Supreme Court of Ireland Decisions

Summary

THE SUPREME COURT

 

S:AP:IE:2021:000064

     [2022] IESC 48

 

O’Donnell C.J.

MacMenamin J.

O’Malley J.

Baker J.

Hogan J.

 

 

BETWEEN:

 

 

MK (ALBANIA)

 

APPELLANT

 

AND

 

 

MINISTER FOR JUSTICE & EQUALITY

 

RESPONDENT

 

 

 

 

 

 

Judgment of Mr. Justice John MacMenamin dated the 24^th day of November, 2022 

 

Introduction

1.         This judgment is given in conjunction with that delivered in the linked case of ASA v. The Minister for Justice & Equality (S:AP:IE:2021:000070) (“ASA”). The two appeals were heard sequentially, as there was an overlap in the issues raised in the two cases. In this appeal (“MK”), the appellant raised two main issues. The first, a systemic challenge to the respondent Minister’s administration and operation of the International Protection Act, 2015 (“the Act”), is addressed and determined by the ASA judgment.

2.         A second issue which arises in this appeal, however, is distinct, and may be of some significance beyond this one case. It concerns the rights of unsettled migrants under the Constitution and The European Convention on Human Rights (“ECHR”) when the respondent Minister is considering leave to remain and deportation decisions on foot of procedures outlined in the Act.

3.         For clarity, as made clear in ASA, the decision in question was not made by the Minister personally, but by officials acting in the service of the Minister in the way described in the judgment in ASA.

4.         The orders under consideration are a review of the decision made under s.49(4) of the Act refusing the appellant leave to remain in the State, which was made on 25^th November, 2019 and notified to the appellant on the 4^th December, 2019, and the subsequent decision by the Minister made pursuant to s.51(4) of the Act, to deport the appellant dated 4^th February, 2020 issued to the appellant on the 17^th February, 2020.

5.         This appeal does not concern the constitutionality of an Act or provision. Instead, it concerns the Convention and constitutional rights of unsettled migrants. The issues arise on the basis of an important judgment of the Court of Appeal (CI v. Minister for Justice [2015] IECA 192, [2015] 3 IR 385). The appellant submits this judgment was wrongly decided in part. Though he submits that CI considered certain judgments of the European Court of Human Rights (“ECtHR”), the judgments in question did not represent the clear and consistent jurisprudence of the Strasbourg court. For that reason, the first area under consideration is whether CI was correctly decided, and if not, the consequences which should follow under the Constitution.

Article 8 ECHR

6.         While the guarantees contained in the ECHR hardly need repetition, the wording, sequence, and scope of the protection, and its limitations, are all material to the issues in this appeal.

7.         Article 8(1) provides that everyone has the right to respect for his private and family life, his home and his correspondence. The right arises in a wide variety of fields of application, from privacy in the sense of physical, psychological or moral integrity of an individual; to protection of good name and reputation, identity and autonomy; home and family life, and includes such issues as legal privilege. Its relevance in the present digital era is obvious.

8.         The issues in this appeal, generally, arise under the rubric of “private and family life” in the ECtHR jurisprudence. In certain instances, there will be an overlap between the rights held by an individual, and the rights of a person as a member of a family, but this will not always be so.

9.         Unlike Article 3 (Torture and Inhuman and Degrading Treatment), however, Article 8 does not contain an absolute protection. It is, in that sense, a right qualified by the limitation clause contained in Article 8(2).

10.       Referring to the Article 8(1) right in the singular, Article 8(2) limits the scope of the protection. It provides that there shall be no interference by a public authority with the exercise of the 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. This limitation clause is, therefore, also quite expansive. It expresses the sovereignty rights of contracting states which subscribe to the Convention. How these two provisions are to be balanced in the case of the appellant, an unsettled migrant, lies at the centre of this appeal.

11.       The question of scope arises in a further sense. This appeal concerns the extent to which the case law of this State in this field reflects  ECtHR jurisprudence. As is now well-established, the Convention does not take direct effect within this State. The manner in which it applies is laid down in the European Convention on Human Rights Act, 2003 (“the ECHR Act”) and in the jurisprudence of this Court, namely, JMcD v. PL [2010] 2 I R 199 and described more recently in the judgments delivered by the Court in Simpson v. The Governor of Mountjoy Prison [2020] 3 I.R. 113. In considering ECtHR principles or guidelines, the courts of the State will have regard to the principles enunciated in the consistent case law of the court in Strasbourg. For reasons set out later, I would take the view that the appeal falls to be decided by reference to the ECHR Act. I consider that significant question later.

12.       The features of the Article 8 right in question in this case fall to be considered where, on the one hand, each person is said to enjoy the right as defined, albeit delimited, but where each member state has the entitlement to control its own borders and, for that purpose, implement its own laws within those boundaries. The factual circumstances of the Article 8 case law on deportation reflects the wide variety of human experience, in an era where migration is often not a choice but a necessity caused by war or persecution. But, as the ECtHR has consistently asserted, these cases must be seen in the context of the principle that migrants are not entitled to a choice of their country of residence.

Characterisation

13.       As in much court litigation, the way in which the issues are characterised is quite telling. As defined on behalf of the appellant MK, the question for this Court to determine was whether, in his case, “exceptional circumstances” must be established before he was entitled to a proportionality assessment under Article 8 ECHR. Alternatively, his counsel put the case another way: whether exceptional circumstances fall to be considered, in the context of a proportionality assessment in order to determine whether there has been a breach of Article 8 ECHR rights. The term, “exceptional circumstances”, is therefore of some significance, both in its meaning and application. By contrast, counsel for the respondent Minister defined the issue as being one whether, in the absence of exceptional circumstances being established, an unsettled migrant was entitled to such a proportionality assessment.

14.       At first sight, any distinction between these various characterisations might seem merely a matter of semantics, and perhaps inconsequential. But as will become apparent, the variations are significant; and bear upon the manner in which first instance decision-makers, and later, courts, should address the issues which arise for consideration concerning an “unsettled migrant” the subject of deportation. In this case, that term can be understood as referring to the appellant who, having unsuccessfully applied for international protection in the form of asylum or subsidiary protection, and having been refused leave to remain, is without authority to continue residing in the State, and is now subject to the deportation order, the validity of which is challenged. As now this judgment seeks to explain, the central issue is less about characterisation than whether the manner in which the Minister made the decisions under challenge complied with the law.

Razgar and subsequent UK Case Law

15.       As a starting point, it is necessary to say something about the approach which decision-makers in this State have adopted in applying Article 8 in cases such as this. For some years, both first instance decision-makers and courts in this State have referred to the judgment of R (Razgar) v. Home Secretary (No. 2) [2004] 2 AC 368 (“Razgar”). There, speaking on behalf of the appellate committee of the House of Lords, Lord Bingham recommended a series of questions to be adopted in the context of Article 8 decision-making when an order for deportation is challenged.

16.       These five eponymous Razgar questions can be summarised thus. I begin with the first two:

(i)         Will the proposed removal of a person be an interference by a public authority with an applicant’s right to respect for his or her private or (as the case may be) family life?

(ii)        If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8 ECHR protection?

17.       Pausing there, at first sight, questions (i) and (ii) can be seen as essentially raising Article 8(1) issues. As the ECtHR commented in Nnyanzi v. United Kingdom, Application No. 21878/06, [2008] 47 EHRR 18, “not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8”. (para. 73). Thus, once the right is engaged or established, question (ii) requires the degree of interference to be assessed. The wording of question (ii) itself raises questions as to what, precisely, is involved in assessing the “gravity” of the consequence.  As will be seen later, the word “potentially” which occurs in question (ii), but not in question (i), is significant with regard to the form and sequence of the Razgar questions.

18.       It is necessary to bear in mind that the existence of the right in Article 8 is stated in positive terms. To apply a proportionality, or “potentiality”, test as to whether the right exists is to miss the point, and to make the right not just one that is not absolute - which is correct - but one the existence of which is contingent on some other consideration - which is incorrect. 19.  The next Razgar questions (iii) and (iv) can be seen as falling for consideration under Article 8(2). They are:

(iii)       If so, is such interference in accordance with law?

(iv)       If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic wellbeing 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.       The final question invokes a proportionality or weighing assessment, balancing the right of the individual as against the rights of the sovereign state:

(v)        If so, is such interference proportionate to the public end sought to be achieved? (Razgar, paras. 17 and 20)

21.       The context in which the questions arose in Razgar is of some relevance to this appeal. Mr. Razgar was an individual subject to a deportation order. He did not raise any question of family rights. He was, rather, a person who, threatened with deportation, raised the issue of psychiatric illness, including threatening suicide. Having regard to ECtHR jurisprudence, he asserted that the right under Article 8(1) protected those features of a person’s life which were integral to his identity or ability to function normally. He contended that protection of mental stability was an indispensable condition to the effective engagement of that right. The House of Lords, by a majority, accepted that such rights could be, and were, engaged by the foreseeable consequences of deportation where the appellant could demonstrate grave interference such as would amount to a flagrant denial of that right.

22.       But, as Lord Bingham, speaking for the majority, pointed out, that removal could not be resisted merely because medical treatment in the removing country was better than those in the receiving country. His speech made extensive reference to earlier ECtHR decisions, including Bensaid v. United Kingdom [2001] EHRR 205; Pretty v. United Kingdom [2002] 35 EHRR 1; and Costello-Roberts v. United Kingdom [1993] 19 EHRR 112. Many of these were cases where, in the context of deportation, the private life of individuals, as opposed to families, was concerned. Lord Bingham observed that decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small number of what he termed exceptional cases.

23.       But, as the House of Lords, including Lord Bingham, pointed out later, as a matter of UK domestic law, the test is not simply one of exceptionality in law (Huang v. Secretary of State [2007] UKHL 11; [2007] 2 AC 167). Lord Bingham here was, rather, addressing the result of a decision, but not making a general statement of the legal principles available.

24.       Speaking of proportionality test, the House of Lords pointed out in Huang:

“20.     In an article 8 case where this [proportionality] question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar above, para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the Rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test."

25.       Later, this judgment also considers R (Ali) v. Secretary of State [2016] UKSC 60, [2016] 1 WLR 4799 (“Ali”), another deportation case, on this occasion concerning a person with criminal convictions, where the Supreme Court of the United Kingdom addressed the question of proportionality. While caution is necessary in referring to later UK precedents, as the area is also subject to immigration rules issued by the UK government, the approach considered in these cases, and earlier, in AG (Eritrea) v. Secretary of State for Home Department [2008] 2 All ER 28, is itself useful as a reference point in understanding how the Convention guidelines laid down by the ECtHR, in practice, can be applied in a common law jurisdiction.

26.       In this appeal, the question arises as to how these Razgar questions should be raised and answered in a deportation decision made by the Minister. This can only be understood by considering what the Court of Appeal decided in CI v. Minister for Justice [2015] IECA 192, [2015] 3 IR 385.

Judgment of the Court of Appeal in CI in summary

27.       CI is a closely reasoned judgment. It is fully considered later. But, in it, the Court considered the duties of first instance decision-makers, acting in the name of the Minister, in making deportation decisions. For the present, it can be summarised as holding that the relevant consideration regarding the consequence of deportation on the private life of the proposed deportee was not that such deportation would bring an end to such private life, in the sense of existing social and educational ties in the state; but, rather, the relevant consideration should be the gravity of the consequences of such deportation (including the severance of social and educational ties) for the individual, and in particular, how it would affect that person’s “moral integrity”.

28.       In so concluding, the Court of Appeal is recorded in the report as approving Razgar, and considering Costello-Roberts and Bensaid). The Court held that what constituted sufficiently adverse events to engage Article 8 depended on individual facts and circumstances of the case. But it also made the observation that, in considering the gravity of consequences of deportation on the right to respect for private life of an individual who had never been permitted to reside in the State other than pending a decision on an asylum claim, it was permissible to take into account that individual’s private life, which consisted of relationships, including educational and social ties formed at a time when his or her right to remain in the state was precarious, citing Bensaid and Nnyanzi. These decisions are considered later.

29.       The judgment was later interpreted as having a number of consequences for the approach to be adopted by first instance decision-makers on behalf of the Minister. First, by reference to the gravity of consequences, it was thought that the question of engagement of private and family life had a high threshold; second, that, if the first two Razgar questions were answered in the negative, it would be generally unnecessary to proceed to questions (iii), (iv) and (v) (proportionality); and, third, that for reasons set out, Razgar questions (i) and (ii) could be considered in reverse order.

30.       The consequence was that decision-makers appeared to conclude that a precarious applicant could have had no expectation of Article 8 private or family rights, and, as a result, Article 8 was not engaged. This approach was adopted by first instance decision-makers, quoting CI, on the premise that the judgment, in turn, reflected statements of principle based on ECtHR jurisprudence in the field of deportation. That same approach was adopted in this case. The question to be addressed in this appeal is whether dealing with the questions in this way, did that actually reflect clear and consistent ECtHR jurisprudence, and, if not, what should the consequences be in this case.

31.       I pause to observe that, in the course of the appeal, his counsel further refined the issue as he viewed it. In a carefully presented case, he suggested that the question to be asked was whether a migrant who has lived for a number of years in the State, even if precariously, should nonetheless normally be entitled to the procedural protection of a proportionality analysis before it is determined there are no exceptional circumstances preventing deportation. The reason for this further refinement becomes clear when the circumstances of the case are considered. At the time the appellant had exhausted his rights of appeal under the 2015 Act, on the 7^th October, 2019, he had already been present in this State for three years. He has now been within this State for six-years, just more than double that three-year period.

The Appellant’s Application for International Protection: Overview

32.       What follows must be quite a detailed description of the way in which the decision was made. While it is the Minister’s review of this decision which must be considered, that review cannot be understood without consideration of the Minister’s first instance assessment. The review concludes that the findings of the assessment remained “valid”. In response to a plea made by the appellant that the Minister had not stated her reasons adequately in the review, the Minister pleaded that the reasons were clear, inter alia, by reference to the first instance assessment, as well as the review itself.

33.       A number of questions then arise for consideration. The first is whether the “CI approach” reflects clear and consistent Article 8 Strasbourg case law on deportation. For this, it will be necessary to consider that case law in its appropriate field of application.  

34.       But it must be said at the outset that this was not an instance where decision-makers left out many relevant details, or gave careless consideration to an applicant’s circumstances. In fact, to the contrary, the factual consideration of the assessment was quite detailed. Rather, the question at issue is whether the legal principles as applied by the decision-makers in decision-making, and said to be derived from CI, actually did represent the clear and consistent approach favoured by the ECtHR in assessing these issues.

35.       Counsel for the appellant submits that considering all the five Razgar questions was necessary. This included a proportionality assessment. He contends this actually reflected the proper ECHR approach, and would at minimum, assist in transparency of decision-making. But he goes further, contending that such an approach is actually what is required in law, rather than simply desirable.

36.       This judgment is of limited scope. In essence, what is considered here concerns procedure and methodology; that is, the approach, or how, questions concerning deportation should be Convention compliant. The question of course arises in a factual context, which must now be described. But, as this judgment seeks to explain, the question of methodology cannot be separated from the substance of the decision.

The Facts

37.       The appellant, MK, arrived in this State on the 13^th September, 2016 as an unaccompanied minor. He is a national of Albania. He later moved in with a foster family and attended a secondary school in an area close to Dublin. He completed 5^th Year in school, and then took a break from his studies to engage in work. He applied for international protection on the 6^th June, 2017. At this stage, he was in Transition Year.

38.       In his application, he submitted then that he was afraid to return to Albania, as his father, a policeman, had been attacked by criminals in 2010. He made the case that he had helped his father in apprehending the criminals who had routinely terrorised him and his family, made threatening phone calls, and fired shots at his father outside their home. He said that for these reasons the family had organised his departure to Ireland.

39.       Having attended school here for approximately two years, the appellant was granted permission to enter the labour market on the 13^th August, 2018 up to the 13^th February, 2019, or until a final decision was made on his international protection application. He undertook training and worked full-time in catering at a location near Dublin and, at the time of the application, was expressing the hope that he could start his own business. The other members of his family continued to reside in Albania. The decision noted there was no evidence the family had suffered any other persecution or ill consequences arising from the events in 2010. They pointed out that he was given permission to remain in the State for the sole purposes of examination of his application for international protection, and, if necessary, an appeal. (Section 16 of the Act).

40.       The legal procedures involved in applications for international protection have been set out in some detail in ASA, the companion judgment to this one. The appellant’s application for international protection under ss. 13 and 14 of the Act was made with the assistance of TUSLA. On 17^th August, 2018, he made further submissions about his private life. The application was considered by B.S., an international protection officer (“IPO”). By that point, the appellant had turned eighteen. He was, therefore, treated as an adult in the assessment. The officer did not find the appellant’s explanation for seeking asylum to be either credible or reasonable. She held that the appellant was not at risk of persecution were an order made that he should return to Albania. Her recommendations were contained in a sixteen-page report dated the 26^th September, 2018. The effect of the recommendation made under s.39(3) of the Act was that the appellant was found not to be entitled to political asylum or subsidiary protection.

The Leave to Remain Application

41.       This appeal directly concerns the review of the leave to remain decision, and the order for deportation, following the unsuccessful international protection application. But, availing of the unitary process, the appellant also requested leave to remain in the State for humanitarian reasons. Such decisions are made by the Minister acting through her officers (see ASA). This request was made on a contingency basis, in the event that the application for international protection was unsuccessful. This procedure was carried out under s.49(3) of the Act. It involved an “Examination of File”. In law, when deciding whether an applicant should be given permission or leave to remain in the State, the Minister is to have regard to his or her family and personal circumstances, the person’s right to respect for his or her private and family life, having due regard to (a) the nature of the applicant’s connection with the State, if any; (b) humanitarian considerations; (c) the character and conduct of the applicant both within and (where relevant and ascertainable) outside the State (including any criminal convictions); (d) considerations of national security and public order, and (e) any other considerations of the common good.

42.       I should comment that I do not read these statutory provisions as suggestive of an approach that those private and family life rights only arise for consideration in exceptional cases.

43.       The application was considered under these headings by SF, described as a ‘case worker’ in the International Protection Office. But, in fact the decision was made by that person in his capacity as an officer of the Minister. It was dated 31^st October, 2018. Although it is not challenged, an outline of the facts is necessary.

44.       The author referred to a number of legal authorities for guidance. It is not surprising that in such decision-making there may be elements of “cutting and pasting” from relevant legal authorities. But, even if the process may be somewhat formulaic, it is necessary to ensure that what is “pasted”, that is, quoted, be placed in proper context, and fully reflects what is actually held in a judgment.

45.       The report first made reference to the judgments of the Court of Appeal in CI. The author stated that:

“The Court of Appeal in CI … considered the principles set out in the case law of the ECtHR and stated the approach set out therein, namely, (i) to identify a potential interference in the right to respect for private life within the meaning of Article 8, and (ii) to look at whether the proposed deportation would have such consequences of such gravity for the physical and moral integrity of the individual as to engage the responsibilities of the State under Article 8(1)”. (Emphasis added)

But this is not, in fact, the question posed in the judgment.

46.       The Minister’s decision-maker, in fact, inserted the word “potential” into question (i), while the original text of the Razgar judgment asks directly whether the “proposed removal will be an interference by a public authority …”. The insertion of the word “potential” is not simply incidental. On the next page, the decision quotes the questions correctly. But then the author wrote:

“In considering the first question it is accepted that if the Minister decides to refuse the applicant permission to remain, this has the potential to be an interference with the applicant’s right to respect for private life within the meaning of Article 8(1). This relates to the applicant’s educational and other social ties that the applicant has formed in the State as well as matters relating to his personal development since his arrival in this State”. (Emphasis added)

 

The report went on:

“The applicant’s legal representatives have submitted that any proposal to remove the applicant would engage Article 8 ECHR and reach the threshold of gravity so as to engage its operation.” (Emphasis added)

47.       As this judgment seeks to explain, these changes substantially altered the meaning and nature of the questions asked and the necessity for an answer as to whether Article 8 is engaged. To repeat, Razgar question (i) actually deals with whether the facts of a given case give rise to private and family life being interfered with (interference); whereas Razgar question (ii) asks whether an order for deportation would have such gravity for the physical and moral integrity of the individual (gravity) as to engage the responsibility of the State under Article 8(1). These are different questions raising different considerations. This is not simply a matter of semantics. The approach not only alters the sequence in which the questions are put, but changes the meaning and underlying assumptions of the question and the need for a direct answer to each of them.

48.       As I seek to explain, it led to a test which commenced by asking whether Article 8 is engaged, which was answered by considering the gravity of the consequences, rather than whether the privacy and family right actually arose for consideration on the facts. The provenance of this alteration can be traced back to statements in CI discussed later, and before then, to passages from ECtHR case law, in particular, Bensaid and Costello-Roberts (cf. paras. 35 & 36 of CI also considered later).

49.       The decision-maker interpreted CI as holding that Article 8 fell to be considered in the light of the individual facts and circumstances, and having regard to the context in which the allegations arose, and whether the gravity of the consequences for the appellant was over and above the normal consequences of the impact of the measure on an individual, asking the question whether Article 8(1) was “engaged”, but then stating that, if so, then any proposed removal must be examined under Article 8(2). The net consequence was that the test of whether Article 8 was engaged became understood as primarily a Razgar question (ii), gravity issue, thereby creating a significantly higher threshold for engagement and the need to deal with the other three Razgar questions.

50.       The report acknowledged the potential for a refusal to be an interference with the right to respect for private and family life within the meaning of Article 8(1). But that was not the true issue. The consequence was that questions (iii), (iv) and (v) were not addressed or answered.

 

Private Life

51.       The circumstances of the appellant’s case were summarised under the heading “Private Life”. The wording of what followed was revealing. The report then stated that, although the appellant had “submitted evidence of personal ties in the State, no expectation was given to the applicant that he could form a private life in Ireland, [and therefore] it [was] not open to him to seek to rely on Article 8 to circumvent the immigration rules he would normally be subject to”. (Emphasis added) The effect of this statement, therefore, inexorably led to the conclusion that the appellant simply could not rely on Article 8 on the basis of what was said to him when he applied for international protection, regardless of any events which may have followed in or during his life in this State. This approach is not consistent with ECtHR case law.

PO & Anor. v. Minister for Justice

52.       The first instance decision also makes reference to, and quotes from, PO & Anor. v. Minister for Justice & Equality & Ors. [2015] IESC 64, [2015] 3 I.R. 164. The decision quoted my judgment as recording that, in PO, the High Court judge had recorded the Minister’s conclusion that the deportation would not have the consequence of such gravity as to amount to a failure to respect the rights to private or family life as being a reasonable one. The report also refers to the fact that the PO judgment held that the fact that an unsuccessful applicant derives benefit from continuing residence in the State, whether such benefit be social or educational, did not amount to exceptional circumstances that would give rise to an entitlement to remain in Ireland.

53.       Unfortunately, however, the report did not record the context in which these assertions were made; specifically the fact that the judgment stated that Article 8 was “engaged” in relation to the fourth appellant; or that, at the conclusion of the judgment, it was said that Article 8 was “properly engaged”. Nor did the report quote statements in the same judgment that the Minister’s decisions in this field had to be made having regard to ECtHR case law, and the “principle of proportionality”, or indeed that, in PO, the court exceptionally recommended that the Minister re-assess her deportation decision on humanitarian grounds. (cf. paras. 15, 30 and addendum). Later, it will be seen that the question of proportionality is a constant in relevant ECtHR case law.

54.       I should also add that, in CI, the Court of Appeal also made this important observation:

“… in considering the gravity of the consequences of deportation, of the right to respect for private life of an individual who has never been permitted to reside in the host state (other than pending a decision on an asylum claim), it is permissible to take into account that it is a private life consisting of relationships, including educational and social ties, formed at a time when the right of the individual to remain in the State is precarious” (para. 41)

55.       This significant passage, which comes closer to ECtHR case law, was indeed quoted, but its potential relevance to the issue of whether the appellant- even as a “precarious migrant” - nonetheless might have had a private life meriting consideration was not considered by the Minister.

The Sequence of Razgar Questions

56.       Acting on an understanding of what was held in CI, regarding a considering of the gravity of the interference with Article 8 entitlements, the deciding officer then addressed Razgar question (ii) first. Answering that question, he concluded that:

“Having considered and weighed all the facts and circumstances in this case, it is not accepted that such potential interference will have consequences of such gravity as potentially to engage the operation of Article 8(1).” (Emphasis added)

57.       The deciding officer then addressed but, in fact, had not answered, Razgar question (i):

“… Having considered and weighed all the facts and circumstances in this case, a decision to refuse the applicant permission to remain does not constitute a breach of the right to respect for private life under Article 8(1) of the ECHR.” (Emphasis added)

58.       Two points arise. The first is that not only did the decision-maker obviously address the Razgar questions in the incorrect sequence, but, by a process of transposition and elision, concluded he did not need to address himself to the question as to whether Article 8 was engaged, because the position of the appellant had always been “precarious”, and that he had never been given an expectation that he could remain in the State.

59.       But, furthermore, relying on passages from the judgment in CI (para. 34), he held that, as Article 8(1) was not engaged in the appellant’s case, it was unnecessary to go beyond these first two questions, or to not address any proportionality issue. In adopting this approach, the officer sought to apply certain dicta taken from CI, which, in turn, sought to apply and interpret the judgments of the ECtHR, including, specifically, Nnyanzi, as a guide.

Family Life

60.       The officer then referred to the question of family life. He referred to the decision of K v. The United Kingdom [1986] 50 DR 199, where the European Commission had found that the existence of family life depended upon “the real existence and practice of close personal ties”. The officer noted that the appellant presented as single, with no family connections to the State, that he was currently residing in private accommodation, and that his parents and sister were then currently residing in Albania. It referred to the fact that the appellant was residing in the State with his foster family, having arrived here on the 13^th September, 2016, and applied for international protection on the 6^th June, 2017.

61.       The officer then stated:

“The applicant has been given temporary legal permission to be in the State pending the outcome of his/her application, but could never be considered to have been allowed to settle as a result of this temporary permission.”

The report outlined principles summarised by the UK Court of Appeal in the judgment of R (Mahmood) v. Home Secretary [2001] 1 WLR 840, which refers to the rights of the State, the rights of families, and which, in fact, is not directly germane to this case.

62.       Then, as earlier, the officer repeated that, although the appellant had submitted evidence of personal ties, no expectation had been given to him that he could form a family life in Ireland, and therefore it was “not open to him to seek to rely upon Article 8 to circumvent the immigration rules to which he would normally be subject to”. He stated that the ECtHR had held that it was likely only to be in the most exceptional circumstances that the removal of a non-national family member would constitute a violation of Article 8. There was no information that there were any insurmountable obstacles to the appellant’s family life being (re)established in Albania.

Subsequent Procedure

63.       The Minister’s decision refusing leave to remain was made pursuant to s.49(4) of the Act. The appellant was notified of all refusals on 1^st November, 2018. He lodged an appeal against the refugee and subsidiary protection refusal on 21^st November, 2018. That appeal was unsuccessful, and rejected in a decision made by the International Appeals Tribunal on the 7^th October, 2019, signed by EW, a member of that Tribunal.

The review of the leave to remain decision

64.       I move then to consider the decisions challenged in the judicial review. These are the review of the leave to remain decision, and the deportation decision made on foot thereof. On 18^th October, 2019, the appellant lodged an appeal against the refusal of permission to remain. Ms. RB, a case worker in the International Protection Office, carried out a review pursuant to s.49(7) of the Act, which referred back, and relied upon, the facts and approach as described in the first instance assessment and refusal decision.

65.       She wrote a detailed report dated 25^th November, 2019, giving consideration to the various factors set out under s.49(3) of the 2015 Act (see s.49(3)(a) to (e) recited earlier). The report noted a number of submissions made which were favourable to the appellant, which referred to his honesty, integrity, hard work and reliability, and pointed out that he had been resident in the State for a number of years, was still working hard, saving money to open his own business, and was currently working in a restaurant. He was of good character. Thirteen letters of recommendation contained descriptions of his engagement with friends, work and social ties.

66.       Dealing with the appellant’s Article 8 rights, the review report stated:

“9.       Article 8 (ECHR) - Private Life

The applicant made the following submissions regarding their private life.  The applicant is living in private accommodation and working in the _________ restaurant in ________. The applicant spent two years in ________ secondary school in _______, before leaving to try something different. The applicant is employed within the State at the _______ Restaurant. The applicant has made many friends in the state.”

67.       Reflecting the same approach as that adopted in the first instance assessment and decision by Mr. SF, the author of the review again posed only Razgar questions (i) and (ii), and again eliding the first two questions, addressed them in reverse order. She wrote that:

“Having considered and weighed all the facts and circumstances in this case, it is not accepted that such potential interference will have consequences of such gravity as potentially to engage the operation of Article 8(1)”. (This was, of course, Razgar question (ii), but addressed first). Then she added that:

“Having considered and weighed all the facts and circumstances in this case, a decision to refuse the applicant permission to remain does not constitute a breach of the right to respect for private life under Article 8(1) of the ECHR” (i.e., Razgar question (i)) (Emphasis added)

The reviewer did, therefore, pose Razgar questions (i) and (ii), but not in that order. She recorded that she weighed all the facts and circumstances, but only in the context of the answers to the first two Razgar questions posed in reverse order, based on a conclusion formed in response to Question (ii) that Article 8(1) was not engaged.

68.       The report then dealt with family life. The author noted that the previous consideration had found that the circumstances of the appellant’s case did not constitute a breach of Article 8(1), and that the appellant had not submitted any additional information under s.49(9), and therefore the previous consideration remained valid and required no additional consideration.

69.       The author concluded:

“While noting and carefully considering the submission received regarding the applicant’s private life and family life and the degree of interference that may occur should the applicant be refused permission to remain, it is found that a decision to refuse permission to remain does not constitute a breach of the Applicant’s rights.  All of the applicant’s family and personal circumstances, including those related to the applicant’s right to respect for family and private life, have been considered in this review and it is not considered that the applicant should be granted permission to remain in the State.” 

70.       The appellant was notified of the outcome of this review on the 4^th December, 2019. The Minister made a deportation order against the appellant on the same day, which was issued on the 17^th February, 2020.

Judicial Review

71.       The applicant commenced judicial review proceedings seeking orders of certiorari of the review of the leave to remain decision and the consequent deportation order. He claimed a breach of his rights under Article 8 ECHR, and a right to privacy under Article 43 of the Constitution, to be applied proportionately in accordance with Article 40.1 of the Constitution.

The High Court Judgment

72.       The reasoned High Court judgment, now appealed, was delivered by Tara Burns J. on the 16^th April, 2021. The judgment identified the orders challenged, and the judge considered the relevant authorities which bound her, CI and also Razgar, the judgment of this Court in P.O. & Anor. v. Minister for Justice and Equality & Ors [2015] 3 I.R. 164, and that of Humphreys J. in the High Court in S.A. (South Africa) v. The Minister for Justice [2020] IEHC 571 (“SA”).

73.       Relying on SA, Burns J. held that the jurisprudence of the Irish courts was “extremely well settled”, to the effect that a migrant “with a non-settled or precarious residential status cannot assert Article 8 rights, unless exceptional circumstances arise. Accordingly, a proportionality assessment does not arise”. (para. 27) (Emphasis added). The use of the word “assert” derives from CI. For the reasons outlined earlier, it is understood as having the consequence that a proportionality assessment need not be considered.

74.       The High Court judge considered the ECtHR judgment of Pormes v. The Netherlands (“Pormes”), Application No. 25402/14, in some detail. She rejected the appellant’s submission that that judgment represented a significant evolution in ECtHR jurisprudence, holding that the ECtHR had treated Pormes as simply a case which the court had found to be exceptional, where the youthful applicant had been unaware that his status was illegal, having lived in the Netherlands since a very young age with family members who were, in fact, legal residents. As a result, the ECtHR had held that the applicant did not fall within the category of persons who were aware of their precarious status, and accordingly exceptional circumstances did not have to be established for Article 8 to be violated.

75.       Pormes is considered later and in more detail, but it will be noted that because of other countervailing considerations in the form of the applicant’s criminal offences, the ECtHR held that the Netherlands’ courts had acted within the margin of appreciation allowed to member states, and that, as a consequence, there had been no Article 8 violation.

76.       Applying the case law cited to her, including a binding authority in the form of CI, and what was quoted from PO, Burns J. rejected each of the appellant’s submissions. She concluded that the ECtHR had not disapplied the requirement to establish exceptionality in the case of a non-settled migrant, or a person with a “precarious residence”, so that Article 8 rights would be engaged. She concluded that, until such time as Article 8 was actually engaged, there was no necessity to conduct a proportionality assessment, as otherwise such an assessment would be conducted without the applicability of Article 8 having been established in the first place. The High Court judge rejected the submission that granting the appellant access to the labour market had altered his residency status. He remained an individual without permission to remain in the State, save for the purposes of the determination of his international protection application, which by then had been determined against him. The judge dismissed any argument to the effect that Article 14 ECHR (discrimination) grounds were engaged.

Grant of Leave

77.       The appellant applied for leave to appeal to this Court on the basis that the issue of application raised issues of general public importance affecting other cases. In its determination ([2021] IESCDET 116), the panel of this Court granted leave on the basis that the application to this Court raised questions in relation to the proper application of the Convention and the Constitution in the context of migrants with precarious resident status, who have lived and worked in the country. The Court observed that the issues had the potential to affect other migrants’ applications of the type under challenge.

The Appellant’s Case in this Appeal

78.       Before this Court, counsel for the appellant argued that the High Court had erred in holding that a migrant with non-settled residential status could not assert Article 8 ECHR rights, unless exceptional circumstances arose (para. 27 of the High Court judgment). He submitted that the High Court had erred in holding that the ECtHR jurisprudence was to the effect that there was a requirement to establish exceptionality in order for a non-settled migrant to engage Article 8 rights (para. 32 of the High Court judgment). He argued that the High Court had erred in concluding the appellant had not acquired a procedural right under the Constitution to have a proportionality test conducted (para. 39 of the High Court judgment).

79.       Counsel accepted that, were his argument to succeed, this Court would be obliged to disapply aspects of the Court of Appeal’s judgment in CI, on the basis that the Court of Appeal had not, in fact, reflected ECtHR jurisprudence on the question of private and family life. He observed that, in CI, the Court of Appeal had stated as a fact that the ECtHR had not addressed the issue of private life in the case of unsettled migrants, and that it was generally appropriate to reduce the issue to the first two Razgar questions.

80.       He submitted that, in fact, the ECtHR had given consideration to the private and family life right in its broad context in Butt v. Norway, Application No. 47017/09, 4^th December 2012, [2012] ECHR 1905 (“Butt”). Counsel added that the approach in CI differed from that expressed in case law of the neighbouring jurisdiction, including VW (Uganda) v. SSHD [2009] EWCA Civ 5, and AG (Eritrea) v. SSHD [2008] 2 All ER 28, paras. 26 to 28. He referred to academic commentary which expressed doubt as to whether CI was consistent with ECtHR case law. He submitted that as a consequence, the High Court judge’s reliance upon it, and on findings and observations made by the High Court in SA, were incorrect.

The Minister’s Case

81.       The respondent Minister’s case, on the other hand, is relatively straightforward. Her counsel stands over the judgment of the High Court in its entirety, and that the Court of Appeal was correct in its decision in CI, and had applied the relevant ECtHR jurisprudence. Counsel submitted that CI concerned unsuccessful asylum seekers whose status within the State was precarious, who did not enjoy significant family ties within the State. He contended that, in this case, the High Court had correctly decided that Article 8 was not engaged, and had correctly applied CI. Thus, the decision made by the Minister in this case was correct in finding that it was necessary to address only Questions (i) and (ii) in Razgar.

82.       The Minister disputed that the appellant was entitled to a proportionality assessment such as might arise in question (v) of Razgar. Her counsel submitted, rather, that, by reference to ECtHR jurisprudence, the approach is that a proportionality test arose only in exceptional cases, and that the case before the court in CI, and the case now before this Court, were in no sense exceptional. Counsel referred the Court to a series of ECtHR judgments which he contended supported his contention. He submitted the appeal could not succeed.

83.       The Minister’s case was that the examination of file considered each of the factors required by s.49(3) of the Act, and correctly cited CI and Razgar at the beginning of the assessment, and that the assessment acknowledged a refusal to grant the appellant permission to remain potentially constituted an interference with his right to respect for private life within the meaning of Article 8(1). An observation to the same effect was made concerning the review decisions. Counsel submitted that none of the ECtHR cases relied on by the appellant (and discussed below) suggests that an unsettled migrant is entitled to a proportionality assessment, save in exceptional circumstances.

Some Observations

84.       Prior to analysis of both national and ECtHR authorities, a number of observations arise. Save where necessary, this judgment does not directly address ECtHR case law regarding settled migrants. Furthermore, while it is true many cases are case-specific, few are more so than “unsettled migrant” decisions. As a result, it is unsurprising that both national and international decision-making also tends to be fact specific.

85.       But it is not unfair to point to academic commentary (cited later), suggesting that there have been occasions in the past where the task facing national courts in having regard to ECtHR jurisprudence in this area has been challenging, on the basis of certain apparent inconsistencies. The fact that there are general guidelines to assist national courts occasionally can become submerged when there may be emphasis on exceptionality. In Article 8 judgments, the court in Strasbourg has itself observed that it is difficult to identify the boundaries between the private life of individuals in their interaction with the State and how certain divergences in the Article 8 (1) and 8(2) criteria should be addressed. But, as will be seen, there have been significant divergences in approach.

86.       As the brief summary of case law which follows shows, there have been occasions, too, where national decision-making authorities and courts have actually engaged in a proportionality analysis, but where, later, applying the same type of assessment, the ECtHR has reached a different conclusion. Any underlying questions of the respective roles of national and international courts, and the jurisprudence of the ECtHR on subsidiarity, lie outside the scope of this judgment.

87.       The questions now arising include whether the principles enunciated in earlier ECtHR case law, such as Nnyanzi and relied on in CI, remain more generally applicable; whether, in fact, the Court of Appeal did not address established private and family life case law in the case of unsettled migrants; and whether observations by the Court of Appeal in CI concerning the approach to be adopted in addressing these issues are correct.

88.       Counsel for the appellant submits that it was significant that the Court of Appeal did not refer to Butt, which dealt with private and family life. One might also mention in this context Slivenko v. Latvia, Application No. 48321/99, ECHR, 9 October 2003 (“Slivenko”); Mendizabal v. France [2006] ECHR 34 (“Mendizabal”). It is necessary, first, to consider what was held in CI, and the basis in ECtHR jurisprudence for the Court of Appeal’s conclusions.

CI: The High Court

89.       In CI, the first, second and third applicants were citizens of Nigeria. The fourth applicant, a minor, was born in this State but was not an Irish citizen. The applicants were, therefore, members of the same family. But the case did not involve a description of family ties or links with other persons who would continue to reside in Ireland. They sought asylum in the State which was refused. The Minister ordered their deportation.

90.       In the High Court, on judicial review, MacEochaidh J. concluded that the Minister had erred in finding that deportation “may” interfere with the rights pursuant to Article 8, while also determining that their deportation would not have consequences of sufficient gravity as to engage the operation of that Article. He held the Minister had erred in only addressing Razgar question (i) in reverse order, and that such an approach failed to address whether Article 8 was actually engaged. He concluded that on a proper reading, all five Razgar questions fell to be considered, in the sequence outlined by Lord Bingham. In his view, it was not open to the Minister to “equivocate” on whether Article 8 was engaged, when there was not an especially high threshold.

91.       The judge held that, on the facts in CI, the answers to the first two Razgar questions could only be in the affirmative, and that it then fell to the Minister’s officer to carry out a proportionality analysis. He concluded that it was insufficient for a decision-maker to say, without anything else, that deportation would not have a consequence of such gravity as to engage the operation of Article 8. It was difficult to discern why the removal of the children from their school would not constitute a grave consequence sufficient to engage Article 8. The consequences of the removal of the children from an environment which they knew was a matter which should be addressed by the decision maker - but only for the purpose of identifying whether rights under Article 8 were engaged (para. 29).

 

CI: The Court of Appeal

93.       The judgment of the Court of Appeal was closely reasoned. It was delivered by a distinguished judge whose many judgments, including in this area, are respected and authoritative. Be it said, the judgment reflected a common perception as to Convention law. But, having considered that judgment in detail, and for the reasons now outlined, I have to conclude that it did not fully reflect the full range of ECtHR case law, insofar as it applied to the facts of that case. While characterisation of cases between private and family rights is not always easy, it did not reflect the general approach adopted in cases in the field of application of Article 8 private and family rights arising in deportation, rather than the private rights of individuals under the same Article.

94.       In allowing the appeal, the Court of Appeal held that, in accordance with judgments of the ECtHR to which it referred, it would require wholly exceptional circumstances to engage Article 8 in relation to a proposal to deport persons who had never had permission to reside in the State, other than being permitted to remain pending determination of an asylum application, and that the consequences of deportation had to be in the context of the long standing principles stated by the ECtHR, that Article 8 did not entail a general obligation of the State to respect the immigrant’s choice of country of residence.

95.       Rejecting what was found by the High Court judge, the Court of Appeal held it was not appropriate, in the context of unsettled migrants to simply enquire whether the “interference” could be described as “technical or inconsequential”. What was required, rather, was to ask whether the facts of the case showed that there would be sufficiently adverse effects, or consequences of such gravity, to engage Article 8.

96.       In reaching this conclusion, the court referred in particular to Bensaid v. United Kingdom and Nnyanzi v. United Kingdom. It held that, in relation to interference with a right to respect for private life, it followed that, in order to engage Article 8, the gravity of the consequences for an illegal immigrant had to be above the normal consequences of the impact on an individual of enforcement of immigration law, including deportation (para. 42, C.I.) The court took the view that, a person opposing his or her deportation on the basis of the right to respect for private life pursuant to Article 8 would, at minimum, need to adduce evidence that the bringing to an end of that private life in the State would have a significant or grave impact on his or her right to personal development, including social and educational ties, and his or her “physical or moral integrity” on return to the country of origin. It is clear this was considering a higher threshold for determining engagement than that considered by the High Court.

97.       Seeking to analyse the ECtHR case law referred to it, the Court of Appeal held that it was permissible and legitimate to pose Razgar questions (i) and (ii) in reverse order. A central finding is to be found at para. 35, where the court concluded that the trial judge primarily fell into error in deciding that the relevant consequence of deportation to be examined (for the purpose of determining whether the interference by deportation would have consequences of such gravity as to engage the operation of Article 8) was the bringing to an end of the private life in the sense of existing social and educational ties in Ireland. Rather, what the case law of the European Court of Human Rights required was for the adjudicator (and on review the court) to consider the gravity of the consequences of deportation (including severing social and educational ties or relationships) for the individual, and in particular how it affected his or her moral or physical integrity.

98.       The court observed that it was the individual's right to respect for his or her private life which is guaranteed by Article 8. The prohibition against interference by a public authority is with the exercise of this right. Where the relevant aspect of the right to private life is the right of the individual to establish and develop relationships with other human beings and insofar as it concerns education, the right to personal development, then what an adjudicator must consider was the gravity of the consequences for the individual of deportation including the inevitable rupture of relationships and social ties formed whilst in the State. I emphasise the usage of the words “private life”, rather than private and family rights.

99.       Having referred to Article 8 on a number of occasions as concerning “the right of privacy”, the Court of Appeal concluded that, where a proposed deportee opposed his or her deportation by asserting a right to private life under Article 8, it was permissible for the Minister to first consider whether the gravity of the interference was such that there were wholly exceptional circumstances as to engage Article 8 (para. 42, C.I.; quoting Razgar question (ii), and ECtHR case law). This placed a high premium on gravity as a condition precedent to engagement.

100.     In so concluding, the court referred to Costello-Roberts, Bensaid v. United Kingdom as well as Razgar; and Nnyanzi v. United Kingdom. In emphasising a test relying on the gravity of the order for deportation, rather than its effect on social or educational life, the court relied on each of the authorities cited. The court had to address jurisprudence cited to it which, it must be said, was not always consistent in approach. To do total justice to the judgment would take up many pages. The court considered Nnyanzi, where the appellant did have social, educational and work ties to the United Kingdom, albeit not exceptional, but where, without detailed consideration of Article 8(1), and therefore engagement, the Strasbourg court moved almost directly to an Article 8(2) assessment, presumably on the assumption that the decision to deport the appellant where there were no exceptional circumstances which might have engaged Article 8(1) private life, but where Article 8(2) considerations outweighed any private life consideration.

101.     The court also referred in detail to Bensaid, where the ECtHR did consider the Article 1 (right to life) “health evidence”, but observed that the physical and moral integrity test which it identified, required a substantial level of proof, not hypothesis. The Court of Appeal sought to reconcile the approach adopted in Nnyanzi with that in Bensaid, but concluded that, at the level of principle, what had to be considered was the gravity of the impact on the applicant of his or her physical or moral integrity. Ultimately, the court concluded that the question of gravity was a central conclusion precedent to engagement.

102.     Referring to V.W. (Uganda) v. Secretary of State for the Home Department [2009] EWCA Civ 5, and Razgar, the court concluded that the High Court judge had erred in finding that the term “consequences of such gravity” in question (ii) in Razgar raised the question as to whether could be described as merely technical or inconsequential. Rather, it required “something quite grave or exceptional”, that is, a high threshold.

103.     It is easy to be critical with the benefit of hindsight, and where this Court has had the benefit of considering a wider range of case law. But it seems the judgment in CI sought to identify an approach which was over-focused on the authorities cited. But those authorities which led to the conclusions must also be seen within their field of application.

104.     By way of illustration, Costello-Roberts was not an immigration case. It might best be described as raising a “human dignity” question. The issue was the potential effect on the private life of an individual of a corporal punishment regime in a school. Rejecting the contention that there had been a violation of Article 3 (Torture or Inhumane and Degrading Treatment), or Article 8, the Strasbourg court held that to be “degrading”, in the sense of Article 3, the humiliation or debasement must attain a level of severity higher than that inherent in any punishment. But the court then went on to find that, while the notion of private life was broad, the previous finding under Article 3, taken together with the fact that sending a child to an independent school interfered with their private life, led the court to conclude that the trespass in question did not entail adverse effects for the complainant’s physical or moral integrity within the scope of Article 8 (para. 38).

105.     In Bensaid, the applicant was a man who alleged serious mental and psychological sequelae in the event of deportation. The ECtHR first assessed whether there was evidence or proof of interference with private life. It held this had not been established. The court then proceeded to consider Article 8(2) factors. This approach is consistent with Razgar in the U.K. In Nnyanzi, the applicant was a woman without family ties, albeit involved in a relationship, undertaking accountancy studies in the United Kingdom, where the ECtHR section concluded that, even were the question of private life to be considered, the Article 8(2) considerations in the case clearly outweighed any private life claim. Razgar, itself, concerned potential health effects upon an individual of an order for deportation.

106.     Each judgment arising in that context, therefore, addressed the question of gravity as a prior condition to engagement of private life in that field of application. In doing so, the court appeared to reject the mere fact of private and family life, work or social life, or the life of children in education establishing social or educational connections with others, as raising engagement. The applicants in CI were not simply a group of adult individuals, they were a family, where the children had social ties and were in education. The CI judgment did refer to Article 8 rights in the context of settled migrants: Balogun v. United Kingdom, Application No. 60286/09, [2013] 56 EHRR 3 (para. 27), but it did not refer to other authorities addressing private and family rights in the case of unsettled migrants, including those dealt with below.

107.     In short, I think that the case law to which the court was referred, and upon which it relied, was inapposite. The cases relied on were ones which laid emphasis on the gravity upon the individual of the incursion into private life, with a serious effect upon the individual’s physical or moral integrity. On this basis, it held Article 8 was not engaged. But, as I hope to show, those conclusions do not represent Strasbourg jurisprudence as to the approach to be adopted in the field of the right to respect for private and family life regarding unsettled migrants. ECtHR case law, both then and subsequently, followed a different approach.

108.     But these were not the only difficulties. It is also correct to say that the judgment of the Court of Appeal did not refer to ECtHR case law such as Butt v. Norway, or other decisions which did, actually, set out indicia or guidelines for private and family life in the case of unsettled migrants. This was a pivotal factor in the CI judgment. In the apparent absence of ECtHR case law on the issue, the Court of Appeal proceeded on the basis that the ECtHR had consciously refrained from addressing the question in the context of unsettled migrants. This was not so. In fact, as I seek to show, the facts in CI should have given rise to a consideration of the actual engagement of Article 8, not its potential engagement. Strasbourg had, indeed, given consideration to the position of unsettled migrants in asserting rights under Article 8 to private and family life, as I now seek to outline.

109.     Counsel for the appellant submits that the Court of Appeal erred in not referring to Butt v. Norway, which dealt with private life. In fact, in its judgment, the Court of Appeal commented that in Nnyanzi the ECtHR had the opportunity to develop the concept of what constituted private life, but did not do so (para. 31 C.I.). This observation was true, but only in the sense of private life, as distinct from private and family life, whereas in Butt v. Norway, the ECtHR was not simply assessing private life, but, as in very many of what can be characterised as “exceptional cases”, a private and family life which arose where there were strong family ties within the host state which would be disrupted in the event of an order compelling the applicants to leave the state. But, in Butt, the question of the gravity, in the sense of effect of the measure upon the physical and moral integrity of the family members, did not arise. While a general definition is difficult, it can certainly be said it did arise in “health” cases, or physical integrity cases.

110.     Butt does not appear to be the only case where these issues had arisen prior to CI. These include Slivenko and Mendizabal. Slivenko concerned the Article 8 rights of the wife and children, who were ethnic Russians, of a former Russian military officer required to leave Latvia in the period post-independence in 1994, despite long residence in that country. Here, the ECtHR did not engage in a minimum gravity analysis of the type described in CI. Interestingly, in her speech in Razgar, Baroness Hale of Richmond described this as a private life case, as the whole family had been deported to Russia (para. 4). Mendizabal was a different type of case where the applicant had been subject to a regime of constant reviews in France, consequent upon withdrawal of an original refugee status which had been granted to her over many years. Again, the court in Strasbourg did not engage in a minimum gravity approach, but rather a proportionality analysis.

111.     The CI judgment, and the issue of ECtHR case law, generally, has been considered in a number of interesting articles and essays. (See A. Desmond “Private Life of Family Matters: Curtailing Human Rights for Migrants”, EJIL 2018, Vol. 29, 261 - 179, A. McMahon “The Right to Respect for Private Life under Article 8 ECHR; the Irish cases of Dos Santos and CI; European Database of Asylum Law, March 8^th 2016 “Between Facts and Norms, Testing Compliance with Article 8 ECHR in Immigration Cases”; Netherlands Quarterly of Human Rights 2019 Volume 37(2) 157- 177; “A Matter of Humanity?”, Emerging Principles relating to deportation and human rights”, Murphy, Dublin University Law Journal, 39 No. 1 2016, 259-270; “Membership without Naturalisation”, Murphy in “Questioning EU citizenship, Thym ed. Hart p.287 et. seq.).

Butt: Private and Family Life: Circumstances and Exceptions

112.     While deprecating the unnecessary description of facts, it is necessary to describe the ECtHR’s approach in Butt in its full context. First, the court set out the circumstances. The applicants were brother and sister, and had moved from Pakistan to Norway in 1989 with their mother when they were young children. They were granted residence permit on humanitarian grounds. The mother and children returned to live in Pakistan for four years in the 1990’s before resettling in Norway. The immigration authorities granted the family a settlement permit in 1995, whilst unaware of their stay in Pakistan. When the authorities discovered that the applicants had lived in Pakistan for those years, they withdrew the permits. The brother was subsequently sentenced to prison for a number of crimes. The authorities sought to expel him indefinitely. Both applicants sought to challenge the deportation orders and the decision to expel the brother.

113.     The ECtHR then moved to consider private and family life. Having been processed through the Norwegian courts, who refused the applicants leave, the ECtHR accepted that family and social ties had been formed. But then the Strasbourg court went to another feature, awareness of illegal status: these ties had been formed before the applicants had become aware of their precarious status, and that the authorities had not expected the applicants to leave the country on their own whilst their mother was in hiding, until they reached adulthood in 2003/2004. Here, the court was not only considering non-cooperation with immigration authorities, but also unawareness of status, recurrent themes.

Links to Country of Origin

114.     The court then considered links to country of origin. It took note that the applicants’ links to Pakistan were not particularly strong.

Criminal or Anti-Social Conduct

115.     The ECtHR then considered anti-social or criminal conduct. Concerning the brother’s criminal offences, the court noted that this had not been given much consideration by the Norwegian High Court when it upheld the earlier decision for deportation; but the ECtHR noted that the applicant had not re-offended in the long period of time which had since elapsed, and as a result came to the view that this factor ought not to have carried weight.

 

 

Legal Status

116.     The court then dealt with legal status. It observed that the applicants’ stay in Norway was, in reality, unlawful and that the applicants were not settled migrants.

Proportionality

117.     Weighing all these factors, the court concluded that the applicants’ deportation would entail a violation of Article 8 (paras. 79 to 91). This can only be seen as the weighing and balancing appropriate in a proportionality analysis.

Choice of Residence

118.     The judgment reiterated one of its guiding criteria, that is, that, while Article 8 did not entail a general obligation for a state to respect an immigrant’s choice of the country of their residence and to authorise family reunion in its territory. “Nevertheless in a case which concerned family life, as well as immigration, the extent of a state’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. …”.

A Summary of Factors

119.     The court then listed a series of those factors:

“Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion ... Another important consideration is whether 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 outset be precarious … Where this is the case the removal of the non-national family member would be incompatible with Article 8 only in exceptional circumstances …”.

These guidelines are a consistent point of reference in subsequent case law in the area.

120.     But, using words previously identified in Antwi & Others v. Norway, No. 26940/10, para. 89, the ECtHR also identified a further guideline:

“68.     ...[W]hile the essential object of [Article 8] is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective ‘respect’ for family life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation …”. (Emphasis added)

This is, inescapably, the identification of a proportionality analysis.

121.     In Butt, therefore, the ECtHR did embark upon a proportionality analysis of the circumstances of unsettled migrants, based on their conduct, that of their mother, and the extent of the links established between the applicants and Norway. While there are many other illustrations, Butt is, in fact, a classic outline of the ECtHR’s approach in the case of unsettled migrants. It is, therefore, correct to say that, pre-CI, the ECtHR had given consideration to the concept of private and family life, and not just in Butt. The court identified an approach identifying factors giving rise to a particular analysis of first engagement, then distinguishing features, then “pro” and “con” considerations involved in a balancing exercise, weighing the right contained in Article 8(1) against the limitation factors in Article 8(2). This process gave effect to the entirety of Article 8, not just an elliptical approach to Article 8(1).

122.     But the survey of case law which now follows also shows that a “minimum gravity or physical and moral integrity” test does not appear to be part of ECtHR jurisprudence in the general field of deportation cases. It cannot be said, either, that the approach in Nnyanzi, apparently warranting posing the second Razgar question regarding gravity prior to the first Razgar question concerning engagement, forms part of the consistent Strasbourg approach.

123.     Furthermore, there is no ECtHR judgment which holds that it will be sufficient to address only the first two Razgar questions, even though, in a given case, an applicant’s status was precarious. A question of “minimum level of severity” might, hypothetically, form part of a proportionality analysis, but it does not form part of a consideration whether Article 8 was engaged in the first place.

124.     While normally it would be sufficient to merely identify other cases to the same effect by name, I think more is needed for a number of reasons. First, the appellant cites these cases in support of his case that a proportionality assessment is made while identifying whether there are exceptional circumstances. Second, and more fundamentally, the process is necessary to show a consistency of approach which, questionably was not to be found between Bensaid and Nnyanzi, were it thought these were cases directly on point.

125.     Notably, in none of the cases now considered did the ECtHR refer to “minimum gravity” or effect of the measure in question on the “physical and moral integrity” of the individual or individuals in question.

Rodrigues da Silva

126.     A very similar approach to Butt was adopted in Rodrigues da Silva v. The Netherlands, Application No. 50435/99, where the applicant, an unsettled migrant, subject to deportation to Brazil, would have had to leave her daughter behind in the Netherlands. The court’s analysis again involved a close consideration of the relationship between the mother and the child, and other family members. It observed that authorities of a contracting state could not be faced with a fait accompli. But the court then laid weight on the far-reaching consequences which expulsion would have, and the responsibility which the first applicant would have as a mother as well as on her family life. On balance, it concluded that, in the particular circumstances of the case, the economic wellbeing of the respondent state did not outweigh the applicant’s rights under Article 8, despite the fact that the first applicant (the mother) was residing illegally in the Netherlands at the time of the child’s birth. The court observed that, by attaching such paramount importance to this latter element of illegal residence, the authorities may be considered to have indulged in “excessive formalism”. The Strasbourg court concluded that no fair balance had been struck between the different interests at stake and, accordingly, there had been a violation of Article 8.

Nunez v. Norway

127.     The same general approach was adopted in Nunez v. Norway (Application No. 55597/09), judgment 28/09/2011, where again, in the case of unsettled migrants, the court considered close family connections, the long period which had elapsed before the immigration authorities took their decision to order expulsion with a re-entry ban, leading the court to conclude that “in the concrete and exceptional circumstances of the case that insufficient weight [had been] attached to the best interests of the children for the purposes of Article 8 of the Convention. …”. The court was not satisfied that the respondent authorities had acted within their margin of appreciation when seeking to strike a fair balance between public interest and the entitlements of the applicant. Thus, there had been a violation of Article 8.

Unuane v. United Kingdom

128.     While Unuane v. United Kingdom, Application No. 80343/17 was cited in this appeal, it must be said that that judgment concerned the deportation of a settled migrant. Similarly, in Mendizabal v. France, Application No. 51431/91, while the issue of Article 8 private and family rights was considered, the applicant was, actually, an EU national with a direct entitlement in EU law to reside in France, and was not an unsettled migrant in the true sense.

Jeunesse v. The Netherlands

129.     In Jeunesse v. The Netherlands, Application No. 12738/10, [2014] ECHR 1409 an important Grand Chamber decision, the ECtHR pointed out that the appellant’s status was precarious, first, as an overholding visa holder, and thereafter as an unlawful resident. Thus, the applicant was not a settled migrant.

130.     Jeunesse was a case where the applicant’s spouse and her three children all had a right to reside in the Netherlands. She herself had held that nationality at birth, and then lost it and become a Surinamese national, not by her own choice, but by the fact of Surinamese independence and Article 3 of an agreement made between the Netherlands and that Republic concerning the assignment of nationality. It was in those unusual circumstances that the court concluded that her position could not be simply considered as on a par with other potential immigrants who had never held Dutch nationality. Jeunesse was a truly exceptional case therefore, and one where the court noted different treatment allowed by Article 8 between settled and unsettled migrants.

131.     However, in its judgment the court again emphasised the margin of appreciation afforded to states in immigration matters; that a fair balance had to be struck between the competing interests; the public order interests of the respondent in controlling immigration. But, having identified those relevant factors, “cumulatively” (para. 122), it held the circumstances of the applicant’s case must be regarded as exceptional. The court then went on to point out that a fair balance had not been struck between the competing interests involved, and that there had been a failure by the Dutch authorities to secure the applicant’s right to respect for her family life as protected by Article 8 of the Convention. This was a proportionality analysis. The minimum gravity and physical and moral integrity criteria did not arise in this field of application either.

Pormes v. The Netherlands [2020]

132.     Counsel for the applicant in his argument laid particular emphasis on the ECtHR judgment of Pormes v. The Netherlands (Application No. 25402/14), 28^th July, 2020, [2020] ECHR 572. He submitted Pormes represents a sea change in the ECtHR’s approach. For this reason, it must be dealt with in some detail.

133.     The applicant was born in 1987 in Indonesia. He travelled from Indonesia to the Netherlands with his presumed father, a Dutch national, in 1991. The presumed father travelled to Indonesia from the Netherlands several times, leaving the applicant in the care of a paternal uncle and aunt, both Dutch nationals. The applicant’s presumed father died in April, 1999. The applicant continued living in the Netherlands, and attended primary school, secondary school, and a culinary school afterwards. He discovered he was not a Dutch national in 2004. He did so in circumstances where he was unable to obtain a certificate needed for his school. He engaged in the use of drugs, and was unable to concentrate on academic work or training work. He committed four sex offences. In September, 2006, he applied for a temporary residence permit for an extended family reunion with his foster parents. At that point, he stated that he had always assumed that he was Dutch. The authorities, however, rejected the application and a temporary residence permit because of the offences he had committed. In June, 2008, the applicant was convicted of further offences. The courts in the Netherlands found that there was no registration of the applicant and no proof that his deceased presumed father was actually his father.

134.     Ultimately, the Council of State in the Netherlands engaged in a balancing of rights protected under Article 8 of the Convention against the seriousness of the offences committed by the applicant and decided that the offences were too serious to be ignored. In 2016, after the application before the court, the applicant went to Indonesia where he signed a declaration and agreed to the discontinuation of any pending proceedings aimed at obtaining a resident’s permit.

135.     In those circumstances, the applicant complained to the ECtHR that the refusal by the Dutch authorities to grant him a residence permit amounted to a violation of Article 8 of the Convention. Against these unusual facts, the court concluded that there had been no violation of Article 8 of the Convention. The court noted that the applicant did have a private life in the Netherlands.

The Guidelines Reiterated in Pormes

136.     But, again, reiterating its consistent approach, the ECtHR held that what was under challenge was whether he had a family life to be protected under Article 8 of the Convention, and that the protection of Article 8 should be granted to adults whose dependency involved more than normal emotional ties. Again reiterating its long-established case law, the court also recalled the right of a state to control the entry of persons within its territory and their residency rights. It yet again reiterated that the Convention did not guarantee the right of a foreign national to enter or to reside in a particular country. It reiterated that contracting parties had the right to expel foreigner convicted of criminal offences in order to maintain public order. It made clear that, hitherto, persons who had already been granted a right of residence in a host country were not formally “settled migrants”, and that there were rules protecting them. If they were settled migrants there would have to be grave reasons to justify expulsions. But the applicant could not be considered a settled migrant.

137.     Against that unusual, perhaps unique, background, the court examined whether Article 8 imposed positive obligations on the contracting state to allow him to exercise his private life in the Netherlands. But, in doing so, the court again took into account the established criteria: the extent to which family life was effectively ruptured; the extent of ties in the Netherlands; whether there were insurmountable obstacles in the way of the family living in the country of origin of one or more of them; whether there were factors of immigration control; or considerations of public order weighing in favour of exclusion.

138.     For present purposes, what is significant is that the ECtHR concluded that the applicant did not enjoy a “settled status”, therefore, the Dutch authorities did not have to apply “very serious reasons” to justify the applicant’s expulsion. Even while observing that the applicant had formed strong ties with the Netherlands, and had no such connection with Indonesia, the court held that the criminal offences committed by the applicant militated against his claim and in favour of the Dutch authorities.

139.     The ECtHR conducted a proportionality analysis, balancing the applicant’s relations with the Netherlands, and the risk that the crimes committed posed to society. It found in favour of the government, making the observation that the outcome of the balancing exercise would have been different if the applicant had not committed the offences in question. But, on the facts of the case, the court held the interest of the state outweighed the interests of the applicant.

140.     While it is evident that the ECtHR in this case yet again did carry out a proportionality analysis, the court did not apply a predetermined weighting process on the unusual facts. The ECtHR decidedly did not adopt an approach where to answer the first two Razgar questions might be determinative. On the facts of this highly unique case, the court felt justified in adopting a “neutral test”.

141.     But there is nothing to show this was a new approach. This was a unique case where the applicant qualified neither as a settled migrant, nor as an alien who had to be aware of the precariousness of his immigration status from the outset. Consequently, as regards the balancing of interests, it could neither be said that the refusal of a residence permit would require very serious reasons to be justified under Article 8 of the Convention, nor that it would violate that provision only in very exceptional circumstances. Instead, on those highly unusual facts, the assessment had to be carried out from a neutral starting point, taking into account the specific circumstances of the applicant’s case.

142.     There is nothing in Pormes to indicate that it constitutes a substantial sea change in the clear and constant jurisprudence of the ECtHR. Rather, it is an analysis of an extremely exceptional case where, again, the issue of proportionality was discussed only after an identification of the relevant facts and circumstances, with a view to determining whether they were exceptional; then the countervailing factors; and, finally, the issue of proportionality. This has been the consistent approach. No minimum gravity or physical and moral integrity test arose.

Criminality more generally

143.     The question of the effect on family life of deportation in “criminality cases” does not arise in the appeal now before this Court. It was considered in a number of cases, including Boultif v. Switzerland [2001] ECHR 497; Uner v. The Netherlands [2007] 45 EHRR 14; and Bajsultanov v. Austria (Application no. 54131/10) 4 October 2013, (paras. 91-93); and see Stanley, Immigration and Citizenship Law, 2017, Thomson Reuters, C.11.33, et. seq.

Hoti v. Croatia; Keita v. Hungary

144.     The cases of Hoti v. Croatia, Application No. 663311/4, 26 April 2018, and Keita v. Hungary, Application No. 42321/15, 6 July 2021, [2022] EHRR 5, both fall into a very exceptional category, that is, very long-term residence in host states over a period of decades of persons who were denied legal status, and who found themselves effectively rendered stateless.

C v. Belgium

145.     I mention for completeness that, in C v. Belgium, Application No. 21794/93, 7 August 1996, the ECtHR had, much earlier, an occasion to consider whether the respondent state had infringed the applicant’s right to the respect for his private and family life under Article 8. The court found the applicant did have a private life in Belgium, based on his family ties, schooling, and the fact that he worked there (para. 25). But this was after the applicant had been in Belgium for 20 years. The court then went on to consider that the applicant, although married and had a child, was later divorced.

146.     A factor to which the court attached particular significance, however, was that the applicant had been convicted on serious drug charges, and sentenced to prison for five years, subsequent to which he was issued with a deportation order. The court attached great importance to the seriousness of the offences. Bearing all the circumstances in mind, the court held that the Belgian authorities had not failed to strike a fair balance between the relevant interests, and accordingly there had been no violation of Article 8. Such private life was not seen as determinative. Engagement in the labour market may be a factor only in cases where there has been a very long period of residence. (See also Niemietz v. Germany, judgment of 16 December 1992, Series A, No. 251-B, p.33, para. 29; Fernandez Martinez v. Spain, Application No. 56030/07, 12 June 2014, paras. 109 - 116, and 152).

A Summary of the ECtHR Approach

147.     In summary, then, it is true the Strasbourg case law in this field is fact intensive. It is nuanced, as might be expected. But the approach adopted is consistent. It seeks to identify the circumstances of each case in an open-ended way. In the course of doing so, the court may, on occasion, adopt an approach of simultaneously identifying the facts, along with the exceptional circumstances, such as family or other links, which distinguish the case at hand from the general norm.

148.     The ECtHR takes into account what may be seen as countervailing factors, such as anti-social activity or a serious criminal record, which may count against any exceptional circumstances in a proportionality analysis, balancing the rights of the individual versus the rights of the community and the common good. But also relevant is the fact that, in its consideration of individual cases, the ECtHR applies a relatively low threshold as to when Article 8(1) is actually “engaged”. The questions of minimum gravity or effect on physical and moral integrity do not arise in answering the question of whether the rights exist, but fall for consideration in the assessment of whether there is likely to be an impact of sufficient gravity to require the decision maker to weigh the factors for and against granting the application.

149.     One of the difficulties in the argument for which the State contends is the fact that only a small number of applications to remain by unsettled migrants are likely to succeed. This occurs in what have been called “exceptional cases”. But this does not mean that before a person is entitled to have the application dealt with in accordance with the legal principles in the authorities, and the requirements of s.49, that the circumstances of the individual must, in themselves, be “exceptional”. This fact is noted in Hogan J.’s judgment and commented upon in a great number of the authorities. However, the latter is an observation regarding the “result” of the decision-making process, and not the method to be engaged.

150.     It is not that exceptionality has to be shown before the decision-maker should embark upon a consideration of whether Article 8 rights exist, or are likely to be breached, but, rather, that the test, involving, as it does, a requirement to reconcile the right of the individual with that of the State to control its borders, imposes a high bar which is met “in its application” in relatively few cases. It is important, therefore, not to conflate the results of the process with the test that is applied, and the decision of the High Court relies on an analysis of binding authorities which do precisely that. The quotation from Huang earlier makes the point well.

151.     The task of first instance decision-makers is not always easy. Without in any way seeking to derogate from or confuse the Razgar questions, it appears that the issues which fall to be considered are engagement of Article 8(1); any distinguishing Article 8(1) features in the context of private and family life or other links within the receiving state; countervailing Article 8(2) considerations, or obstacles to removal, followed by a proportionality analysis. The fact that the process is sometimes telescoped does not detract from the generality of application.

152.     But an approach posing the Razgar questions (i) and (ii) out of sequence, and going no further, at minimum, risks creating what might be an insurmountable bar, when considering whether Article 8 ECHR rights are in question. Still more so when these are the only questions considered. As the ECtHR jurisprudence makes clear, there may be limited exceptional circumstances in which an unsettled migrant may establish an entitlement to protection under Article 8.

153.     But, absent such circumstances, the procedure will very frequently lead to the consequence that, as the status of a migrant is unsettled or precarious, he or she will not ultimately be entitled to an Article 8 protection, even following a proportionality analysis. In short, it seems to me that the Razgar questions, if used, should, when posed in the case of an individual or family, be asked in the sequence in which they were placed by Lord Bingham. But, in the context of private and family life cases, the question of physical and moral integrity does not arise. What was enunciated in Costello-Roberts and Bensaid must be seen in the context of their respective fields of applications. Nnyanzi does not form part of a clear and consistent ECtHR approach. Thus, the judgment in CI cannot now be said to reflect clear and consistent ECtHR jurisprudence.

154.     Insofar as the High Court judgment in SA deals with these same issues, similar observations apply to it. But this is not all. If Razgar is to be applied, what follows is that decision-makers should address all five questions in sequence; beginning with directly answering the Razgar question (i): whether the proposed removal will be an interference by a public authority with an applicant’s right to respect for his or her private and family life Avoiding the question or rephrasing it is not an application of the test, and does not reflect ECtHR case law. But the fact that the answer to the first question is “yes” is, in no sense, determinative of whether there is a violation of Article 8 seen as a whole. Persuasive case law from the neighbouring jurisdiction affirms this conclusion.

 

 

Persuasive Authorities

AG (Eritrea) v. Secretary of State for the Home Department

155.     The essentiality of the fifth, proportionality, test is discussed in case law from the neighbouring jurisdiction. Proceeding chronologically, in AG (Eritrea) v. Secretary of State for the Home Department [2008] 2 All ER 28, the Court of Appeal of England and Wales (Sedley, Maurice Kay, and Lawrence Collins, LJJ.) pointed out that, as a matter of United Kingdom law, there was no actual test of exceptionality in the application of Article 8 of the Convention, but that removal from the United Kingdom would only exceptionally be found to be disproportionate. It is important to emphasise this is the result of applying the approach: but it is not an expression of the test to be applied. There was, however, no formal test of exceptionality, and no hurdles beyond those contained in Article 8 itself. While an interference with private or family life had to be real if it were to engage Article 8(1), the threshold of engagement was not especially high. Once the Article was engaged, the focus moved to the process of identification under Article 8(2) which, in all cases which engaged Article 8(1), would determine whether there had been a breach of the Article.

156.     In normal circumstances, interference with family life would be justified by the requirements of immigration law, but a different approach could be justified in a small minority of exceptional cases, identifiable only on a case-by-case basis. Whether a particular case fell within that limited category was a question of judgment for the tribunal of fact, and normally raised no issue of law. The expectation that it would be exceptional for recourse to Article 8, read as a whole, to overcome the otherwise lawful removal of a claimant from the jurisdiction turned on the relative weight of Article 8(1) interference against that of relevant factors that went to justification under Article 8(2), including, in particular, the public interest in maintaining an effective system of immigration control. Exceptionality, to the extent that it survived as a consideration, came in at the Article 8(2) stage in drawing the balance between the severity in the nature and consequences of the facts constituting the Article 8(1) interference, and the importance in the circumstances of the countervailing Article 8(2) factors present going to justification.

157.     The court went on to observe that in the determination of proportionality, courts and tribunals should have a proper and visible regard to the relevant principles in making a structured decision case-by-case. It was not sufficient for a tribunal simply to characterise something as “proportionate” or “disproportionate”; to do so could well be a failure of reasoning amounting to an error of law. But there would be many cases in which it could properly be said by an appellate tribunal that, on no view of the facts, could removal be disproportionate, and, in such cases, even if an Asylum and Immigration Tribunal had applied the wrong test, permission to appeal to the Court of Appeal was unlikely to be given. Suitably adapted to the procedure in this State, this is a succinct and helpful summary.

Ali v. Secretary of State for the Home Department

158.     The importance of a proportionality analysis was considered in depth in the judgments of the Supreme Court of the United Kingdom in R. (Ali) v. Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR  4799. Ali concerned an application of a person who was characterised as a “foreign criminal” for the purposes of s.32 of the UK Borders Act, 2007. But the observations of Lord Reed JSC are highly relevant, and impressively reasoned.

159.     Having first identified the ECtHR criteria applicable in cases of deportation of a settled migrant, such as Boultif v. Switzerland [2001] 33 EHRR 50; Ȕner v. Netherlands [2007] 45 EHRR 14; and Maslov v. Austria [2009] INLR 47, Lord Reed went on to point out that the Grand Chamber had noted in Jeunesse v Netherlands (2015) 60 EHRR 17, para 105, these criteria could not be transposed automatically to the situation of a person who is not a settled migrant but an alien seeking admission to a host country: a category which included, as Jeunesse demonstrated, a person who has been unlawfully resident in the host country for many years.

160.     The ECtHR analysed the situation in Jeunesse of a person facing expulsion for reasons of immigration control rather than deportation on account of criminal behaviour, as raising the question whether the authorities of the host country were under a duty, pursuant to Article 8, to grant the person the necessary permission to enable her to exercise her right to family life on their territory. The situation was thus analysed not as one in which the host country was interfering with the person’s right to respect for her private and family life, raising the question whether the interference was justified under Article 8(2). Instead, the situation had been approached as one in which the person was effectively asserting that her right to respect for her private and family life, under Article 8(1), which arguably imposed on the host country an obligation to permit her to continue to reside there, and the question then was whether such an obligation was indeed imposed (para. 27).

161.     Lord Reed summarised the criteria identified in Jeunesse, pointing out that, in addition to identifying the issue there as concerning a positive obligation under Article 8(1) rather than a negative obligation under Article 8(2), the court in Strasbourg also identified a number of factors as being relevant: the extent to which family life would effectively be ruptured; the extent of the ties in the contracting state; whether there were insurmountable obstacles in the way of the family living in the country of origin of the alien concerned; and whether there were factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion.

162.     The judgment pointed out that another important consideration was said to be whether 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 outset be precarious. Where that was the case, the court in Strasbourg had said that “it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of article 8” (Jeunesse, para 108).

163.     Lord Reed observed that Strasbourg had found there to be exceptional circumstances in situations where, notwithstanding the importance of that consideration, removal failed to strike a fair balance between the competing interests involved. In the Jeunesse case, for example, a prolonged delay in removing the applicant from the host country, during which time she had developed strong family and social ties there, constituted exceptional circumstances leading to the conclusion that a fair balance had not been struck (paras 121-122 of Ali).

164.     The Supreme Court of the United Kingdom dealt with proportionality. Whether the situation was analysed in terms of positive or negative obligations was unlikely to be of substantial importance. The “weighing process” which involved an assessment of whether the person enjoyed private or family life depended on the facts relating to his relationships with others: whether, for example, he was married or had children. Where a person did enjoy private or family life in the UK, he or she had a right under Article 8 to respect for that life, whatever their immigration status might be (although that status might greatly affect the weight to be given to the Article 8 right, as Jeunesse made clear).

165.     A structured approach to decision-making is always helpful. In Ali, the then Lord Chief Justice, Lord Thomas of Cwmgiedd, suggested that first, the judges should, after making their factual determination, set out, in clear and succinct terms, their reasoning for the conclusion arrived at, through balancing the necessary considerations. One way would be for the decision-maker would be to set out the “pros and cons”, and then set out reasoned conclusions as to the countervailing factors, and then set out the reasoned conclusions as to whether the countervailing Article 8 factors outweighed the importance attached to the public interest in the deportation of foreign offenders.

 

 

Limited Category of Exceptionality

166.     The ECtHR approach has been summarised earlier. But as the Strasbourg jurisprudence makes clear that exceptionality is, in fact, found in a very limited category of cases, as in Butt, Rodrigues da Silva; and Jeunesse. On the case law considered, the existence of substantial family ties in the receiving state, with the effect that deportation would substantially disrupt those family ties can be a factor. So, too, can ignorance or unawareness of legal status (Butt/Pormes). Effective statelessness was held to come within the description, as in Hoti and Keita, although neither of these were, in fact, immigration cases in the true sense, but rather sui generis instances concerning persons rendered stateless, where the applicants had been residing in the host state for many years. So, also, social ties might be a factor, but there is nothing in the case law to indicate that, seen alone, as opposed to cumulatively, such ties form part of the consistent jurisprudence of the court. Similarly, with economic ties. The fact of working within a state may also be a factor, but no more, in cases where an applicant has been in residence for decades. Against these, there must be weighed the general State interest in maintaining the integrity of its borders, a sovereignty consideration.

167.     In fact, in this appeal, how the case was characterised by the parties partially missed the point. The true issue did not lie in exceptionality of the facts, rather, the approach itself which must involve proportionality in decision-making, in order to balance the factors to be weighed between Article 8(1) and Article 8(2) considerations. It is a process which will be subject to margin of appreciation (Pormes).

168.     It is also important to emphasise that duration of stay or residence does not itself form part of the consistent Strasbourg jurisprudence, but may only become a factor in exceptional cases of very lengthy residence.

169.     But what follows from the fact that Article 8 is “engaged”, whether it be in the case of an individual or a family, is that, operating within the margin of appreciation, which is fundamental to the Convention, a decision-maker may have to take into account such factors, even though the status of a migrant or migrant family is unsettled. These factors, of varying weight, must be weighed against the important general State interest in maintaining its borders and, the integrity of an orderly immigration system, a right of sovereignty. But the fact that the balance will not frequently be resolved in favour of the unsettled migrant does not mean that the process should, in effect, be “short circuited”. At the outset, it should be open-ended in its description of the circumstances and approach to engagement of the right.

170.     It should be emphasised, however, that the effect of this judgment should not be over-interpreted. In the past, even the fact of posing the first two Razgar questions, including considering gravity, would frequently have resulted in a consideration of what were, in substance, many of the same factors as would have arisen in a formal, question (v), proportionality analysis. I turn to the facts of this case.

Application to the facts

171.     The Razgar questions are, it is true, a recommendation. They are also hierarchical. But, it must be noted, Razgar is not part of ECtHR case law. The question in this case of whether Article 8(1) was engaged is a relatively simple one, but was not directly addressed in the decision-making in this case, even though there was some material before the decision-makers upon which conclusions on that first question might have been drawn. The question of “engagement” does not involve an especially high threshold. It is unnecessary to repeat the manner in which questions (i) and (ii) were elided and inverted.

172.     The fact that engagement of Article 8.1 was not considered led to the consequence in this case that any formal consideration of the Razgar questions ended after the first two had been outlined, but not, in fact, directly answered so far as engagement was concerned. The appellant was not granted the formal procedure of assessment which has been identified by the ECtHR in its jurisprudence, or, for that matter, in the case law of England and Wales.

173.     If Razgar was to be applied, all five questions should have been addressed, including that of proportionality. The question of the rights of the State, of course, remains a significant and weighty consideration. An applicant’s circumstances will seldom outweigh the rights of a contracting state. But, if the first question is answered positively, it does not at all follow that the “remaining questions somehow fall like a house of cards”, as the High Court judge put it in CI (High Court in CI, para. 27). But, if question (i) gives the answer “yes”, then all remaining questions should be addressed.

174.     Put in a more detailed and hopefully succinct way: the first instance decision impugned contained the following flaws. First, the word “potential” was transposed from question (ii) to question (i). Second, questions (i) and (ii) were then addressed in reverse order, with the consequence that engagement was never directly addressed. Third, the decision-maker only answered the first two questions. Fourth, as a result, the Minister denied the appellant a proportionality assessment to which he was entitled.

175.     With all respect to the decision-makers, a consideration of the decisions in this case leaves the disturbing impression that the legal principles quoted, and qualifications to them, were not always fully understood. Had they been understood, their applicability to the decision would have been evident. Whether the appellant was in a position to show exceptionality is not the point. It is not necessary to repeat the passage quoted from para. 41 of the CI judgment on the possibility of private life arising from relationships, including educational and social ties formed at a time when the appellant’s status was precarious, was sufficient for the issue to have been given consideration. (See para. 31 of this judgment.) But that was said in the context of considering the gravity of the consequences of deportation. I do not think that the flaws in this decision were merely technical and, therefore, remediable. The decision-making process was not in accordance with law.

176.     In the ultimate analysis then, the form of procedure identified in, or drawn from, CI did not accord with relevant ECtHR principles on private and family life. While the CI judgment must be seen in its full context, and with hindsight, it cannot be said, either that it did so in a manner compatible with the clear, consistent ECtHR approach, either then, or in subsequently enunciated case law.

177.     The High Court judge in this case actually did follow the law as cited. But it must follow that the decision by the High Court in this case, which applied a “CI approach”, itself, did not take regard of the appropriate ECtHR case law, though the judge applied CI as a binding authority. This was no fault of the trial judge. It follows that the High Court judgment must be set aside.

178.     The position regarding remedy was not cured by the decision-maker later utilising some language of proportionality in speaking of a consideration of “all the facts and circumstances”. Any subsequent part of the decision began from an incorrect starting point, not asking whether Article 8 was engaged, but whether any interference with the appellant’s Article 8(1) rights would be of such gravity as to engage Article 8 ECHR. Whatever might be the position as to the merits of the case, and how the factors might have been weighed in a proportionality assessment, it must be said that the actual procedure was incorrectly premised, thereafter flawed, and not in accordance with law. It follows that the Minister’s decision must in my opinion be quashed. In my view, the denial of rights is too serious to be dealt with simply by a reference in the decision to what might, or might not, have been the evidence on private and family life before the decision-maker. This issue is further considered under the heading of remedy. The question of constitutional rights must now be considered.

The Constitution

179.     Article 40.3.1 of the Constitution provides:

“1°      The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2°         The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”

180.     Article 40.6.1(iii) guarantees, subject to public order and morality, “the right of the citizens to form associations and unions”. In the first national language, the same sub-section provides: “iii Ceart na saoránach chun comhlachais agus cumainn a bhunú.” It goes on to provide: “Laws, however, may be enacted for the regulation and control in the public interest of the exercise of the foregoing right.” In cases of doubt, the Irish language version is to be preferred over the English version.

181.     In his judgment, my colleague, Hogan J., would locate the “right to private life” arising in this case, as derived from Article 40.6.1(iii) of the Constitution (hereinafter “the sub-section”). He takes the view that the right in question differs from the concept of privacy considered by this Court in cases such as McGee v. Attorney General [1974] IR 284; Norris v. Attorney General [1984] IR 36; or, in the High Court, in Kennedy v. Ireland [1987] I.R. 587.  Hogan J. expresses a view that the right to a private life is essentially associational in nature, and therefore similar in language to Article 8.

182.     While I entirely respect the reasons underlying this proposal, and though I see force in his view, I am unable to fully agree. In my view, the rights in this case very largely derive from the right to privacy, which is derived from Article 40.3 of the Constitution. But, I think, further consideration of this issue should be reserved to another case. Subject to that proviso, I would make the following observations.

183.     The more limited scope of Article 40.6.1(iii) can be discerned from its wording in English or Irish. I do not think that the sub-section deals with “freedom of association” generally. Rather, Article 40.6.1(iii) protects the right of citizens to form associations (plural) and unions. The usage of the Irish word “bhunú” in the Irish language is highly significant. This translates into English as “to establish or found”. It does not mean to “make” friends, or to “associate” in that way.

184.     The usage of the word “comhlachais” (association) supports this view. As in the English text, it is phrased in the plural. What is in question in the constitutional sub-section, in my view, is the right to establish or found, associations, or unions, such as clubs or trade unions. The term “associations” can also be interpreted by reference to its neighbouring word “unions”. The sub-section is, therefore, in my view, significantly more limited in its scope than my colleague would propose.

185.     The relevant chapter of Kelly on The Constitution sets out the matter succinctly (cf. Kelly, The Irish Constitution, 5^th Edition, Hogan, White, Kenny, Walsh, Bloomsbury, 2018, Chapter 7.6.170).

186.     In the first paragraph of that text, the learned authors write that the guarantee of “freedom of association” has been considered primarily in relation to the role of trade unions, though there is also some jurisprudence in respect of the guarantee in the law regulating political parties and social clubs.

187.     I entirely agree with that description of the case law as to scope. There is a passage quoted when Murnaghan J. wrote that each citizen is “free to associate with others of his choice”. But, there, the judge was speaking in the context of trade union membership, the matter in issue in National Union of Railwaymen v. Sullivan [1947] I.R 77. The context is clear from the surrounding text.

188.     When Hardiman J. discussed freedom of association, as a pre-existing natural right inhering in humankind, in Equality Authority v. Portmarnock Golf Club [2010] I.R. 671, he was discussing the Article 40.6.1(iii) right in the context of freedom of speech, to organise for industrial purposes, take part in elections, or to participate in sports. But there, although the scope is slightly wider, he was speaking in the context of membership of a club.  

189.     Rather than the broad scope envisaged in Hogan J.’s judgment, it seems to me that the thinking behind the sub-section directly addresses rights of association, dissociation, and negotiation, in the industrial relations context, with regard to the conduct of elections, and the potential political activities of civil servants. While there may be some overlap, I do not think the text of the sub-section to allow a broad interpretation of the type now suggested.

190.     Moreover, I consider the intended limited scope of the sub-section makes clear that the right is to be exercised subject to public order and morality. It is not easy to conceive how a general right to make friends, pursue a course of education, advance one’s career, or engage in a variety of recreational and sporting activities, should be governed by public order or morality, or should, generally, require regulatory laws.

191.     Indeed, it might be said that the description of the elements of the Article 40.6.1(iii) right said by my colleague to be derived from the sub-section bears strong resemblance to those features enunciated by O’Higgins C.J. in G. v. An Bord Uchtála [1980] I.R. 32, where the then Chief Justice referred to the rights of children to be fed, to live, to be reared, and to be educated, and to have the opportunity of working, and realising his or her full personality and dignity as a human being. But, significantly, the then Chief Justice located such rights as falling to be protected and vindicated by the State under Article 40.3 of the Constitution, and not elsewhere.

192.     The broad range of the right of privacy was identified in the minority judgment of Henchy J. in Norris, now recognised as containing an authoritative description of the right involving “a complex of rights, varying in nature, purpose, and range, each necessarily a facet of the citizen’s core of individuality within the constitutional order”.

193.     In NHV v. The Minister for Justice & Equality [2018] I.R. 246, O’Donnell J., as he then was, addressed the rights of a non-citizen, including an asylum seeker, to invoke an unenumerated derived personal right, including possibly the right to work as guaranteed under Article 40.3 of the Constitution.

194.     I should say immediately that, in my view, a categorisation of the right involved under Article 40.3 of the Constitution would not deprive the decision-makers’ process in question of a balancing consideration. The critical word in Article 40.3 is the term “practicable”. What is “practicable” must necessarily be subject to public order and morality. The concept of “unjust attack” could only arise as being where there is an “attack” not in accordance with law. There would not be an injustice if a right in question was delimited according to the concepts of common good, public order and morality, all of which underlie the entirety of the Constitution from the Preamble to its conclusion.

195.     Therefore, any decision-making, were it under Article 40.3 or Article 40.6, would necessarily involve a balancing exercise based on the concept of proportionality, balancing the rights of the individual, on the one hand, and considerations of common good, public order and morality, on the other. For my own part, I would locate the rights in question as arising under Article 40.3, although I concede the potential for some degree of overlap with the Article 40.6.

Remedy

196.     This leads back to the question of remedy. What has occurred in this case, unfortunately, appears to reflect a systemic problem. This is profoundly to be regretted from every standpoint, and not just that of the appellant. The Minister did not apply ECtHR principles correctly. The decisions in question were made in 2019.  This was not, of course, the fault of the then Minister, or the present Minister, personally. But what is in issue in this case is the integrity of the immigration system of the State. The State is entitled to control its borders, and make laws concerning immigration and international protection. That is an aspect of sovereignty. But, the integrity of the immigration system also hinges on the application of the rule of law. In my view, a fundamental issue arises here regarding that concept.

 

 

 

A Constitutional Remedy

197.     My colleagues, the Chief Justice, Hogan J. and O’Malley J. would not grant the appellant a remedy. Unfortunately, I respectfully disagree. For convenience, I refer to them on this section as the “majority on remedy”, or, simply, “the majority”.

198.     The constitutional remedy of certiorari has, as its primary purpose, the preservation of order in the legal system by preventing excess and abuse of power, rather than the final determination of rights. Whether the law applied in this case be through the Convention, or the Constitution, the principle of where there is a wrong there must be a remedy applies. In The State (Abenglen Properties Ltd.) v. Dublin Corporation [1984] I.R. 381, O’Higgins C.J. described certiorari as “the great remedy available to citizens” concerning those who have legal authority to affect the rights of such citizens who have the duty to act judicially in accordance with the law and the Constitution, whose acts in excess of such legal authority are contrary to law.

199.     In this case, it cannot be in dispute that the appellant has been denied his rights to a decision in accordance with law. Whether viewed from a Convention or Constitutional standpoint, the Minister’s decision was not in accordance with law. It contains errors of law, which all other things being equal, would render it void, not voidable. There are, too, serious errors on the face of the record of the decision.

200.     The appellant himself did not engage in any misconduct in the proceedings which might go to the issue as to whether or not he should be granted the relief of certiorari, as a matter of discretion, or for compelling legal reasons. (cf. Smith v. Minister for Justice and Equality & Ors., [2013] IESC 4discussed later). The appellant has been the subject of a legal wrong, in the sense that the Minister’s decisions were not in accordance with law. He is entitled to a legal remedy.

201.     The legal maxim ubi jus, ibi remedium (where there is a right, there is a remedy) is of immense antiquity. It finds its origins as an ancient maxim of the common law. It is quoted in Blackstone’s Commentaries, Volume 3, 1723-1780. It was repeated by Chief Justice Marshall in the United States Supreme Court, as long ago as 1803, in Marbury v. Madison [1803] 5 US 137. There, quoting Blackstone, Marshall C.J. stated, in terms:

“It is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded …”.

The great jurist identified this rule as a settled and invariable practice, to the effect that “every right when withheld must have a remedy, and every injury its proper redress”.

202.     Whether or not myself and Baker J. (with whose clearly reasoned, concise judgment I entirely agree), are correct, or the majority are correct on remedy, the appellant had the right to have his application dealt with in accordance with the Convention and the Constitution. The Minister did not do so under either heading. It is undisputed that the impugned orders did not contain any consideration of the appellant’s constitutional rights at all. The purported application of Article 8 of the Convention was fundamentally defective, in the ways sought to be identified in this judgment, and acknowledged in the other judgments. The decision is not of devoid of consequence: To the contrary, if not quashed, the decisions render the appellant amenable to an order for his deportation.

Certiorari

203.     It is true that certiorari is a discretionary remedy. A court will refuse the remedy when it is just and proper to do so (State (Cusson) v. Brennan [1981] I.R. 181). The courts recognise that there may be transcendent considerations of public policy which make the remedy “undesirable, impractical or impossible”. (Murphy v. Attorney General [1982] I.R. 241). But, unlike in Murphy, what has happened in the appellant’s case could be undone by remittal. This is not either a situation where for public policy reasons force must be given to a void statute. (A v. Governor of Arbour Hill Prison [2006] I.R. 88). Nor is it a case where the appellant failed to make his case in a timely way (Q v. Mental Health Commission [2007] 3 IR 755). Instead, it is said, the result on remittal would necessarily be the same.

Luximon

204.     The judgment of this Court in Luximon v. The Minister for Justice & Equality [2018] 2 IR 542 has a considerable bearing on the issue and the remedy. There, this Court (Clarke C.J., O’Donnell, MacMenamin, Dunne and O’Malley JJ.) accepted that, when considering the Minister’s “function” under s.4(7) of the Immigration Act, 2004, such function should be “performed” in accordance with the clear tenor of the relevant ECtHR jurisprudence. The Court held that the provision fell to be interpreted in the light of that jurisprudence, and that the Minister’s consideration of the decision not to renew the application of non-nationals to be in the State should have been carried out in accordance with Article 8 ECHR rights where necessary at the time of that assessment, and at a time when the applicants remained in the State. The Court held that this was not done. The section was not, therefore, being applied, or operated, in a manner compliant with s.3 of the 2003 Act (para. 85). The Court granted certiorari and remitted the case for reconsideration.

 

 

The judgments of my colleagues in the majority

205.     I have had the opportunity of reading the judgments of the Chief Justice, O’Malley J. and Hogan J. I hope it is no disservice to the full and comprehensive judgment of the Chief Justice to summarise his findings as being, first, that, for reasons he sets out, there was no breach of Article 8, and that the claim should not be remitted for rehearing on the basis that, even on the correct application of Convention legal principles, the outcome would inevitably be the same. O’Malley J. and Hogan J. concur. I respectfully differ from that conclusion for a number of reasons.

Elapse of Time

206.     First, a period of three years has elapsed between the decision and this judgment. This Court is unaware of what has happened in the appellant’s life during that time. The Court has not heard any evidence in relation to what has happened during that period. But in a merits consideration there is a duty to obtain up-to-date information concerning an applicant such as the appellant.

Conduct of the Appellant

207.     Second, I think there is a departure from precedent regarding the grant of certiorari. The Court granted that relief in Luximon. Baker J. also fully deals with this question. It is true that certiorari can be refused for what were described in Smith v. Minister for Justice & Equality & Ors. as “compelling legal reasons”. There, the conduct of the appellant was so egregious that it was inconceivable that, on remittal, a deciding officer would reach a conclusion other than deportation, despite the fact that Article 8 rights were invoked. The appellant had misconducted himself in the proceedings. His own conduct was directly at variance from the Article 8 right which he sought to assert. He had been guilty of serious criminal conduct in the United Kingdom, for which he had been sentenced to prison. He had not supported his family, whose rights he sought to invoke under Article 8.

208.     It is sufficient to say that the facts of this case are very different. There is no evidence that the appellant, MK, misconducted himself in the proceedings, or at any time during his residence in the State.

209.     While one can accept that, in some instances, a situation might arise where remittal might be superficially comparable to a mathematical equation, I would respond that what is mathematically right is different from what is legally right. The more so, when what is placed at one side of the equation is altered by the judgment of this Court, but as to the other side of the equation - the appellant’s private life - any description of change is not taken into account and, for the purposes of assessment, remains “frozen” in 2019. A mathematical outcome which is the product of a flawed algorithm may, occasionally, produce the “correct” mathematical result, but, in law, the process here was still flawed from the outset and, in my view, remained so, tainting the decision.

Statutory Application: Section 2 of the 2003 Act

210.     Third, both the Minister’s decision-makers and the courts are bound by statute, albeit in different ways. The statute in this instance is the European Convention on Human Rights Act, 2003. That Act imposes a number of statutory duties.

211.     There is no doubt that the Minister is “an organ of State”, as defined in s.1 of the Act. Thus, her decisions are governed by Convention principles. The deciding officers, and reviewers, are persons who operate under a system “established by law” ( see, Luximon).

212.     Under s.2(1) of the same Act, the courts are to apply statutory provisions, in so far as possible. It may well be that, in certain instances, there could be a tension between the question of application, and that which is possible. (See Judicial Interpretation of the European Convention on Human Rights Act 2003, Reflections and Analysis, Doyle & Ryan, DULJ (2011)). But I am unable to discern any basis upon which it could be said that the remedy of certiorari, which is a discretionary remedy, could in this case be impossible. Administrative difficulty is not an appropriate touchstone.

213.     In Donegan v. Dublin City Council [2012] 3 IR 600, this Court (Murray C.J., Hardiman, Fennelly, Finnegan and McKechnie JJ.) observed that the legislature had directed that every statutory provision or rule should be given a construction compliant with the State’s obligations under the European Convention on Human Rights. The Court went on to hold that if such a construction was reasonably open, it should prevail over any other construction, which although reasonably open, was not compliant with the Convention. Even in cases of doubt, an interpretation in conformity with the Convention should be preferred; however, this task must be performed subject to the rules of law regarding interpretation and application, which included common law and statute law. (See para. 109.) No question arises that the application of the ECHR would be contra legem or contrary to some core principle of law which has been laid down by statute. I do not understand, therefore, how it can be said that there is any rule of law precluding a finding that the Minister acted contrary to that statute and granting what in normal course would be the usual remedy.

Statutory Application: Sections 3 and 4 of the 2003 Act

214.     Fourth, there is a question of statutory interpretation and application under s.3(1) of the 2003 Act. It is provided that, subject to other provisions and the law, or rule of law:

“Every organ of the State shall perform its functions in a manner compatible with the State's obligations under the Convention provisions”. (Emphasis added)

215.     Under s.4, it is provided that judicial notice shall be taken of the Convention provisions and any judgment of the European Court of Human Rights and, when interpreting and applying the Convention provisions, a court shall “take due account of the principles … laid down by those … judgments”. As I find I am bound by views of the majority, I nonetheless consider the following observations must be made.

216.     As this Court held in Luximon, the term “manner” in s.3(1) obviously relates to how the State’s obligations are to be performed by the Minister. In this appeal, the Court is, as I understand matters, unanimous that the Minister did not perform her obligations in a way compliant with Convention provisions, as explained in ECtHR case law of which this Court shall take judicial notice. The term “compatible” is defined in the Concise Oxford Dictionary as “able to exist or to be used together without problem and/or conflict”.

217.     But the two words “manner” and “compatible” cannot be divorced from each other. Whether or not a decision, or series of decisions, are compatible with the Convention must hinge on the decision in question being carried out in a manner laid down by Convention principles. The form of performance is identified in the ECtHR case law referred to in this judgment. For this reason, no distinction can be made between the approach and the outcome.

218.     It must follow that, in applying the flawed approach said to be derived from the judgment of the Court of Appeal in CI, the decision in question was not consistent or compatible with ECHR principles, not least because the way in which the decision was arrived at was not on the basis of principles laid down in ECtHR case law. In my view, it must follow that the Minister was in breach of her statutory duty as provided under s.3(1) of the 2003 Act.

A Departure from Principle

219.     Fifth, while this issue has been dealt with in part earlier, there is a further aspect to the question of principle. Both this judgment, and the judgment of Baker J., set out what I consider are strong arguments for concluding that the approach proposed to be adopted in this case constitutes a departure from accepted principles governing the important remedy of certiorari. Certiorari does not permit of a merits-based assessment. Rather, it raises the antecedent question of whether the decision in question was within jurisdiction.

220.     In my view, the decision in this case was made in excess of jurisdiction. The fundamental question is, therefore, whether the decision was lawful. The answer can only be in the negative, and cannot, in my view, be remedied by a process of severing form and substance, in a manner be it said, which stands in some contrast with Luximon, although there, it is true, the Minister had not given any consideration to Article 8 ECHR rights. In Luximon, an order was granted, even though presumably the facts to be considered on remittal were the same.

The Question of the Approach in Pending Cases

221.     Finally, what is proposed by my colleague Hogan J. as an approach for cases pending before the courts demonstrates the consequence of the departure from recognised principle. It is suggested that the courts dealing with pending cases should engage in a case-by-case analysis, with a view to determining whether or not a correct balancing process was carried out. This, too, must necessitate a merits-based assessment. But, moreover, one can foresee such a process may well place the courts seized with such a task in a difficult position. They will, simultaneously, be carrying out judicial review, and also, on occasions, having to carry out assessments which should have been performed by first instance decision-makers or reviewers.

222.     I make no comment whatever about the procedures which may have to be adopted, or adapted, for courts to perform this function. Nor do I make any comment in relation to what rights applicants in court would hold for the purposes of such a procedure.

The Choice

223.     I fully recognise that the Court here is faced with an invidious choice. But it must be acknowledged that, whether or not cases are remitted, there will still be administrative difficulties either way. But I do not think such difficulties can be such as to weigh the balance against remittal. As well as placing courts in a difficult situation, the proposed approach, in my view, sets to one side the correct place for such decision-making, that is, by the first instance decision-makers and reviewers performing statutory functions under the 2015 Act. One could hardly envisage that, in the light of what has been held in this judgment, the same flawed procedure as heretofore would continue to be adopted by the Minister. Thus, there will inevitably have to be a readjustment. None of this renders the remedy of certiorari impossible. The term “so far as possible” in s.2(1) must have objective meaning. It cannot simply convey that the remedy may have significant consequences.

224.     I make two other observations. The 2003 Act places a time limit on any actions which might be brought more than one year prior to an alleged contravention. But, not only that, proceedings for judicial review in other cases would be subject to the strict time limits provided for under the Rules of the Superior Courts.

225.     Finally, I acknowledge that the decision of remittal, or non-remittal, will have significant impact on the operation of the immigration process. But I take the view that what is in question here is something more fundamental, that is, the operation of the rule of law. What has been said before stands repetition: Courts must not only look to the present, but to the improbable future. I also ask, can it be said that, under the Constitution, the appellant’s rights have been vindicated so far as “practicable” under Article 40.3.

Remedy under the Convention

226.     Absent an effective remedy under the Constitution, it is necessary to refer specifically to the Convention on the question of remedy, as well as the question of the right. The violation of the appellant’s Article 8 rights cannot be in dispute. The issue is not whether judicial review is an effective remedy generally, under ECHR (Vilvarajah & Ors. v. The United Kingdom, Application No. 13163/87, 30 October 1991). It is, rather, whether the absence of an order is an effective remedy in this case. (Hatton & Ors. v. The United Kingdom, Application No. 36022/97, 8 July 2003).

227.     In Hatton, the Strasbourg court had to consider whether the applicants had a remedy at national level to “enforce the substance of the Convention rights ... in whatever form they may happen to be secured in the domestic legal order”. (See Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, §§ 117 to 127). The scope of the domestic review in Vilvarajah, which concerned immigration, was relatively broad, because the importance domestic law attached to the matter of physical integrity. It was on this anxious scrutiny and rigorous basis that judicial review was held to comply with the requirements of Article 13. But, in this case, the substance of the right involves a consideration in accordance with the procedure provided for in Convention jurisprudence. That is what the 2003 Act provides for a s.31(1).

228.     By contrast, in Smith and Grady v. the United Kingdom, Nos. 33985/96 and 33986/96, §§ 135 to 139, ECHR 1999-VI, the Court concluded that judicial review was not an effective remedy on the grounds that the domestic courts defined policy issues so broadly that it was not possible for the applicants to make their Convention points regarding their rights under Article 8 in the domestic courts. (para. 141). The court observed that judicial review proceedings were capable of establishing that the legal scheme in question was unlawful because the gap between government policy and practice was too wide. (See R. v. Secretary of State for Transport, ex parte Richmond LBC (No. 2) [1995] Environmental Law Reports p.390). The question in this appeal now is whether, in Convention terms, the order proposed by the majority affords the appellant an effective remedy in accordance with Article 13 ECHR?

Article 13 ECHR

229.     Seen from a Convention standpoint, I consider this appeal now not only raises issue under Article 8, but so far as concerns remedy, Article 13, ECHR. This Article provides that:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”. (Emphasis added)

230.     The appellant has sought to obtain an effective remedy before this Court. The threshold for Article 13 is simply that an applicant should have an arguable complaint under the Convention (Boyle & Rice v. The United Kingdom [1988] ECHR 3 ). Here, the violation of the process contained in Article 8 of the Convention is not in dispute.

231.     In De Souza Ribeiro v. France [GC] 22689/07, 13^th December, 2012, the ECtHR observed that the discretion which contracting states were afforded regarding the manner in which they conform to their obligations under Article 13 could not be exercised in a way that deprived applicants of the minimum procedural safeguards against arbitrary expulsion.

232.     In De Souza, the ECtHR held that the applicant had not had access in practice to effective remedies in respect of his complaint under Article 8 of the Convention when he was about to be deported. The situation had not been remedied by the eventual issuance of a residence permit. The ECtHR dismissed the French government’s preliminary objection concerning the applicant’s loss of “victim” status within the meaning of Article 34 of the Convention, and nonetheless found a violation of Article 13, in conjunction with Article 8. It is true that each state engages a margin of discretion when applying Convention case law. But I do not understand the principle to be such as would have the effect of introducing a discretionary element, thereby denying this appellant an effective remedy.

233.     Just as Article 8, Article 13 imposes duties through the portal of the ECHR Act, 2003. There is a duty under Article 8 and under Article 13 of the Convention, having regard to the provisions of the ECHR Act, 2003, which, in my view, requires the State to make available to the appellant, as an individual concerned, the effective possibility of not only challenging the deportation, but also of having relevant issues examined with sufficient procedural safeguards and thoroughness, by an appropriate domestic forum, offering guarantees of independence and impartiality. (Al-Nashif v. Bulgaria [2002] § 133; M & Others v. Bulgaria [2011] §§ 122-133; De Souza).

234.     It is true that national authorities, as the high contracting parties to the ECHR, have the primary duty to guarantee Convention rights and freedoms. But, under the principle of subsidiarity, it is the national court which is effectively a guarantor of the right, but only when domestic remedies have been exhausted.

235.     Under Article 35.1 of the Convention, the only remedies which are required to be exhausted are those that relate to the breach alleged and which are available and sufficient. The existence of such remedies must be sufficiently certain, not only in theory, but also in practise.

236.     In the absence of an effective remedy, granted by a national authority, complaints may be referred to the court in Strasbourg. As long ago as Kudla v. Poland [GC] Application No. 30210/96, the ECtHR pointed out that the question of whether an applicant had a legitimate complaint under an antecedent Article of the Convention, as well as Article 13, should be considered separately from the question of whether the applicant was also provided with an effective remedy, which right, incidentally, arises under Article 47 of the Charter.

237.     In the instant case, the appellant has sought a remedy under the Constitution. As a consequence of the order proposed by the majority, I would respectfully argue he is not to receive an effective remedy. The inescapable fact is that, as a result of a legally flawed decision, he could now be subject to deportation, despite the unanimous conclusion that the legal procedure leading to those decisions under s.49 and s.51 of the Act of 2015 are legally flawed under the Convention and the Constitution.

Rule of Law

238.     The appeal raises the question whether the denial of any remedy can be consistent with the rule of law. The appellant is effectively left in a situation where his legal status is profoundly unclear. I do not believe this accords with legal certainty. An effective remedy involves the provision of redress for a Convention violation. This involves what must be identified as a genuine intervention by a court in a contracting state.

239.     In Gorry v. Minister for Justice [2020] IESC 55, this Court, when faced with a choice between a constitutional and Convention remedy, elected to provide for a remedy under the Constitution, in light of the fact that it was Article 41 of the Constitution which identified a higher level of protection for the family rights in question. I would respectfully suggest the same principle should apply by an order quashing the decision here. But, conversely, if the appellant is not to be granted a remedy under the Constitution, it seems to me, he is entitled to a declaration under the ECHR Act, 2003.

240.     In Keaney v. Ireland, Application No. 72060/17, there is contained in a concurring ECtHR judgment in what, on that occasion, was a systemic delay case, that the result, in favour of the applicant, was not a victory for him, and for that reason not accompanied by just satisfaction, due, in that case, to the manner in which the appellant’s case had been conducted. It was, Judge O’Leary observed, instead, a judgment of principle, identifying a systemic problem of delay which, in relation to some levels of the domestic court system, might have subsequently been remedied. It was also, she said, a judgment which required the respondent state to act in relation to the provision of an effective domestic remedy in cases of delay. But she observed “Not all sound legal principles find the appropriate champion”.

241.     I would apply the same observation here. There is, at the heart of this appeal, a fundamental question of legal principle concerning rights and remedies. I respectfully, therefore, dissent from the judgment of the majority as to the absence of any remedy. In the first instance, I would have granted the appellant an order of certiorari of the Minister’s orders in this case. But, failing that, I would, alternatively, have granted a declaration that, by virtue of the respondent’s breach of his rights under Articles 8 and 13 of the ECHR, the appellant was entitled to a declaration that the respondent had breached her statutory duty under s.3(1() of the 2003 Act. In my view, such a conclusion must follow from the application of the soundest of all legal principles, that is the protection of the rule of law.

Result:     Dismiss