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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> S.A. & anor -v- Minister for Justice and Equality [2015] IEHC 226 (14 April 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H226.html
Cite as: [2015] IEHC 226
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Judgment
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Neutral Citation: [2015] IEHC 226 THE HIGH COURT JUDICIAL REVIEW [2014 No. 567 J.R.] BETWEEN S. A. AND N. A. [No. 2] APPLICANTS AND
MINISTER FOR JUSTICE AND EQUALITY RESPONDENTS JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 14th day of April, 2015 1. This is an application for judicial review of the respondent’s decision refusing to revoke a deportation order made in respect of the first named applicant. S. A. arrived in Ireland in September 2008, claiming to be from Sierra Leone. He sought asylum but this was refused ultimately by decision of the Refugee Appeals Tribunal. He also sought subsidiary protection which was refused in April 2011. Permission to remain was refused in June 2011 and a deportation order was also made which obliged him to leave the State by 25th June, 2011. An application for revocation of the deportation order was submitted to the respondent Minister on 6th October, 2011. The basis of the revocation application was the marriage of the first named applicant to the second named applicant, an Irish citizen who is the mother of four children who have separate fathers. The first named applicant is not the biological father of any of these children. 2. In December 2014, this Court heard an application for an interlocutory injunction to restrain the deportation of S. A. pending the outcome of these proceedings. In the course of that application, the court at its own request heard viva voce evidence from the first and second named applicants. The court questioned the parties about the background to their relationship and made certain findings of fact which are set out in a judgment of this Court dated 14th December, 2014. As can be seen from that judgment, the parties met in July 2009, commenced a romantic relationship in the spring of 2010 and were married in August 2011. 3. At no time, according to the evidence heard at the interlocutory stage, did the first named applicant inform the woman who was to be his wife that he was a failed asylum seeker, a failed applicant for subsidiary protection, a person who had been refused leave to remain in the State and a person in respect of whom a deportation order had been made. It is accepted by the applicant that he sought international protection in Ireland on a completely false basis using a false identity which asserted that he was a national of Sierra Leone rather than his true nationality of Nigeria. The evidence at the interlocutory stage was that the first named applicant informed the second named applicant that he was an asylum seeker awaiting a decision on his application. It was also established that the second named applicant made no inquiries as to the progress of the application for asylum and married him believing that his application was outstanding and not knowing that in fact he had been refused asylum, subsidiary protection, leave to remain and that a deportation order had been made against him. It is a factor which bears on the outcome of these proceedings that the first named applicant was not truthful with the Irish authorities during the asylum process or during the revocation of deportation order process, nor was he honest with his wife. It is also a factor which has a bearing in these proceedings that his wife, who has had previous relationships with non-EU nationals, married the first named applicant, recklessly in my view, without inquiring as to the basis of his presence in the State. Her evidence, at the interlocutory stage, was that she was extremely upset to discover, on the evening of her marriage, that her husband was the addressee of a deportation order and she further stated that she would not have married him if she had known that he was facing deportation. It is a curious fact that had she known of the deportation order she would not have married him and yet she never made any inquiry as to how his asylum application was progressing. She was actively aware that his permission to be in the State was precarious, being dependent on the outcome of his asylum application. 4. No complaints were made in the proceedings with regard to the description of the application for revocation which was recorded by the Minister’s official as follows:-
6. Two grounds were permitted to be advanced by the court granting leave in respect of the decision under challenge. The first ground alleges that the decision is irrational and is based on an error of law because the constitutional rights of the applicants were not lawfully considered. In connection with this ground, it is submitted that the decision was a disproportionate one because its starting point was not an acceptance that the applicants had a prima facie right to live together as a married couple. 7. In particular, the applicants complain that there is an absence of specificity with which constitutional rights are analysed and this is said to be highlighted by the following passage in the decision:-
10. It would appear that the basis of the complaint advanced in these proceedings is that the Minister failed to consider that Article 41 of the Constitution provides a prima facie right for the applicants to reside together and that any consideration of their constitutional rights must start from that premise. Associated with that argument is the assertion that any proportionality assessment carried out by the first named respondent was unlawful because its starting point was not an express acceptance of the entitlement of the couple to reside together. 11. Although the decision maker accepts that constitutional rights arising from the marital relationship and family relationships arise for consideration, a balancing exercise takes place by weighing the asserted family and marital rights against the State’s rights in protecting its immigration system and policy. In particular, the decision maker places some emphasis on the complete failure of the applicants to bring the existence of their relationship to the attention of the Minister at the earliest possible moment. As is pointed out in the decision, although the relationship had subsisted for a considerable period prior to the deportation order, no attempt was made to inform the Minister of the existence of this new circumstance. It is to be recalled that in the period prior to the making of the deportation order, the applicant was a failed asylum seeker in a precarious position. 12. The negative light in which the alleged importance of the marital relationship is presented is said to be unlawful by reference to a decision of this Court entitled Gorry v. Minister for Justice and Equality [2014] IEHC 29. In that case, this Court criticised a decision in respect of a deportation revocation application which positively asserted that married couples did not enjoy a right to reside in the State. My view was that a married couple enjoyed that right on a prima facie basis and that it was appropriate to have regard to the circumstances of the marriage in deciding whether a right of residence sufficient to trigger revocation of a deportation order arose based upon the marital relationship. 13. In my view, it was not incumbent upon the Minister to commence an assessment of a revocation application based upon a recent marriage with an express acceptance of a prima facie right to reside together. In any event, the decision maker fully accepts that constitutional rights do arise based upon this marriage but that these are not absolute and may meet countervailing considerations which are weightier than the rights deriving from marriage and the existence of family life. It may safely be inferred that the acknowledgment of the existence of these rights included an acceptance by the Minister that the couple had a prima facie right to live together in the State. 14. I find that the manner in which the constitutional rights of the applicants were weighed was lawful and I find no fault in the absence of an express acknowledgement that this married couple enjoyed a prima facie right to live together. If I am incorrect in holding that the assessment of constitutional rights is lawful and in my finding that the decision is proportionate, I would exercise my discretion to refuse the applicants the remedies they seek owing to their conduct in respect of their marriage. I say this because information which emerged in the course of the interlocutory application was not made available to the respondent.. I refer to the failure of the first named applicant to inform the second named applicant that he was (i) a failed asylum seeker; and (ii) he was a person in respect of whom a deportation order had been made. 15. These failures suggest to me that the first named applicant was proposing to marry a person in circumstances of serious dishonesty. That this is so is borne out by the evidence of the second named applicant who informed this Court that had she known that there was a deportation order made against her then fiancé she would not have married him. In a sense, he has procured marriage by a significant deceit. Secondly, it seems that the second named applicant did not have sufficient regard or did not give consideration to the legal status of the man she proposed to marry prior to marriage. She had previously been married to a national of Sierra Leone and has had other romantic relationships with non-nationals. A marriage based on a deceit by the husband and reckless disregard as to his immigration status by the wife is a weak competitor in the contest which balances marital rights versus state rights in the field of immigration control. 16. In the decision of this Court in Gorry (supra), I refer to the difference between a marriage contracted after a night on the town and a marriage experienced over many years and whether the State would be obliged to afford equal respect to those varying circumstances. My view was that the casually contracted marriage following short relationship would not be the same as a serious bona fide marriage experienced for many years. Though the first and second named applicants do indeed, as acknowledged by the decision maker, enjoy rights associated with their marriage, the prima facie right to reside together in Ireland is one which is easily outweighed by the State’s interests in protecting its immigration policy in circumstances where the first named applicant was fundamentally dishonest by failing to reveal critical information to the woman he proposed to marry, by reference to the reckless disinterest the second named applicant had in the legal status of the man she proposed to marry and by reference to the failure of the applicants to inform the State authorities of the existence of the relationship until after the date of the marriage. 17. I refuse the applicants the reliefs which they seek. |