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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Khan & ors -v- Minister for Justice and Equality [2014] IEHC 533 (14 November 2014)
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Cite as: [2014] IEHC 533
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Judgment
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Neutral Citation: [2014] IEHC 533 THE HIGH COURT JUDICIAL REVIEW [2014 No.176 JR] BETWEEN VICTORIA KHAN (NEE ASHMORE), JOSHUA LEVIS (A MINOR) AND ARABELLA LEVIS (A MINOR) SUING BY THEIR NEXT FRIEND AND MOTHER, VICTORIA KHAN AND MUHAMMAD KHAN APPLICANTS AND
THE MINISTER FOR JUSTICE AND EQUALITY RESPONDENT JUDGMENT of Mr. Justice Noonan delivered the 14th day of November 2014 Introduction Factual Background 3. On the 26th May 2009, Mr. Khan applied for asylum. On the 4th August 2009, the Office of the Refugee Applications Commissioner recommended refusal of his application. The decision highlighted a number of significant credibility issues and noted that the applicant had waited almost two and a half years after arrival in the State before applying for asylum and said the following:
‘The applicant without reasonable cause, failed to make an application as soon as reasonably practicable after arrival in the State.’ 5. On the 14th December 2009, the Tribunal affirmed the refusal. In its analysis of the claim, it was again found that there were serious credibility issues arising. Some of the documents submitted by Mr. Khan in support of his account were found to contradict it and other aspects of the account were found to be neither credible nor plausible. The Tribunal found that considering the credibility issues that arose, the documentation was not sufficiently compelling to overturn the Commissioner’s recommendation which was affirmed. 6. This decision was notified to Mr. Khan at Flat 2, 10 Lower Rathmines Road, Dublin 6 an address he had furnished to the immigration authorities. It was not thereafter challenged. 7. On the 28th January 2010, Mr. Khan was advised that the Minister proposed to make a deportation order in respect of him and he was advised of his options including the right to apply for subsidiary protection and leave to remain. On the 18th February 2010, the RLS applied on Mr. Khan's behalf for both of those reliefs. 8. In or about June 2010, Mr. Khan met Mrs. Khan for the first time while he was working, it appears unlawfully, at a fast food restaurant in Bagnelstown not far from where she lived in Carlow and they became romantically involved. It appears that in or about January 2011, Mr. Khan was working in a kebab shop in Bray, again unlawfully, where he resided for about a year and a half while dividing his time between there and Mrs. Khan's house in Carlow. Neither address was notified to the immigration authorities. On the 27th May 2011, Mrs. Khan provided a character reference for Mr. Khan in which she said:
He wishes to continue his education here in Ireland which would be beneficial towards our future together.”
11. On the 28th September 2012, Mr. and Mrs. Khan made an appointment with the registrar of marriages for County Carlow to formally notify their intention to marry. On the 4th October 2012, Mr. Khan reported a lost Garda National Immigration Bureau ("GNIB") card and gave his address as 10 Lower Rathmines Road. On the same date, he signed a change of address form for the Refugee Applications Commissioner giving the same address. 12. On the 8th October 2012, Mr. Khan was notified that the Minister had refused his applications for subsidiary protection and leave to remain. This decision was not challenged. On the 10th October 2012, the appointment with the marriage registrar took place and on the 19th October 2012, the Minister made a deportation order in respect of Mr. Khan. 13. On the 24th October 2012, it would appear that the couple purchased an engagement ring and on the 1st November 2012, Mr. Khan was notified of the making of the deportation order by registered post at his address at Rathmines. He was instructed to present himself to the GNIB on the 20th November 2012 to facilitate his removal from the State. He received this notice. On the 4th December 2012, the GNIB classed Mr. Khan as a deportation evader after he failed to sign on as he was required to do. 14. On the 11th January 2013, Mr. and Mrs. Khan married. Mr. Khan’s address on the marriage certificate is stated to be in Bray, Co. Wicklow. His explanation for this is that his address was taken from his driving licence obtained several years earlier. 15. On the 14th January 2013, Mrs. Khan wrote to the Minister asking him to revoke the deportation order on humanitarian grounds. On the 28th January 2013, the RLS made an application to the Minister pursuant to s. 3(11) of the Immigration Act 1999 for revocation of the deportation order. The RLS based the application on the ground that when the Minister made the deportation order, he was on notice of the fact that Mr. Khan was in a relationship with an Irish citizen whom he intended to marry and the Minister had failed to take these changed circumstances into account. It is now accepted by the applicants that the Minister was not on notice of these facts, although through no fault of Mr. Khan. 16. On the 2nd April 2013, Mr. Khan was arrested by the GNIB at the house in Carlow and detained in Cloverhill Prison. Mr. Khan retained new solicitors to act on his behalf and they wrote to the Minister on the 5th April 2013 making further submissions in relation to the outstanding revocation application. On the 9th April 2013, Mr. and Mrs. Khan commenced judicial review proceedings in this court seeking to quash the deportation order. 17. On the 22nd April 2013, the Minister refused to revoke the deportation order. On the 23rd April 2013, Mr. Khan applied for an injunction to restrain his deportation which application was refused. He was deported the next day, the 24th April 2013, to Pakistan, where he remains. 18. The judicial review proceedings came on for hearing on the 29th July 2013 and were compromised on the 31st July 2013. The terms were reduced to writing and included an agreement by Mr. Khan to make a fresh application for revocation in consideration of which the Minister agreed that Mr. Khan would not be prejudiced by any omission in submitting information regarding his relationship and intended marriage at an earlier time. 19. A new revocation application was duly made on the 21st August 2013 and an examination of file carried out by the Minister's officer on the 5th December 2013, which recommended refusal. The decision ran to some 29 pages. On the 16th January 2014, Mr. Khan was notified that the Minister refused to revoke the deportation order. On the 24th March 2014, McDermott J. granted leave to Mr. Khan to apply for a judicial review of the Minister's decision. Submissions
22. It was further argued that there was a failure to adequately consider the representations made on behalf of the applicants, to adequately weigh and consider the best interests of the children, to reach a proportionate decision and conduct a fair balancing exercise of rights under Article 41 of the Constitution and Article 8 of the European Convention on Human Rights which were conflated by the Minister. It was said that the Minister was operating a discriminatory regime for Irish citizens married to non-nationals as compared to EU nationals married to non-nationals. The applicants also argued that the Minister was in error in concluding that there was no less restrictive process available other than affirming the deportation order and he ought to have considered amending it to provide for a temporal limit as well as considering the alternative possibility of imposing conditions on Mr. Khan's residence in the State so as to render a proportionate decision. 23. In summary therefore, the applicants' case was that the balancing exercise of the respective rights of the parties and the State was carried out erroneously and a disproportionate decision was arrived at. 24. Counsel for the Minister, Ms. McGrath BL, submitted that the applicants' submissions chose to entirely ignore the factual reality of the case. She argued that the court had a limited and clearly defined role in reviewing a decision by the respondent to refuse revocation and the applicants' case in reality was a disagreement with the balance struck by the respondent between the rights of the parties, rather than the decision being demonstrably wrong. She submitted that particularly where the immigration status of one spouse is precarious at the time of marriage, the Minister's discretion to revoke a deportation order could only be reviewed in exceptional cases and this was not such a case. The Law 26. Further to this advice, the couple went to Nigeria where they married on the 19th September 2009. In December 2009, they applied for revocation of the deportation order and for a visa for Mrs. Gorry to enter the State. This was refused. In March 2010, Mr Gorry suffered a heart attack and had a coronary stent inserted. He was found to have an 80% blockage of one of the coronary arteries. His doctors advised him against travelling to Nigeria because it would have presented a significant health risk for him. 27. In November 2010, Mr. and Mrs. Gorry made a new application for revocation of the deportation order based on the new medical facts in relation to Mr. Gorry. Two medical reports in relation to Mr. Gorry were submitted to the Minister, one of which indicated that it would be ill-advised for him to live in Nigeria. In July 2012, the Minister refused to revoke the deportation order. His decision made no reference to the critical medical report implying that it had not been received despite clear correspondence from Mrs. Gorry indicating that she had sent it. This appeared not to prompt any enquiry by the Minister. This was stated by the court to be of "some significance" (p. 5). 28. The country of origin information supplied by the Gorrys indicated that coronary procedures such as angioplasty, which Mr. Gorry might require if he had a further heart attack, were not available in Nigerian hospitals. The decision maker concluded "...it is not accepted that it has been shown that there are any insurmountable obstacles for Mr. Gorry to settle in Nigeria, or that treatment for his medical conditions would not be available there." 29. The court found that there were two difficulties with this conclusion. First, it applied the wrong legal test, the court holding that there was in fact no such test based on "insurmountable obstacles" as described. Secondly, it was manifestly irrational to conclude that the applicants had not established that treatment for Mr. Gorry's condition would not be available in Nigeria. 30. The court was clearly of the view that both of these errors were fatal to the decision to refuse revocation. 31. Mac Eochaidh J. went on to separately consider the applicants' argument regarding Article 41 of the Constitution. He considered many of the leading cases involving marriages between nationals and non-nationals and said (at p. 22):
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 the file says: "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. Reference is made to the consideration of the position of the couple, as well as the rights of the State under Article 8 consideration and the conclusions reached therein." 44. This is a mistaken understanding of the law. The starting point in any consideration where a mixed Irish and non-Irish nationality couple seeks to live in Ireland is that they have a prima facie right to do so by virtue of Article 41 of the Constitution. It is recalled that Article 41.3 pledges the state to guard with special care the institution of marriage. The circumstances of the marriage will indicate whether that right is engaged. If engaged, the state is entitled to supervise the right by requiring an entry visa for the non-national, for example. The mere fact that it is engaged does not mean that it cannot be trumped by a lawful countervailing purpose which must ensure that the denial of the right of residence is proportionate to the policy objective sought to be achieved. As Denham J said in Meadows v Minister for Justice [2009] IESC 3 " when a decision maker makes a decision which affects rights then, on reviewing the reasonableness of the decision: (a) the means must be rationally connected to the objective of the legislation and not arbitrary, unfair or based on irrational considerations; (b) the rights of the person must be impaired as little as possible; and (c) the effect on rights should be proportional to the objective." In my view, the Minister and the officials erred in failing to acknowledge the rights which the applicants enjoyed. It was wrong to start the analysis of the constitutional position by denying that there were any constitutional rights to reside with one's spouse involved." 33. It is axiomatic that the mere fact of marriage between an Irish citizen and a non-national cannot of itself give rise to any automatic or absolute right for the couple to reside in the State. There are a plethora of authorities supportive of that proposition and Mac Eochaidh J. refers to many of them in Gorry. Whilst as he says there may be a prima facie right arising, not every set of circumstances engages that right. The drive-in marriage in Las Vegas he instances exemplifies a situation where the right would be unlikely to be engaged. Another example is to be found in the judgment of Fennelly J. in Cirpaci v. The Minister for Justice Reform [2005] 2 ILRM 547 at p. 557:
30. 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." (Emphasis supplied).
1. Mr. Osheku is not a citizen of Ireland. 2. Mr. Osheku is, and at all times has been, an alien to whom the Aliens Act, 1935, and the statutory orders made thereunder apply and have applied. 3. On the 11th June, 1979, Mr. Osheku was permitted to land and remain in Ireland for one month on condition that while in Ireland he would not take up employment. 4. The conditions for his entry and limited stay in Ireland were known to, clearly understood by, and accepted by Mr. Osheku at the time of his entry into Ireland. 5. In breach of the conditions of his lawful entry into Ireland Mr. Osheku remained without lawful authorisation in Ireland after the 11th July, 1979. 6. In breach of the conditions of his lawful entry and permitted presence in Ireland Mr. Osheku engaged in employment in the State. 7. After the 11th July, 1979, Mr. Osheku’s presence in Ireland was to his knowledge in breach of the conditions accepted by him. 8. Save in respect of the periods from the 11th June, 1979, to the 11th July, 1979, and the period between the 15th March, 1983 and the 30th April, 1983, Mr. Osheku’s continued presence in Ireland was to his knowledge contrary to law. 9. Mrs. Osheku is an Irish citizen who while still a minor was married with Mr. Osheku in Dublin on the 26th June, 1981. 10. A son, the third plaintiff, was born to Mr. and Mrs. Osheku in Dublin on the 4th June, 1982, and he is an Irish citizen. 11. On the 26th June, 1981, and at all times subsequent, including the 4th June, 1982, Mr. Osheku’s presence in Ireland was in breach of the conditions to which he submitted and was without lawful authority to his knowledge. 12. Mr. Osheku’s continued presence in Ireland subsequent to September, 1981, was known to Mrs. Osheku to be in breach of the conditions of his lawful entry and permitted presence in Ireland. I am satisfied upon the evidence that at all times material to the issues in this action Mr. Osheku:- (a) was aware of the nature of the legal requirements for his lawful entry into and continued residence in the State; (b) knew that he was acting in breach of the law by taking employment in the State and continuing to reside, without authority, in the State whether in employment or not; (c) knowingly took the risk that he might at any time lawfully be deported from the State; (d) prior to consulting his solicitor he endeavoured by deceit to avoid what he expected would be the legal consequences of his unlawful actions. At all material times subsequent to the 11th July, 1979, and more particularly subsequent to the 30th April, 1983, Mr. Osheku was liable to and lawfully could be deported from Ireland.”
40. This appears to be consonant with European jurisprudence as discussed by the United Kingdom Supreme Court in the judgment of Lord Phillips of Worth Matravers MR in R (Mahmood) v. Secretary of State for the Home Department [2001] 1 WLR 840 in which he said:
44. The European Court of Human Rights made the following observation at p.497: ‘Moreover, the Court cannot ignore that the present case is concerned not only with family life but also with immigration and that, as a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory.’ 45. The Court went on to attach significance to the fact that, at the time of each marriage, the wife had been aware that the husband was unlikely to be granted leave to remain in the United Kingdom. 46. In these circumstances, the Court went on to hold that there was no ‘lack of respect’ for family life and, hence, no breach of Article 8 taken alone. 47. Poku v United Kingdom (1996) 22 EHHR CD 94 involved an application to the Commission in respect of a decision to deport Ama Poku, a citizen of Ghana, who had overstayed her leave to remain. She was joined in her application to the Commission by six members of her rather complex extended family, all of whom had a right to reside in the United Kingdom. These included her second husband, her three children, one of whom, Michael, was by a previous marriage, and Sarah, a daughter of her second husband by a previous marriage. They all complained that the deportation of Ama Poku would interfere with their right to their family and private lives under Article 8. The arguments of the applicants and the reaction of the Commission appear in the following passages from the report, at pp CD 97-CD 98: ‘The applicants emphasise that they are all British citizens or have a permanent right to reside in the United Kingdom, save Ama Poku. Previous cases relied on by the Government involved the situation where neither parent had the right to remain and were being deported. Further, it is not reasonable to expect the applicants to continue their family life in Ghana since the older children are well settled into the educational system; Michael will lose regular contact with his father; Samuel Adjei will lose his legal residence rights in the United Kingdom and also lose contact with Sarah, his daughter by a previous marriage. The Commission recalls according to its established case law that, while Article 8 of the Convention does not in itself guarantee a right to enter or remain in a particular country, issues may arise where a person is excluded, or removed from a country where his close relatives reside or have the right to reside… However the Commission noted that the State’s obligation to admit to its territory aliens who are relatives of persons resident there will vary according to the circumstances of the case. The Court has held that Article 8 does not impose a general obligation on States to respect the choice of residence of a married couple or to accept the non-national spouse for settlement in that country (Abdulaziz, Cabales and Balkandali judgment (1985) 7 EHRR 471, para. 68). The Commission considers that this applies to situations where members of a family, other than spouses, are non-nationals. Whether removal or exclusion of a family member from a Contracting State is incompatible with the requirements of Article 8 will depend on a number of factors: the extent to which family life is effectively ruptured, whether there are insurmountable obstacles in the way of the family living in the country of origin or one or more of them, whether there are factors of immigration control (e.g. history of breach of immigration law) or consideration of public order (e.g. serious or persistent offences) weighing in favour of exclusion… As regards her husband, Samuel Adjei and their two children, Jason and Jermaine, the Commission notes that there are no obstacles effectively preventing them from accompanying Ama Poku and establishing their family life in Ghana. The Commission has had regard to the adaptable ages of the children, aged four and one respectively. As regards however Samuel Adjei’s relationship with his daughter Sarah by another marriage, the Commission observes that if he decides to accompany Ama Poku, his wife, this will interrupt the frequent and regular contact which he enjoys with Sarah who lives with her mother in the United Kingdom. The Commission recalls however that Samuel Adjei and Ama Poku married in August 1994 when she had already been subject to immigration proceedings and a deportation order had been served. He must accordingly be taken to have been aware of her precarious immigration status and the probable consequential effects on his other family relationships by the enforcement of the deportation order. While his daughter Sarah may also claim that her family life is affected and cannot be said to be in the same position as her father, the Commission consider that her situation also flows from the choice exercised by her father rather from any direct interference by the State with her family relationships… The Commission finds that there are no elements concerning respect for family or private life which in this case outweigh the valid considerations relating to the proper enforcement of immigration controls. It concludes that the removal does not disclose a lack of respect for the applicants’ rights to family or private life as guaranteed by Article 8(1) of the Convention.’
47. The competing and conflicting considerations which may arise in such decisions were summarised by Lord Phillips of Worth Matravers M.R. in [Mahmood]. Fennelly J found them very useful in [T.C.], as do I. In the summary, at p.861, Lord Phillips M.R. states:- ‘From these decisions I have drawn the following conclusions as to the approach of the Commission and the European Court of Human Rights to the potential conflict between the respect for family life and the enforcement of immigration controls: (1) A state has a right under international law to control the entry of non-nationals into its territory, subject always to its treaty obligations. (2) Article 8 does not impose on a State any general obligation to respect the choice of residence of a married couple. (3) Removal or exclusion of one family member from a State where other members of the family are lawfully resident will not necessarily infringe Article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family. (4) Article 8 is likely to be violated by the expulsion of a member of a family that has been long established in a state if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled. (5) Knowledge on the part of one spouse at the time of marriage that rights of residence of the other were precarious militates against a finding that an order excluding the latter spouse violates Article 8. (6) Whether interference with family rights is justified in the interests of controlling immigration will depend on (i) the facts of the particular case and (ii) the circumstances prevailing in the State whose action is impugned.’ The above summary is addressed primarily to the issue of family re-unification, whereas this case is centred on the issue of the Irish born child’s rights, but the principles overlap and are helpful to the analysis.” 43. The same approach is to be found in the judgment of the ECHR in Rodrigues da Silva v The Netherlands [2007] 44 EHRR 34, where the court said:
‘On its face, this provision confers a broad discretion, to be exercised in accordance with general principles of law, interpreted in the light of the Constitution and in accordance with fair procedures.’ 63. The exercise of this power does not strike me as the making of a ‘policy’ decision but rather involves the exercise of a margin of appreciation related to the facts of individual cases. That discretion was clearly left by the Oireachtas to the Minister. 64. As Keane C.J. stated in Baby O. v. The Minister for Justice Equality and Law Reform at p. 184:- ‘It was entirely a matter for the first respondent to determine whether the circumstances relied on were such that he was obliged to revoke the deportation order already made. I was satisfied that neither the High Court nor this court on appeal had any jurisdiction to interfere with the first respondent's determination that the change of circumstances referred to would not justify him in revoking the deportation order.’ 65. In the more recent case of Irfan v. The Minister for Justice and Equality (Unreported, High Court, 23rd November, 2010) Cooke J. stated:- 66. ‘In effect the power of the Minister under s. 3(11) to revoke an order exists in order to permit the Minister to accommodate circumstances which have arisen since the making of the order and which give rise to a material change such that it becomes either illegal (by reason of the intervention of one of the prohibitions on refoulement) or inappropriate on humanitarian grounds or otherwise to implement the valid order. The obligation of the Minister in dealing with an application to revoke an order has been dealt with in a number of cases and is well settled at this stage. (See for example the judgment of O'Neill J. in Dada v. Minister for Justice, Equality & Law Reform (Unreported, High Court, 3rd May, 2006); of MacMenamin J. in Akujobi and Anor v. Minister for Justice, Equality & Law Reform [2007] IEHC 19; and O.O. & Anor. v. Minister for Justice, Equality & Law Reform [2008] IEHC 325). This court summarised the position as gleaned from that case law in a judgment of 17th December, 2009 in M.A. v. Minister for Justice, Equality & Law Reform :- 'When an application to revoke is made to the Minister under s.3(11) of the Act, the Minister has, in effect, two duties. He is required to consider carefully and fairly the reasons that are put forward for revocation; and he must also verify that since the deportation order was made, no change of circumstance has occurred, either so far as concerns the applicant or the situation in the country of origin, which would bring into play any of the statutory prohibitions on the return of a failed asylum seeker to the country of origin… Otherwise … in dealing with an application to revoke, the Minister is not obliged to embark on any new investigation or enquiry; nor is he obliged to enter into any exchange of observations and replies or into any debate with the applicant or the applicant's legal representatives or even perhaps to supply any extensive narrative statement of his reasons for refusal. Once it is clear to the court that the Minister has properly discharged those two functions, a decision to refuse to revoke a valid order of deportation will not be interfered with." 67. Therefore, the Minister's obligation under s.3(11) is 'to accommodate circumstances which have arisen since the making of the order' and his jurisdiction in this regard to do so may be considered to be 'well settled'.” 46. In Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 IR 701, the Supreme Court considered the duties of the Minister in weighing the factors set out in s. 3 (6) of the Act before making a deportation order. Murray CJ said (at p. 734):
51. The applicants identify a single sentence in the decision under challenge which was found in Gorry to contain an error of law which vitiated the decision and submit that the same result must ensue here. 52. Rights do not exist in a vacuum and the court cannot ignore the factual matrix within which such rights are said to arise. In Gorry, although Mrs. Gorry was the subject of a deportation order, she and her husband sought advice from the immigration authorities as to how they might regularise their situation before proceeding to marry. Having taken that advice, Mrs. Gorry followed it and voluntarily left the jurisdiction. She and her husband married in Nigeria and subsequently sought a visa which was refused. Thereafter, Mr. Gorry became seriously ill and his medical condition clearly constituted changed circumstances to which the Minister had to have regard in considering an application to revoke the deportation order. 53. The facts here are very different. Unlike Gorry, Mr. and Mrs. Khan voluntarily elected to bring about the changed circumstances which are now claimed to bestow rights which the Minister has failed to respect. I do not believe that the Minister can be expected to be blind to the fact that at virtually every turn, Mr. Khan chose to ignore the law. 54. He came to Ireland as a student and when his visa expired, he remained unlawfully in the State until he eventually and very belatedly sought asylum on grounds which were found to be manifestly not credible. He then sought subsidiary protection and leave to remain and failed on largely the same grounds. He challenged none of these findings. 55. He continued to work unlawfully in the State throughout this process. He furnished an address to the immigration authorities where he now says he did not live and offers the explanation in his affidavit that he maintained this address because he was living between Bray and Carlow in a temporary arrangement. This temporary arrangement lasted some eighteen months according to Mr. Khan and he then moved in permanently with his future wife in Carlow. Yet, months later, he again told the authorities that he was living in Rathmines and it appears that registered mail addressed to Mr. Khan was received and signed for by someone at this address. This mail ultimately made its way to Mr. Khan at a time when he says he was long since living in Carlow. 56. This appears to admit of only two possibilities. Either Mr. Khan was living in Rathmines and not in Carlow as he claims or alternatively he was deliberately seeking to mislead the authorities as to his whereabouts to evade potential deportation. Either way it seems to me somewhat unreal to criticise the Minister for viewing the facts alleged by the applicants with some scepticism and for placing too much emphasis on Mr. Khan’s precarious immigration status in coming to his conclusions. 57. Even taking the applicants’ case at face value, at the time their relationship commenced, Mr. Khan was a failed asylum seeker who was liable to deportation but had a subsidiary protection and leave to remain application pending. It is difficult to conceive that Mr. Khan would not have known, or been so advised by his lawyers, that his chances of success were slim at best having regard to the unchallenged credibility findings already made against him in the asylum application. It must be remembered that Mr. Khan is highly educated, has studied law at post-graduate level and came from an affluent background. 58. Therefore, Mr. and Mrs. Khan embarked on a relationship which they must have known from the outset was potentially liable to end in permanent separation particularly as Mrs. Khan made clear throughout that she never had any intention of leaving Ireland with her children who were deeply rooted here. Although Mr. Khan apparently instructed the RLS in January 2012 that he wanted to marry his Irish fiancée, a further year elapsed before the marriage took place at a time when he was actively evading a deportation order long since in the offing. 59. It seems to me that the facts in this case do not bear comparison to the facts in Gorry. Whilst on one view it might be said that the comments of Mac Eochaidh J. regarding the error of law in the sentence complained of were not necessary to dispose of the matter having regard to his earlier findings, I readily accept and respectfully agree with his analysis of the Article 41 rights that arose in that case. 60. Whilst the same error is replicated in this case, it does not seem to me on the facts to be such an error as to invalidate the balancing exercise undertaken by the Minister here. He was still entitled to come to the view that even where Article 41 and Article 8 rights arose and were engaged, the countervailing interest of the State in maintaining the integrity of the immigration process ought to prevail over those rights. 61. As to the issue of possible discrimination against the applicants vis-à-vis other EU nationals living lawfully in the State, I can see no relationship between such a scenario and the facts of this case, as Mr. Khan was not lawfully in the State at the time of his marriage. The applicants suggested further that the Minister erred in failing to adequately address the country of origin information and properly consider whether it was reasonable to expect Mrs. Khan and her children to relocate to Pakistan. However, it seems to me that this criticism is somewhat hollow in circumstances where Mrs. Khan made it clear from the outset that she never contemplated relocating, because her family and extended family all lived in the locale, her children were firmly settled in local schools and had regular contact with their father here as well as their grandparents, cousins and aunts and uncles. Therefore, relocating was never on the agenda for Mrs. Khan and there seemed little point in the Minister considering it further than he did. 62. The applicants also argue that the Minister failed to consider the possibility of amending the deportation order to provide for a temporal limit and that coupled with the possibility of imposing conditions on Mr. Khan’s residence in the State meant that the Minister fell into error in concluding that there was no less restrictive process available than a deportation order being in effect a life long ban on entering the State. Even if the Minister has the power to amend the order in the manner contended for, which must be open to considerable doubt in the light of the dicta of Hogan J. in M.A.U. v. The Minister for Justice, Equality and Law Reform [2010] IEHC 492 (at paras.12-13), he was entitled to conclude in his absolute discretion that it was neither necessary nor appropriate to do so. 63. Insofar as conflation of Article 41 and Article 8 is concerned, both were separately considered and a conclusion arrived at which appears to me to be within jurisdiction. Conclusion 65. The applicants carry the onus of establishing that there was patent and clear error in the Minister’s decision and in my view they have not discharged that burden. In the final analysis, it seems to me that the applicants’ complaints are in reality that the Minister attached too much weight to some factors and too little to others. Those are areas exclusively for the Minister’s discretion into which the court cannot and should not stray. 66. I will accordingly dismiss this application. |