach of immigration law. There is no question of non-immigration related criminality or any disregard for the family and marital rights sought to be asserted. If anything, the first named applicant demonstrates devotion to her husband, and as a couple they demonstrate commitment to their marriage and thus to the rights which they seek to assert. It should also be recalled that the first named applicant eventually complied with the Deportation Order and voluntarily left the State. In addition, the couple followed the advice of the INIS that they should marry in Nigeria.
54. I reject the contention that these proceedings constitute an abuse of process. No litigation misconduct has been demonstrated. The unlawful behaviour of the first named applicant does not seem to me to be of the order which would attract the exercise of discretion such as to disentitle her from reliefs. I also bear in mind that the second named applicant is guilty of no wrongdoing. It is essentially his circumstances which were central to the Minister’s decision.
55. In those circumstances, it would be wrong to excuse the unlawful decision by the Minister and his officials concerning the circumstances of the couple, and in particular, of the second named applicant by reference to the misconduct of the first named applicant. The unlawful entry to the State might never have happened had her bona fide revocation application been assessed lawfully. I decline the invitation of the respondent to exercise the discretion to refuse reliefs.
56. In these circumstances, I make an order of certiorari quashing the decision of the respondent to affirm a Deportation Order made against the first named applicant on 20th July 2012. I grant a declaration that the legal and constitutional rights of the applicants have been infringed by the failure to acknowledge, weigh and consider those rights.