High Court of Ireland Decisions

Judgment Title: S. & Anor -v- MJELR

Neutral Citation: [2011] IEHC 92


High Court Record Number: 2010 1100 JR

Date of Delivery: 03/23/2011

Court: High Court

JUDGMENT of Mr. Justice Hogan delivered on the 23rd March, 2011

1. The first applicant, Mr. S., is an Irish citizen who is now aged 49 years and who lives in a town in the midlands. He has lived in Ireland all his life. He is a middle aged man who suffers from an intellectual disability and from a bi-polar disorder. He also suffers from diabetes, hypothyrodism and elevated cholesterol levels and he requires on-going medical supervision. While he has lived freely and independently in the community, he has been dependent on the daily support of a religious order to enable this to be done. He is assessed twice a month by an educational psychologist.

2. Such is the nature of his disabilities that concern has been expressed as to whether he had the requisite capacity to marry and, indeed, to understand the nature of these present proceedings. The requisite psychiatric evidence which has been commissioned following the commencement of these proceedings now clearly establishes that he has this capacity, but is nonetheless no doubt but that the first applicant is a naïve and vulnerable person.

3. The second applicant, Ms. E., is a Nigerian citizen who is now aged 24 years. She arrived in Ireland in August, 2007 and applied for asylum. This application was refused and the Minister subsequently notified her by letter dated 28th July, 2009, that it was proposed to deport her. She applied for subsidiary protection, but this was refused by decision of 30th November, 2009. The fact that deportation order had been made by the Minister was then communicated to the second applicant in December, 2009.

4. In the meantime the two applicants had first met in May, 2009. They began a friendship and a romantic relationship followed. They were married on 20th November, 2009.

5. In the wake of the marriage, the couple applied to the Minister for permission for the second applicant to reside in the State based on her marriage to an Irish citizen. Correspondence then followed whereby the applicants were urged first to apply to have the deportation order revoked. On 21st January, 2010, Ms. E. was arrested pursuant to s. 5 of the Immigration Act 1999 (“the 1999 Act”) and she was informed that her application to revoke the deportation order had been refused.

6. There then followed a series of applications to this Court. The couple’s original judicial review application (2010 No. 76 JR) was dismissed by Hanna J. on 12th March, 2010, but he continued a stay on the deportation order until 16th April, 2010. It is important to stress that Hanna J. never adjudicated on the merits of the application, as he found that they applicants had delayed unduly in making the application to quash the order. He also found that the applicants had failed to bring the fact of the marriage to the Minister in a timely fashion and had thus “drip fed” key items of information. It would appear that the Court was disposed to refuse the relief sought by reason of lack of candour on the part of the applicants.

7. In the meantime on 15th February, 2010, Cooke J. granted leave to Ms. E. to seek a judicial review of the Minister’s refusal to grant her subsidiary protection. On 15th April, 2010, Cooke J. granted an interlocutory injunction restraining Ms. E’s deportation pending the outcome of that particular challenge and it would appear that at some point shortly thereafter Ms. E. was released from custody. The substantive hearing took place on the 15th June, 2010, and on 25th June, 2010, Cooke J. delivered a reserved judgment in which he refused the relief sought: see E. v. Minister for Justice, Equality and Law Reform [2010] IEHC 249.

8. At the hearing before Hanna J. issues had been raised regarding the first applicant’s capacity to marry and, as has already been indicated, two psychiatric reports were commissioned on this topic. In the wake of these reports, the Mr. S. applied to have Ms. E.’s deportation order revoked pursuant to s. 3(11) of the 1999 Act. This application was refused by decision of 20th April, 2010, but this was not communicated to the applicants until 29th July, 2010. The applicants then immediately applied for and obtained leave to quash this decision from Peart J. on 3rd August, 2010, and this is the issue which is now before me.

9. The applicants accordingly challenge the Minister’s decision to refuse to revoke the deportation order. Before proceeding to examine this question, it is necessary first to consider an application which was made to me at the hearing for an order under s. 27 of the Civil Law (Miscellaneous Provisions) Act 2008 (“the 2008 Act”) preventing the publication or broadcasting of any material which would be likely to identify the applicant as a person having the condition in question.

Section 27 of the 2008 Act
10. Section 27(1) of the 2008 Act provides that:-

“(1) Where in any civil proceedings (including such proceedings on appeal) a relevant person has a medical condition, an application may be made to the court in which the proceedings have been brought by any party to the proceedings for an order under this section prohibiting the publication or broadcast of any matter relating to the proceedings which would, or would be likely to, identify the relevant person as a person having that condition.”

“(3) The court shall grant an order under this section only if it is satisfied that—

(a) the relevant person concerned has a medical condition,

(b) his or her identification as a person with that condition would be likely to cause undue stress to him or her, and

(c) the order would not be prejudicial to the interests of justice.”

“(a) a party to the proceedings, or

(b) a person called or proposed to be called to give evidence in the proceedings.”

14. It is plain that the making of the order would not be prejudicial to the interests of justice (s. 27(3)(c)) and, indeed, counsel for the Minister, Mr. Barron S.C., very fairly raised no objection to this application.. It is likewise clear that the identification of Mr. S. would be likely to cause him considerable stress (s. 27(3)(b)). Mr. S. deserves to be - and needs to be – protected from any form of unwelcome attention in general and from the curiosity of the prurient in particular. He is precisely the kind of litigant that the Oireachtas sought to protect via the enactment of s. 27 of the 2008 Act.

15. It was for these reasons that I made the order under s. 27 of the 2008 Act during the course of the hearing preventing the publication or broadcasting of anything which might tend to identify the first applicant.

The Personal Circumstances of the Applicants
16. At this point it seems appropriate to say something further about the applicants’ personal circumstances. So far as can be judged, there seems no reason to doubt the mutual affection which the couple profess to feel for each other or that their marriage has brought mutual happiness. In his medical report concerning the mental capacity of Mr. S., Professor Lucey, the Medical Director of St. Patrick’s University Hospital, reported that Mr. S. had described thus his relationship with Ms. E.:-

“She cares for me. She is interested in the way I dress and the way I look. She cares about my personal hygiene. She cares for me and she tidies up my flat. She has really brought me on in lots of ways. Also, I am a diabetic and she really helps me with that. She asks me to check my readings. She asks me what my readings are every day.”

18. Next, it would have to be accepted that Mr. S. could not realistically be expected to live in Nigeria with Ms. E. were she to be deported from this State. As his solicitors pointed out in correspondence, he is a person wholly dependent on disability benefit. Moreover, his medical needs are such that he is also dependent daily on a complex range of medication which would simply not be available (or, at the very least, not reliably available) in Nigeria.

The Minister’s Analysis
19. If Ms. E. were to be deported, it would in principle be permanent, subject only to the right of the Minister to revoke that order under s. 3(11) of the 1999 Act: see, e.g., MAU v. Minister for Justice, Equality and Law Reform (No.1) (Unreported, High Court, 13th December, 2010). In the file assessment which was conducted in respect of the application to revoke the deportation order the Minister considered, however, that:-

“If Mr. [S.] wished to visit Ms. [E.] in Nigeria, the option would be open to him to apply for a visa to visit Nigeria in order to see Ms. [E.]. In this respect that [Mr. S.’ solicitors] have indicated that Mr. [S.] ‘lives independently’ and ‘travels freely’.”

21. 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 as he attempted to navigate - what would be for him - the unfamiliar and enormously challenging hazards of international airports, officialdom and immigration controls if he were to attempt such a journey. 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.

22. In these circumstances, the practical effect of the Minister’s decision would be to condemn this couple to live apart, more or less permanently. It is very hard to see how such a decision would conform to the State’s obligation contained in Article 41.3.1 of the Constitution “to guard with special care the institution of marriage”, absent some compelling justification. Of course, the imperative need to uphold the integrity of the asylum system could - and often does - provide such a justification.

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.

24. It is true that the parties here married when the immigration status of Ms. E. was precarious. This is certainly a factor which the Minister can properly take into account: see, e.g., the comments of Fennelly J. in TC v. Minister for Justice [2005] 4 IR 109 at 122. In TC the Irish female had married a Romanian male in Bucharest some three months after the latter had already been deported from the State. The parties then applied to the Minister to revoke the deportation order and to permit him to reside in Ireland with his new wife. The Minister refused this application on the ground that the parties had not shown that they had lived together as part of a family unit for an appreciable time of time since the date of their marriage.

25. In upholding the Minister’s decision, Fennelly J. stressed, however, that ([2005] 4 IR 109 at 122):-

“It was, of course, for the Minister to decide how the balance should be struck between the competing considerations. In doing so, he was bound to respect the principle of proportionality. At least on the facts of this case, that obligation is no different from his obligation to act reasonably. It has not been demonstrated that the Minister gave disproportionate weight to one rather than the other consideration. He did not shut the door on the appellants. He made it clear, as appears from Mr. Mortell’s affidavit, that he remained ready to consider such further evidence as might be submitted to him on the issue of an appreciable period of cohabitation.”

27. It is true that in Omoregie v. Norway [2008] ECHR 761 the European Court of Human Rights stressed (at para. 57) that where the family life:

“was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the onset be precarious. Where this is the case the removal of the non-national family member would be incompatible with Article 8 [ECHR] only in exceptional circumstances”.

29. But even a superficial comparison with the facts of Omoregie show that the present case is quite exceptional, not least by reason of the special and vulnerable status of the first applicant. By contrast, the Norwegian spouse of the Nigerian applicant in Omoregie had already lived for several periods in another African country, namely, South Africa. The European Court expressly found (at para. 67) that “nothing should prevent the second and third applicants from coming to visit the first applicant for periods in Nigeria.” A further consideration is that the Norwegian deportation order lasted only for a maximum period of five years (para. 67). While it is true that under our system such a deportation order can be revoked at any time, it is nonetheless indefinite in principle.

30. In the earlier decision in Boultif, the European Court held (at para. 53) that it was unrealistic to expect a French-speaking Swiss national to follow her Algerian husband to Algeria were he to be deported from Switzerland. She did not speak Arabic and had no other ties with Algeria, so that the effect of that order would be to sunder entirely their family life, contrary to Article 8 ECHR. Judged by these standards, it is equally unrealistic to expect Mr. S. to even travel to Nigeria, much less take up residence there.

Conclusions
31. In these circumstances, I am driven to the conclusion that the Minister’s decision was both disproportionate and unreasonable in law. Having regard to the special facts of this case, the decision condemned this couple to the effective limbo of permanent separation. The decision accordingly struck at the essence and substance of the applicants’ family rights under Article 41 of the Constitution.

32. I will accordingly quash the Minister’s decision not to revoke the deportation order.