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(s)

AND

MINISTER FOR JUSTICE AND EQUALITY

 

Respondent(s)

AND

IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

Amicus Curiæ

 

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 1^st day of February 2023

Introduction

1.       This appeal presents again familiar issues regarding the inter-action of the State’s immigration system with the right to respect for family life contained in Article 8 of the European Convention of Human Rights and, more specifically, the Minister for Justice’s obligation to perform her functions “in a manner compatible with the State’s obligations under the Convention provisions” in the manner specified by s. 3(1) of the European Convention of Human Rights Act 2003 (“the 2003 Act”).

2.      The background to this appeal is, however, a slightly unusual one. The State operates a special visa system with ten other countries (Argentina, the Commonwealth of Australia, Canada, Chile, the Republic of China (Taiwan), the Hong Kong Special Administrative Region of the People’s Republic of China, the Republic of Korea, Japan and the United States) known as the Working Holiday Authorisation Scheme. Under this Scheme participants who are aged between 18 and 35 years of age have the opportunity to travel to these countries in order to study and work at the same time. The Scheme is, however, time limited so that the holder of such a visa is granted permission for a maximum stay of two years.

3.      The applicant in these proceedings (and respondent to the appeal), Ms. Jaimee Middelkamp is a Canadian citizen. She is married to another Canadian national, Mr. Gregory Paul. No question at all arises in relation to the bona fides of that marriage and it seems perfectly clear that the couple are devoted to each other.

4.      In the summer of 2018 Mr. Paul obtained a student visa which enabled him to commence a four-year course in Dentistry in University College, Cork. Ms. Middelkamp, however, entered the State on a different visa, namely, the visa which had been granted under the Working Holiday Authorisation Scheme. She found work with a solicitors’ firm in the Cork region as a paralegal. The permission which had been granted on 31 August 2018, was expressed to valid for a two-year period, expiring 22 August 2020. The permission is expressly stated to be non-renewable, save for special leave from the Minister for Justice. Indeed, Ms. Middelkamp signed a document in which these conditions were explained to her. One of these conditions stated:

“Extensions to the period of validity of such permission shall not be granted. Participants must leave Ireland on the expiration of the permission, which cannot be extended nor renewed.”

5.      In anticipation of the expiry of her permission the following summer, Ms. Middelkamp made an application to the Minister on 19 December 2019 under s.4(7) of the Immigration Act 2004 (“the 2004 Act”)  for a variation of her permission such that she would have an extended entitlement to remain in Ireland beyond the two year period. As her application made clear, Ms. Middelkamp actively contemplated staying in Ireland for an extended period and qualifying as a solicitor in the process, albeit that this was all subject to the Minister’s consent.

6.      The application was itself a detailed one and was impressively argued. It made the point that the applicant provided important emotional and other support to her husband, thus enabling to focus on his dentistry studies. The couple (and, indeed, their wider families) had, moreover, made many financial sacrifices to enable Mr. Paul to pursue his ambition of qualifying as a dentist. It was also perfectly clear that the applicant was at all times of good character and law abiding. She in particular wished to ensure that she fully complied with the requirements of Irish immigration law and practice. All of these matters are greatly to Ms. Middelkamp’s credit.

7.      By a letter dated 2 January 2020, the Minister for Justice and Equality nonetheless refused the application, stating that “the interest of public policy and the common good in maintaining the integrity of the immigration system outweigh such features of your [case] as might tend to support a decision to vary [your] permission.” In a further letter, dated 30 January 2020, from the Department of Justice, Ms. Middelkamp was told that her Article 8 ECHR rights were not affected by the Minister’s decision, and that the matter would not be revisited.

8.      Ms. Middelkamp then commenced proceedings by way of judicial review in which she sought to quash the Minister’s decision as violating her right to family life under Article 8 ECHR. As it happens, due to the happenstance of the COVID-19 pandemic, a general extension was given to her (and to all other similarly situated applicants under the Scheme) in respect of her visa permission by reason of these exceptional circumstances until September 2021.  As I have already indicated, the case nonetheless raises important issues of principle regarding the operation of Article 8 ECHR and, indeed, for that matter, the inter-action of Article 8 ECHR with the corresponding provisions of Article 41 of the Constitution.

9.      It is perhaps important to state immediately that while the Minister’s decision to refuse to permit Ms. Middelkamp to stay beyond the two year period permitted by her visa did engage Article 8(1) ECHR, a decision of this kind can nearly always be justified by reference to Article 8(2) ECHR. Absent exceptional circumstances no further ministerial assessment is required beyond the facts of the scheme, the fact of the applicant’s entry pursuant to that scheme and the fact that the integrity and coherence of the immigration system requires adherence to its terms by those who avail of such a scheme.

10.  Before considering these questions in a little more detail it is first necessary to explain what occurred in the High Court and how that judgment set the scene for the present appeal.

The judgment in the High Court

11.  This appeal arises from the decision of Barrett J. of 22 July 2021 (Middelkamp v. Minister for Justice [2021] IEHC 521) in which he granted an order of certiorari quashing the Minister’s decision and remitting it for fresh consideration. Barrett J. quashed the Minister’s decision on the basis that he considered that the reasons which had been given by the Minister in respect of the refusal of the visa extension were inadequate and that the decision was flawed insofar as it appeared to deliberately give “no consideration [to] Art.8 ECHR-derived rights” (at [23]). 

12.  In this respect Barrett J concluded that the Minister’s reasons were “so broad as to be meaningless”. He considered that the decision refers to rights but he noted that it failed to state which rights, how they were weighed, and that it failed to provide guidance as to how those rights might have prevailed when weighed as against other considerations. Furthermore, the failure of the Minister to refer to the applicant’s Article 8 ECHR rights, despite the application extensively referring to them, added to the judge’s assessment that the reasons given in respect of the decision were inadequate.

 

13.  The Minister had argued at the hearing in the High Court that it was appropriate and lawful to postpone any consideration of the Article 8 ECHR rights of the applicant until such time as she was being deported from Ireland under s. 3 of the Immigration Act 1999. Barrett J. considered that these submissions established that the Minister deliberately gave no consideration of the Article 8 ECHR rights, in fact excluding such rights from the “’all rights arising’ that were stated in the impugned decision” (at [25]). It should be noted that there was no consideration by the High Court of any constitutional issues arising from the potential application of Article 41 of the Constitution to the ministerial decision under challenge.

14.  On 30 November 2021, Barrett J. heard an application from the Minister seeking leave to appeal the High Court decision to the Court of Appeal. Barrett J. declined to grant the Minister’s application, concluding that a point of law of exceptional public importance, as required by s.5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000, did not arise on the facts of the case: see Middelkamp v. Minister for Justice (No.2) [2021] IEHC 766.  By a determination dated 16 May 2002 we granted the Minister leave to appeal directly to this Court pursuant to Article 34.5.4 of the Constitution: see [2022] IESCDET 82. At a hearing on 16 June 2022, the Irish Human Rights and Equality Commission (“IHREC”) was added to the proceedings as an amicus curiae.

15.   As I now propose to explain, this appeal raises two fundamental issues. The first concerns the interpretation of Article 8 ECHR and the manner in which that provision has been applied in the context of immigration matters. The second concerns aspects of the inter-action of the Constitution and the European Convention of Human Rights (“ECHR”), specifically with regard to Article 41 on the one hand and Article 8 ECHR on the other. It may be convenient to commence with a consideration of this second issue.

The Constitution and the ECHR

16.   This appeal presents yet another example of a practice which seems now to be common place - perhaps especially in the area of immigration law - namely, where a litigant places reliance on a provision of the ECHR (in this case Article 8 ECHR) in proceedings challenging a ministerial decision without referring in any way to the corresponding provisions of the Constitution (in this case, Article 41).  In cases involving the rights of married couples the practice is certainly a puzzling one because the constitutional text - with, for example, its reference to “inalienable and imprescriptible rights” - seems to go somewhat further than the more modestly expressed guarantee in Article 8 ECHR which is simply to “respect” family life. This point was illustrated graphically by the decision of this Court in Gorry v. Minister for Justice and Equality [2020] IESC 55 where it was held that the Minister had been wrong to treat the Article 41/Article 8 ECHR rights of the married couple in that case as being simply synonymous and inter-changeable.

17.  As I had occasion to note in Clare County Council v. McDonagh [2022] IESC 2, [2022]  1 ILRM 353 the same can equally be said of the constitutional guarantees so far the inviolability of the dwelling is concerned, with the reference to “inviolable” in Article 40.5 as compared with the more modest term  “respect” which is utilised in Article 8(1)  ECHR in respect of the home. While, as I observed in McDonagh [2022] 1 ILRM 353 at 371, “a litigant remains free, in principle, to elect as between the ECHR and the Constitution in terms of priority of emphasis and argument” and otherwise to choose the arguments which he or she considers will best advance their case, it must also be recalled that every judge has made a solemn declaration to uphold the Constitution: see Article 34.6.1 of the Constitution. The courts are thus obliged to respect the primacy of the Constitution and the hierarchy of norms which it prescribes. It is accordingly unsatisfactory for the courts to be presented with arguments relying exclusively on ECHR arguments where the Constitution’s provisions are also pertinent to the legal issues raised or advanced in the case. This practice of placing exclusive reliance on the provisions of the ECHR alone when another constitutional provision is also directly on point is thus an undesirable one.

18.   It is important to be clear about this. Both the Constitution and the European Convention of Human Rights seek to create and establish democratic, tolerant and free societies which are firmly based on the rule of law and which fully respect human dignity and fundamental freedoms. Just as the Preamble to the Constitution speaks of its desire to see that “the dignity and freedom of the individual may be assured”, the Preamble to the ECHR also declares that:

“Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend; Being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain [fundamental] rights…”                                 

19.   It is plain that these instruments both seek to achieve the same fundamental objectives, even if they do in somewhat different ways. The Constitution remains, however, the fundamental law of the State and, as I put it in Costello v. Government of Ireland [2022] IESC 48 at [60],  it is “after all, the ultimate repository of our sovereignty and democracy. It expresses in a profound way key aspects of our national identity in legal form.” As, moreover, O’Malley J noted in AC v. Hickey [2019] IESC 38, [2020] 2 IR 38 at 125, the Convention does not seek to operate as a surrogate constitution as such but instead rather seeks to establish minimum guarantees for the functioning of free and democratic societies in the Contracting States.

20.  It is in that particular context that there is, moreover, a fundamental value in ensuring that the performance of this State in securing democracy, promoting the rule of law and protecting fundamental rights is subject to the external scrutiny of the European Court of Human Rights in the sphere of international law, a scrutiny which occasionally may well prove salutary.  In addition, as Clarke C.J. observed in Fox v. Minister for Justice [2021] IESC 61, [2021] 2 ILRM 225 at 257:

  “there may be some merit in the future in Irish judgments using similar language and structure to that adopted by the ECtHR in analysing rights guaranteed by both the Constitution and the ECHR.  The appropriate dialogue between a national court and the ECtHR can only be enhanced if judgments are expressed in terms which minimise the risk of misinterpretation by supranational courts where there may be a real possibility that such courts will be required to consider the national judgments in question.”

21.   All of this means that in our jurisprudence the Constitution and the ECHR should inter-act in a positive fashion. There is no question of the two instruments being in some sense in competition with each other. At the same time, as I have just observed, this Court is generally obliged to respect the hierarchy of norms which obtains within our legal system.  The Oireachtas has not - and, absent a constitutional referendum, could not have - accorded the ECHR the same status as the Constitution within our legal system.

22.   The courts must accordingly ensure that, as this Court observed in Fox (and, indeed, many other cases), the Constitution remains the fundamental law and the ultimate source of human rights protection. This in turn means that, as was pointed out in McDonagh, it is undesirable if the courts are asked to adjudicate upon a particular ECHR issue as if the relevant corresponding provisions of the Constitution simply did not exist. It is not, I think, asking too much of legal professionals in particular to be fully aware of this.

23.  As I have already observed, this appeal presents another example of this practice of treating the individual articles of the ECHR as if they were a stand-alone quasi-constitutional provisions. It was for this reason that this Court raised this very question in its Determination granting leave. In the wake of that Determination the applicant has now pressed this Court for leave to amend the scope of the appeal in order to raise the constitutional arguments based on Article 41.

24.  Not without hesitation I have concluded that in the particular circumstances of this case it would not now be inappropriate to grant this leave to Ms. Middelkamp to raise the constitutional issue and to amend her pleadings accordingly. I reach this conclusion principally because the present proceedings involve a challenge to the validity of an administrative decision taken by the Minister in response to the applicant’s submissions which themselves were based exclusively on Article 8 ECHR. (There was, as it happens, a passing reference in the submissions to the Minister made on behalf of Ms. Middelkamp to her rights under Article 40 - as distinct from Article 41 - of the Constitution, but nothing turns on this for present purposes). This is the manner in which the applicant elected to present her case before the Minister and it is as this stage - well after that decision had been made - simply too late to include a reference to Article 41 of the Constitution.

25.   The present case is thus different from McDonagh  where the High Court was asked to exercise its jurisdiction to grant an interlocutory injunction at first instance and where Article 8 ECHR was raised by way of defence, which decision was affirmed by the Court of Appeal. On appeal this Court insisted on raising the Article 40.5 point given that the case concerned the exercise of a jurisdiction vested in the courts and, unlike the present case, it did not involve a challenge to a ministerial decision where the issue had not previously been raised before the actual decision-maker. There was, moreover, the practical consideration that previous leading authorities dealing with the protection of the dwelling and the granting of planning injunctions under s. 160 of the Planning and Development Act 2000 which had been discussed in that case had all themselves been based on Article 40.5 rather than Article 8 ECHR. As I pointed out in my judgment in McDonagh a coherent treatment of this case-law also meant that this Court was of necessity obliged to confront and discuss the Article 40.5 issue: see [2022] 2 ILRM 353 at 371.  The proceedings were, in any event, purely interlocutory in nature and, unlike the present case, did not involve a challenge to a final order. 

26.   I do not pretend that all of this is satisfactory. It is, perhaps, sufficient to say for future reference that legal professionals should, where possible, also ensure that the constitutional issues are raised appropriately in conjunction with any corresponding ECHR issues as arise within the confines of the European Convention of Human Rights Act 2003.  I also recognise that in some instances of this kind an issue may possibly arise in future cases as to the extent to which non-citizens can rely on the corresponding constitutional provisions. But so far as the present case is concerned, I think that, for the reasons just stated, the Court has little option but to address the appeal by reference exclusively to the provisions of Article 8 ECHR.

The Minister’s decision and Article 8(1) ECHR

27.   The first question which arises is whether Article 8(1) ECHR is “engaged” in the present case.  This is perhaps another way of asking whether the Minister’s decision interfered with Ms. Middelkamp’s right to family life given the extent of the latter’s obligation to comply with this provision by virtue of s. 3(1) of the 2003 Act. For my part, I find it hard to see how there was not such an interference. After all the effect of the decision refusing an extension of the visa permission was that Ms. Middelkamp would have been obliged to leave the State and return to Canada, thus leaving her husband to finish his dentistry studies at UCC for another two years. She had, after all, spent two years in the State with her husband having travelled here from Canada. Different considerations might well apply so far as the application of Article 8 is concerned if a person with no connections with this State had applied for the first time for permission to enter the State from abroad.

28.   One does not, I think, have to be a dewy-eyed romantic to realise that this decision amounted to a very significant interference with the private life of this married couple. The whole essence of marriage is a coming together for mutual love and support. To ask this couple - who clearly love and are devoted to each other - to live apart for two years is to ask a great deal.

29.   In R. (Razgar) v. Home Secretary [2004] UKHL 27, [2004] 2 AC 368 Lord Bingham accepted that it was possible for deportation orders to engage the applicant’s rights to respect for private and family life under Article 8(1) of the ECHR. In doing so, he identified five questions likely to have to be answered by an adjudicator where Article 8 ECHR is proposed to be relied upon in order to contest a proposed decision to deport:

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

2.                                 If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?

3.                                 If so, is such interference in accordance with law?

4.                                 If so, is such interference 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?

5.                                 If so, is such interference proportionate to the legitimate public end sought to be achieved?”

25.  In Razgar, the House of Lords were concerned with an asylum seeker from Iraq, who the Secretary of State for the Home Department proposed to remove to Germany. Mr. Razgar previously had sought asylum in that country which now claimed responsibility for him under the provisions of the Dublin Convention. Mr. Razgar resisted his planned removal to Germany on the basis that his Article 8 ECHR rights would be infringed. He contended that he would return to inadequate facilities for his mental wellbeing which, alongside the return to racist treatment he had previously faced in Germany, would adversely affect his physical and moral integrity. In response, the Secretary of State ultimately concluded that the Article 8 claim was ‘manifestly unfounded.’

26.  Lord Bingham rejected the British Government’s argument that Mr. Razgar’s claim could be so described. Although he accepted that not every act/measure which adversely affects moral or physical integrity will interfere with the rights guaranteed by Article 8 ECHR, he was satisfied that on the facts of the case, the first two questions were to be answered in the affirmative. He concluded, in other words, that the decision to remove Mr. Razgar to Germany did in fact engage Article 8(1) ECHR in that the interference had exceeded the minimum level of gravity sufficient to attract the Convention’s protections: there was, after all, the real possibility that Mr. Razgar might take his own life if removed to Germany.

27.   It is still worth noting that Lord Bingham was exacting regarding the extent to which an administrative decision might engage Article 8(1) ECHR’s guarantee of private life: he seemed to think that a removal decision might come within its parameters “if the facts relied on by the applicant are particularly strong”: [2004] 2 AC 368 at 383. One should also take account that Razgar concerned the right to private life - and not the right to family life which is (potentially) engaged in the present case. In the nature of things immigration decisions having adverse consequences for the individual are more likely to have a severe impact on the right to family life where there is a couple or children involved than the individual’s right to a private life as such. Putting it perhaps more prosaically it is worse to lose contact with one’s spouse or partner and children then it is lose contact with your friends.

28.   Lord Bingham went on to say that in those immigration cases where the Article 8(1) ECHR right is engaged, the third question (whether the interference is in accordance with law) and the fourth question (whether such an interference is necessary in a democratic society) would normally be answered in the affirmative. The real question then was the fifth question, namely, whether the decision was proportionate. In the instant case Lord Bingham concluded that as the Home Secretary had given no real consideration to this fifth question, he held that the ministerial decision to certify the claim as manifestly unfounded was unlawful. The Home Secretary would thus have to re-consider the claim.

29.   It is true that the comments of Lord Bingham in Razgar have to date achieved an almost canonical status within the field of the immigration practice in this State. They are cited regularly in the Minister’s own decisions concerning immigration and asylum matters and, prior to the very recent decision of this Court in MK (Albania) v. Minister for Justice [2022] IESC 48, they had received judicial endorsement at a high level in this State, most particularly perhaps the decision of the Court of Appeal in CI v. Minister for Justice [2015] IECA 192, [2015] 3 IR 385. This was a case where the Court of Appeal held that the private life of failed asylum seekers was not engaged by Article 8(1) ECHR by their proposed deportation to their country of origin. In his judgment in MK (Albania) MacMenamin J explained why he did not propose to follow the CI analysis of this particular issue. All members of the Court (including myself) were agreed on this point and I consider that the law in this jurisdiction has accordingly moved on from both Razgar and CI so far as the interpretation of the scope of Article 8(1) ECHR in immigration matters is concerned.

30.   A great deal of judicial ink has been already been spilled - both in this jurisdiction and  elsewhere - in presenting what amounts almost to a biblical exegesis of the text of Article 8 ECHR.  A whole complex web of case-law has been created to deal with the different types of typical Article 8 ECHR cases - including the separate and distinct rules for failed asylum seekers, persons enjoying a precarious immigration status, settled migrants and so forth. It is sometimes difficult to avoid the impression that the creation of these soi-disant legal taxonomies has served to complicate what in truth ought to be relatively simple and straightforward inquiry.

31.   If one approaches this matter from first principles and if one also adheres closely to the text of Article 8 ECHR, then it is clear that the Minister’s decision in the present case quite obviously did engage Article 8(1) ECHR, precisely because it did have serious implications for the married life of this couple and it did interfere with those rights.  One can, of course, read Lord Bingham in Razgar as stating simply that any interference with ECHR rights must attain a minimum level of severity before Article 8 ECHR is properly engaged and that his analysis can accordingly be seen in that light. At the same time the Court of Appeal in CI interpreted the decision in Razgar as meaning that any interference with the right must have particularly grave consequences before the Article 8(1) ECHR right is engaged. As Finlay Geoghegan J put it in her judgment in respect of the claimants’ right to a private life ([2015] 3 IR 185 at 409), “there was no evidence of any grave impact on the physical or moral integrity of the mother or children by reason of the cessation of the relevant activities and social relationships in Ireland.” Finlay Geoghegan J then proceeded to hold that the Minister’s decision that “the interference in the private life by deporting all applicants will not have consequences of such gravity as potentially to engage the operation of Article 8 was reasonable.”

32.  In any event, it is perfectly clear that the European Court of Human Rights has never itself adopted the Razgar analysis, at least in the manner interpreted by the Court of Appeal in CI so far as the application of the minimum gravity test is concerned. While it is clear from the jurisprudence of the European Court of Human Rights that the Convention is engaged only where the interference with these rights attains a sufficient seriousness (see, e.g., Costello-Roberts v. United Kingdom (1993) 19 EHRR 112), my difficulty with Razgar (or, possibly more accurately, at least as that decision was interpreted in CI) is that it seems to pitch the minimum gravity test at too elevated a level.

33.  As counsel for the Minister, Mr. Conlon Smyth SC accepted during the course of oral argument, such an a priori restriction on the scope of Article 8(1) ECHR is not to be found in any of the leading recent decisions of that Court in this area such as Jeunesse v. Netherlands [2014] ECHR 1036, (2015) 60 EHRR 17 or MA v. Denmark [2021 ECHR   628.  Indeed, as that Court pointed out in MA (at [142]) :

“The Court has on numerous occasions recognised that immigration control is a legitimate aim for the State to interfere with the right to respect for family life within the meaning of Article 8 of the Convention.” (emphasis supplied)

34.   In MA itself the issue was whether a Danish law imposing a three year waiting period in respect of spouses seeking to join the other spouse for family reunification purposes was compatible with Article 8 ECHR. The European Court of Human Rights held for various reasons that there had not been a fair balance struck by that law between various competing interests, so that there had been a breach of Article 8 ECHR. The real point, however, of that case is that it is necessarily implicit in that judgment that a State measure which obliges couples to remain apart necessarily interferes with that Article 8(1) ECHR right and that the entire question will thus depend on whether or not the interference with the right is deemed to be proportionate for Article 8(2) ECHR purposes.

35.  Given, therefore, that I might term the Razgar/CI application of minimum gravity analysis is not supported by either a reading of the actual text of Article 8(1) ECHR or, for that matter, the jurisprudence of the European Court of Human Rights, I am not disposed to follow it. In a case such as this the Razgar/CI analysis would oblige this Court to adopt an artificially restrictive interpretation of Article 8(1) ECHR by confining the application of the Convention to those cases where either a particularly grave interference took place or where that interference had in itself very serious consequences for the individual. In any event, CI (and, for that matter, any reliance on Razgar in this jurisdiction) has since been overtaken by the decision of this Court in MK (Albania).

36.   In the present case the effect of the Minister’s decision was - at least potentially - to oblige this married couple to live apart for two years while he finished his dentistry studies at UCC.  Just as with MK (Albania) the implications of such a decision go well beyond any de minimis test, so that there clearly was an interference with their right to respect for a family life as protected by Article 8(1) ECHR. In MK (Albania) this Court held that the proposed deportation of a young man who had spent three years awaiting the outcome of his (ultimately unsuccessful) asylum application clearly engaged his right to a private life for the purposes of Article 8(1) ECHR. The same is necessarily true a fortiori in the present case given that Ms. Middelkamp would have to leave her husband behind in this State for a two year period while he completed his dentistry studies.

37.  As I have already observed, such a conclusion is, in any event, indeed implicit in the European Court’s judgment in MA. As, moreover, the Constitution itself states, marriage is a special institution which the State pledges “to guard with special care”: see Article 41.3.1. The situation of Mr. Paul and Ms. Middelkamp qua married couple was, accordingly, very different to that of the relationship, for example, between parents and adult children who, generally speaking, cannot point to the existence of a family life for the purposes of Article 8(1) ECHR “unless they can demonstrate additional elements of dependence other than normal emotional ties”: see Chen v. Minister for Justice and Equality [2021] IECA 99 at [61] of the joint judgment of Power and Murray JJ.

38.   For good measure I would also draw attention to the decision of this Court in Luximon v. Minister for Justice [2018] IEHC 24, [2018] 2 IR 542. This was a case where the applicants had been lawfully admitted to the State on a long term education scheme. This Court held that the Minister should have had proper regard to the applicants’ Article 8 ECHR rights, admittedly in the context of what amounted to a decision to effect an expulsion order. As MacMenamin J. observed ([2018] 2 IR 542 at 574):

“The respondent families legally entered this State. Such rights as may have arisen were acquired during lawful residence in the State. Their long-term residence, although conditional, required that consideration should have been given to their Article 8 rights in the s. 4(7) consideration for variation or renewal of their entitlements. The applicants are not simply ‘visitors’ or short-term entrants to the State, or persons had no entitlement to be here at all.”

 

Was the interference necessary in a democratic society for the purposes of Article 8(2) ECHR?

39.   This brings us directly the second question: if the Minister’s decision “interfered” with Ms. Middelkamp’s rights to a family life under Article 8(1) ECHR, was such an interference was necessary in a democratic society such as to justify this for the purposes of Article 8(2) ECHR? Here the Minister’s case is on far surer ground since it ultimately rests on the coherence and integrity of our immigration system. The functioning of the entire immigration system rests on the operation of clear and predictable rules. That is especially true so far as the operation of the Working Holiday Authorisation Scheme is concerned.

40.   As I have already noted, that scheme operates in conjunction with ten other non-EU countries and it is time limited to two years. There is a strong, consistent and weighty public interest in ensuring that this feature of the scheme is adhered to, as otherwise one of its basic objectives would be undermined. It is only fair to say that Ms. Middelkamp was fully aware of this restriction when she obtained her visa under the scheme. As I have noted, she signed a document accepting these conditions and, absent exceptional circumstances, she could not really complain if the Minister held her to her word to stay only for this finite period of time. As  Mr. Conlon Smyth SC observed, the Minister would, of course, have been prepared to consider such an extension had exceptional circumstances  - such as serious illness - presented themselves. (Indeed, as it happens, the advent of the Covid-19 pandemic was one such circumstances since it resulted, faute de mieux, in an extension of Ms. Middelkamp’s visa by a further year up to August 2021.)

41.   The key point, however, is that, absent exceptional circumstances, the Minister was entitled to hold steadfast in her application of the rules of the scheme. To repeat, there is a consistent and weighty public interest in seeing that the rules of the immigration system are adhered to and are not circumvented in some purely ad hoc and disorderly fashion. If it were otherwise, the State’s capacity to operate time-limited visa schemes of this kind could be wholly compromised.

42.   To that extent, therefore, 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 by those who avail of such a scheme to its terms, is required.  One might also add in this context that the interference with her family life was capable of being mitigated by a range of factors. Once Ms. Middelkamp returned to Canada she was of course, for example, entirely free to return to Ireland qua non-working tourist for some ninety days without the need for any visa. While she could not work in Ireland during this period, she could nonetheless have arranged to stay with and visit her husband in Ireland. As the Minister observed in an affidavit filed on her behalf, there were also a range of other potential options available to the applicant, including potential student visas (had she enrolled in an educational course) or she could else have applied for a one year renewable permission which is available to those who can demonstrate financial self sufficiency and who do not intend to take up employment in the State.

43.   For all of those reasons I consider that while the Minister was in error in concluding that Ms. Middelkamp’s right to respect for her private life under Article 8(1) ECHR was not engaged, she was nonetheless fully entitled to conclude that such an interference was necessary in a democratic society for the purposes of Article 8(2) ECHR in the interests of the operation of a stable and coherent immigration system so far as the present case is concerned. While the Minister’s correspondence may not have exactly followed the analysis contained in this judgment or used this precise terminology contained in Article 8(2) ECHR, the gist of the decision was nonetheless clear. The Minister in effect said to Ms. Middelkamp that the strong public interest in maintaining and adhering to the terms of the Scheme with its generous but time-limited permission outweighed her personal (if very understandable) preference to stay with her husband in Ireland. One could also say that Ms. Middelkamp had not advanced any compelling or special reasons (beyond her commendable desire to provide support for her husband) as to why an exception should have been made in her case.

44.  In MK Albania  a majority of this Court took a similar view in circumstances where the Minister had (erroneously) stated that Article 8(1) ECHR was not engaged by reason of the proposed deportation of the applicant in that case, but where the Court ultimately concluded that the Minister’s decision was justified by reference to Article 8(2) ECHR. I consider that this reasoning can be applied, mutatis mutandis, to the circumstances of the present case.

The reasons given by the Minister

45.   This brings me to the issue of reasons.  As this Hardiman J. pointed out in FP v. Minister for Justice and Equality [2002] 1 IR 164 many of the reasons given in support of immigration decisions are, in the nature of things, likely to utilise many of the same stock formulae. That in itself cannot be regarded as a criticism, since as O’Donnell J. observed YY v. Minister for Justice and Equality [2017] IESC 61, all that is necessary in giving reasons in a discretionary decision is giving reasons such that the party and a reviewing court can understand the reasoning process.

46.  The Minister submits that it is clear what the reasons are: public policy and common good in maintaining the integrity of the immigration system. It follows - or so the argument runs - that the reasons given are not inadequate. Ms. Middelkamp says in response that “public policy and common good” are not reasons, but rather conclusions. The applicant further submits that absent express reasons, the only conclusion that can properly be drawn is that her fundamental rights have not been considered. As we have seen it was the latter line of argument which prevailed before Barrett J. in the High Court.

47.   I find myself taking a different view. The phrase “the interests of public policy and the common good in maintaining the integrity of the immigration system” - the key phrase contained in the Minister’s refusal letter of 2 January 2020 - may be a pithy one, but in its context it conveys with sufficient clarity the concerns of the Minister. The whole point of the Working Holiday Scheme was that its operation was finite and time-limited. Absent exceptional circumstances the Minister did not feel that she could make exceptions for individual cases, as to do otherwise would compromise the integrity of the scheme. This was a perfectly reasonable point of view which reflects the clear public policy which I have already described.

48.   It is true, of course, that the Minister fell unto error in considering that Ms. Middelkamp’s Article 8(1) ECHR rights were not engaged by this decision. Yet the essence of the decision was (again implicitly) that any such rights could not in themselves prevail against these public policy objectives, again absent special or exceptional circumstances. It is implicit in all of this that the Minister considered that the interference with these rights was necessary in a democratic society for the purposes of Article 8(2) ECHR.  One may allow that these considerations could well have been set out in the Minister’s correspondence with greater pellucidity, yet that in itself does not mean that the reasons actually given were insufficient.

49.  In that respect the present case is different from Razgar.  It is true that in that case the Minister did not in terms consider that Article 8(1) ECHR was engaged, but the House of Lords nonetheless found that the decision was unlawful.  This, however, was not so much a reasons case, but rather a case where on the particular facts the  majority of the House of Lords held that the Minister could not properly have concluded that the claim should have been dismissed in limine. By contrast the Minister has here concluded - if only by implication - that the applicant’s right to respect for a family life (important as it was)  does not outweigh the State’s very weighty interest in the orderly application of the immigration system. Having regard to all the factors I have mentioned, that decision could not be regarded as unreasonable or otherwise unlawful in the context of the application of Article 8(2) ECHR.

50.   For all of these reasons I consider that the Minister’s appeal should be allowed.

The letters written by the High Court judge which are annexed to the judgment

51.    In addition to the main appeal, the Minister also sought to appeal on the matter of the letter attached by the judge to the High Court judgment.  The letter was addressed to Ms. Middelkamp and in it Barrett J. sought to provide a brief explanation of his judgment in non-technical terms. He explained that he took this step because he was:

“always concerned that because applicants in visa application cases are foreign nationals, they should, if possible, be placed by me in a position where they can understand the overall direction of a judgment that has a sometimes great impact on them. I therefore briefly summarise my judgment below. This summary, though a part of my judgment, is not a substitute for the detailed text above. It seeks merely to help you understand what I have decided. The Minister requires no such assistance. So this section of my judgment is addressed to you, the applicant, though copied to all. Your lawyers will explain my judgment more fully to you.”

52.   The Minister contended that the letters are unnecessary and may create difficulties should their content differ from the ratio of the actual judgment. Ms. Middelkamp responded by saying that even if the letters are unnecessary, they are not inappropriate or invalid. She contended that the letter assisted the intelligibility of the judgment and that the court was entitled to take this step by virtue of its inherent jurisdiction.

53.   The practice of writing letters of this kind seems to have its origin in judgments of the English High Court in custody disputes or other cases involving adolescents: see, e.g.,  Re A (Letter to a Young Person) [2017] EWFC 48. It is important to stress that the letters in question are made public and are attached to the judgment itself: entirely different considerations would obtain if judges were to take it upon themselves to a write a private letter to one of the litigants.

54.   A Court speaks through its judgments and orders. To my mind a letter of this kind is essentially no more than an annex to the judgment. Whether a letter of this kind is written is really a matter of personal judicial judgment-writing style upon which opinions may legitimately differ. Some may consider that this practice is a praiseworthy and enlightened endeavour to assist private litigants to understand what might otherwise be a complex process of legal reasoning obscured in dense and unilluminating legal verbiage. Others may think it an unorthodox departure from established judicial practice, especially so if there were to be a perception that by writing a letter to one side the judge unwittingly conveyed a sense of favouritism. Yet others again may doubt the utility of this practice, especially where (as here) the parties are legally represented and, moreover, the applicant is herself legally trained.

55.   Beyond underscoring possible concerns regarding perceptions of judicial impartiality, I do not think it appropriate to offer a view on this issue, one way or another. To repeat: this is quintessentially a matter of personal style for a trial judge in terms of the way his or her judgment is structured and formulated. The letter at issue here was formulated in unobjectionable terms and the question of whether such a letter should be written was entirely a matter for the trial judge. Insofar as this issue was a ground of appeal, I would personally reject it.

Conclusions

56.   Summing up, therefore, I am of the view that the appeal should be allowed because:

A. The Minister’s decision did engage Ms. Middelkamp’s right to family life under Article 8(1) ECHR because the potential effect of that decision in practical terms was to oblige her to separate from her husband for a period of two years.

B.  This interference was, however, justified as being necessary in a democratic society for the purposes of Article 8(2) ECHR. Ms. Middelkamp had been granted a special two year visa under the Working Holiday Authorisation Scheme and there was a strong public interest in ensuring that the terms of that Scheme - the terms of which she had expressly agreed to in obtaining her visa - were adhered to. If it were otherwise, the State’s capacity to operate time-limited visa schemes of this kind could be wholly compromised.

C. The Minister’s refusal letter of 2 January 2020 adequately conveyed the basis of her concerns, namely, the weighty public interest in ensuring the integrity of the immigration system and its rules, including adherence to the terms of a time limited holiday working visa. Accordingly, even though the Minister fell into error in considering that Ms. Middelkamp’s Article 8(1) ECHR rights were not engaged by this decision, the essence of the decision was (again implicitly) was that any such rights could not in themselves prevail against these public policy objectives, again absent special or exceptional circumstances. It is implicit in all of this that the Minister considered that the interference with these rights was necessary in a democratic society for the purposes of Article 8(2) ECHR. This was a conclusion which the Minister was fully entitled to make in the light of the extent of the ambit of the Article 8 ECHR obligations imposed on the Minister by s. 3(1) of the European Convention of Human Rights Act 2003.