Supreme Court of Ireland Decisions

 

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AN CHÚIRT UACHTARACH

THE SUPREME COURT

S:AP:IE:2021:000149

[2023] IESC 2

 

O’Donnell C.J.

Dunne J

Charleton J

Hogan J

Murray J.

 

 

Between/

JAIMEE MIDDELKAMP

Appellant

AND

 

MINISTER FOR JUSTICE AND EQUALITY

 

Respondent

AND

 

IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

Amicus Curiæ

 

 

Judgment of Ms. Justice Elizabeth Dunne delivered on the 1^st day of February 2023

1.                  I have had the opportunity of reading in draft the judgments of Mr. Justice Hogan and Mr. Justice Charleton. Both would allow the appeal of the Minister in these proceedings from the decision of the High Court but they have come to the same conclusion having taken a slightly different approach. I wish to add a few observations of my own.

2.                  As can be seen from the judgment of Mr. Justice Hogan, this case concerns a Canadian citizen who came to Ireland on a two year visa to join her husband, Mr. Paul, who was also here on a visa to allow him to study dentistry. His visa was for a longer period to allow him to pursue his course of study. The visa obtained by Ms. Middelkamp was a special visa known as the Working Holiday Authorisation Scheme. It was the subject of negotiation among a number of participating countries. Before it expired, Ms. Middelkamp sought to vary it pursuant to s. 4(7) of the Immigration Act 2004. I use the word “vary” although strictly speaking it is perhaps not the correct word to use in this context. This was, as mentioned, a special form of visa, the product of negotiation with other countries and was expressly time-limited. As such, it is difficult to see how it could be varied. Leaving that point aside, I want to consider a feature of the case made by Ms. Middelkamp.

3.                  In large part, this case was pursued on the basis that the refusal of the Minister to allow Ms. Middelkamp to remain in this country and to continue to work after the expiry of her visa would be a breach of her rights to family life under Article 8 of the European Convention on Human Rights (ECHR). The difference between the judgments of my colleagues in this case centres primarily on the question of whether the family rights of Ms. Middelkamp under Art. 8 were engaged in the context of this case. It must be borne in mind that the Canadian couple in this case married before they came here. They lived here together following their arrival and Ms. Middelkamp obtained employment here and supported her husband in his studies. Undoubtedly, they enjoyed a family life together during their presence here which was lawful for the duration of their respective visas (and never became unlawful having regard to the circumstances of this case). Inevitably, having regard to the differences in their respective visas, that could not continue. For the reasons set out by Mr. Justice Hogan, I am satisfied that the rights of this married couple were engaged under Article 8 of the ECHR. Mr. Justice Charleton came to a different view on the question as to whether Article 8 rights were engaged. He concluded that they were not so engaged. I cannot agree with his view on that question. I sympathise very much with the views of Mr. Justice Charleton as to the need for a threshold test before rights under the ECHR can be said to be engaged but in this case, I agree with Mr. Justice Hogan that rights under Art. 8(1) of the ECHR were, in fact, engaged.

4.                  Having said that rights were engaged, it is then necessary to determine whether the interference with those rights was necessary in a democratic society having regard to Art. 8(2) of the ECHR. In that respect, there is little difference between the views articulated in the judgments of Mr. Justice Charleton and Mr. Justice Hogan. Both have emphasised the importance of states’ entitlement to regulate the entry of non-nationals to their territory. It is only in exceptional circumstances that an interference with family rights will displace a state’s entitlement to operate an immigration system and policy because as Mr. Justice Hogan put it at para. 42 of his judgment:

“…the Minister’s decision was fully justifiable by reference to Article 8(2) ECHR, since maintaining the integrity and coherence of the immigration system is such an important consideration that, absent exceptional circumstances, a decision of this kind can nearly always be justified by reference to Article 8(2) ECHR and will be regarded as proportionate. As our recent decision in MK (Albania) may also be said to illustrate, in the absence of such exceptional circumstances no assessment beyond the fact of the scheme, the fact of the applicant’s entry pursuant to it, and the fact that the integrity and coherence of the immigration system requires adherence to it by those who avail of such a scheme to its terms, is required.”

5.                  In my view, the approach of the Minister in this case was in accordance with the requirements of Art. 8 ECHR.  While I understand the cri de cœur of Mr. Justice Charleton as to the need, in  the administration of the law by public servants, for the law to remain accessible and readily capable of being applied to the statutory framework within which it is operated, (see para. 3 of his judgment) on this occasion, I find myself coming to a different conclusion from him on the question as to whether family rights under Art. 8 were engaged in the circumstances of this case. I therefore agree with the judgment of Mr. Justice Hogan and the order proposed by him.