High Court quashes deportation order as disproportionate and unreasonable, striking at applicants' Article 41 family rights.

Neutral Citation Number: [2011] IEHC 92

THE HIGH COURT

2010 1100 JR

BETWEEN/

P. S. AND B. E.

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

JUDGMENT of Mr. Justice Hogan delivered on the 23rd March, 2011

1. The first applicant, Mr. S., is an Irish citizen who is now aged 49 years and who lives in a town in the midlands. He has lived in

Ireland all his life. He is a middle aged man who suffers from an intellectual disability and from a bi-polar disorder. He also suffers from

diabetes, hypothyrodism and elevated cholesterol levels and he requires on-going medical supervision. While he has lived freely and

independently in the community, he has been dependent on the daily support of a religious order to enable this to be done. He is

assessed twice a month by an educational psychologist.

2. Such is the nature of his disabilities that concern has been expressed as to whether he had the requisite capacity to marry and,

indeed, to understand the nature of these present proceedings. The requisite psychiatric evidence which has been commissioned

following the commencement of these proceedings now clearly establishes that he has this capacity, but is nonetheless no doubt but

that the first applicant is a naïve and vulnerable person.

3. The second applicant, Ms. E., is a Nigerian citizen who is now aged 24 years. She arrived in Ireland in August, 2007 and applied for

asylum. This application was refused and the Minister subsequently notified her by letter dated 28th July, 2009, that it was proposed

to deport her. She applied for subsidiary protection, but this was refused by decision of 30th November, 2009. The fact that

deportation order had been made by the Minister was then communicated to the second applicant in December, 2009.

4. In the meantime the two applicants had first met in May, 2009. They began a friendship and a romantic relationship followed. They

were married on 20th November, 2009.

5. In the wake of the marriage, the couple applied to the Minister for permission for the second applicant to reside in the State based

on her marriage to an Irish citizen. Correspondence then followed whereby the applicants were urged first to apply to have the

deportation order revoked. On 21st January, 2010, Ms. E. was arrested pursuant to s. 5 of the Immigration Act 1999 (“the 1999 Act”)

and she was informed that her application to revoke the deportation order had been refused.

6. There then followed a series of applications to this Court. The couple’s original judicial review application (2010 No. 76 JR) was

dismissed by Hanna J. on 12th March, 2010, but he continued a stay on the deportation order until 16th April, 2010. It is important to

stress that Hanna J. never adjudicated on the merits of the application, as he found that they applicants had delayed unduly in

making the application to quash the order. He also found that the applicants had failed to bring the fact of the marriage to the

Minister in a timely fashion and had thus “drip fed” key items of information. It would appear that the Court was disposed to refuse

the relief sought by reason of lack of candour on the part of the applicants.

7. In the meantime on 15th February, 2010, Cooke J. granted leave to Ms. E. to seek a judicial review of the Minister’s refusal to

grant her subsidiary protection. On 15th April, 2010, Cooke J. granted an interlocutory injunction restraining Ms. E’s deportation

pending the outcome of that particular challenge and it would appear that at some point shortly thereafter Ms. E. was released from

custody. The substantive hearing took place on the 15th June, 2010, and on 25th June, 2010, Cooke J. delivered a reserved judgment

in which he refused the relief sought: see E. v. Minister for Justice, Equality and Law Reform [2010] IEHC 249.

8. At the hearing before Hanna J. issues had been raised regarding the first applicant’s capacity to marry and, as has already been

indicated, two psychiatric reports were commissioned on this topic. In the wake of these reports, the Mr. S. applied to have Ms. E.’s

deportation order revoked pursuant to s. 3(11) of the 1999 Act. This application was refused by decision of 20th April, 2010, but this

was not communicated to the applicants until 29th July, 2010. The applicants then immediately applied for and obtained leave to

quash this decision from Peart J. on 3rd August, 2010, and this is the issue which is now before me.

9. The applicants accordingly challenge the Minister’s decision to refuse to revoke the deportation order. Before proceeding to

examine this question, it is necessary first to consider an application which was made to me at the hearing for an order under s. 27 of

the Civil Law (Miscellaneous Provisions) Act 2008 (“the 2008 Act”) preventing the publication or broadcasting of any material which

would be likely to identify the applicant as a person having the condition in question.

Section 27 of the 2008 Act

10. Section 27(1) of the 2008 Act provides that:-

“(1) Where in any civil proceedings (including such proceedings on appeal) a relevant person has a medical condition, an

application may be made to the court in which the proceedings have been brought by any party to the proceedings for an

order under this section prohibiting the publication or broadcast of any matter relating to the proceedings which would, or

would be likely to, identify the relevant person as a person having that condition.”

11. Section 27(2) states that an application for an order under this section may be made at any stage of the proceedings. However,

s. 27(3) provides:-

“(3) The court shall grant an order under this section only if it is satisfied that—

(a) the relevant person concerned has a medical condition,

(b) his or her identification as a person with that condition would be likely to cause undue stress to him or her, and

(c) the order would not be prejudicial to the interests of justice.”

12. The phrase “relevant person” is defined by s. 27(11) as meaning:-

“(a) a party to the proceedings, or

(b) a person called or proposed to be called to give evidence in the proceedings.”

13. Mr. S. clearly has a medical condition within the meaning of s. 27(3)(a) and he is, of course, a “relevant person” within the

meaning of s. 27(11) given that he is a party to the proceedings.

14. It is plain that the making of the order would not be prejudicial to the interests of justice (s. 27(3)(c)) and, indeed, counsel for

the Minister, Mr. Barron S.C., very fairly raised no objection to this application.. It is likewise clear that the identification of Mr. S.

would be likely to cause him considerable stress (s. 27(3)(b)). Mr. S. deserves to be - and needs to be – protected from any form of

unwelcome attention in general and from the curiosity of the prurient in particular. He is precisely the kind of litigant that the

Oireachtas sought to protect via the enactment of s. 27 of the 2008 Act.

15. It was for these reasons that I made the order under s. 27 of the 2008 Act during the course of the hearing preventing the

publication or broadcasting of anything which might tend to identify the first applicant.

The Personal Circumstances of the Applicants

16. At this point it seems appropriate to say something further about the applicants’ personal circumstances. So far as can be judged,

there seems no reason to doubt the mutual affection which the couple profess to feel for each other or that their marriage has

brought mutual happiness. In his medical report concerning the mental capacity of Mr. S., Professor Lucey, the Medical Director of St.

Patrick’s University Hospital, reported that Mr. S. had described thus his relationship with Ms. E.:-

“She cares for me. She is interested in the way I dress and the way I look. She cares about my personal hygiene. She

cares for me and she tidies up my flat. She has really brought me on in lots of ways. Also, I am a diabetic and she really

helps me with that. She asks me to check my readings. She asks me what my readings are every day.”

17. It is equally plain from the affidavit evidence that Mr. S. was enormously distressed when Ms. E. was imprisoned for a number of

weeks awaiting deportation prior to the order of Cooke J. granting an injunction restraining the deportation. The Minister has not

sought to suggest that the parties are not validly married and or that they are not living together as man and wife.

18. Next, it would have to be accepted that Mr. S. could not realistically be expected to live in Nigeria with Ms. E. were she to be

deported from this State. As his solicitors pointed out in correspondence, he is a person wholly dependent on disability benefit.

Moreover, his medical needs are such that he is also dependent daily on a complex range of medication which would simply not be

available (or, at the very least, not reliably available) in Nigeria.

The Minister’s Analysis

19. If Ms. E. were to be deported, it would in principle be permanent, subject only to the right of the Minister to revoke that order

under s. 3(11) of the 1999 Act: see, e.g., MAU v. Minister for Justice, Equality and Law Reform (No.1) (Unreported, High Court, 13th

December, 2010). In the file assessment which was conducted in respect of the application to revoke the deportation order the

Minister considered, however, that:-

“If Mr. [S.] wished to visit Ms. [E.] in Nigeria, the option would be open to him to apply for a visa to visit Nigeria in order

to see Ms. [E.]. In this respect that [Mr. S.’ solicitors] have indicated that Mr. [S.] ‘lives independently’ and ‘travels

freely’.”

20. One would have to say that this assessment is entirely unrealistic and totally unbalanced. Even assuming that he could obtain an

entry visa to Nigeria, the Minister gave no consideration to the question of how Mr. S. could possibly afford such a trip given that he

is wholly dependent on disability benefit. Likewise, the statement by Mr. S.’s solicitors that he is capable of independent living and

that he travels freely has been taken completely out of context in a totally unreasonable fashion. Those comments were made in the

context of addressing Mr. S.’s general mental capacity and his capacity for independent living and it is difficult to see how they could

reasonably have been viewed otherwise. Viewed objectively, they conveyed - and were intended to convey - the sense that Mr. S.

could move around between local towns in the midland region with which he was familiar and that he could cope - albeit, perhaps,

with some difficulty - with practical necessities, such as shopping, cooking and managing small amounts of money. That could not in

any sense be understood as suggesting that Mr. S. would be capable of independent travel to and from Nigeria. Indeed, one would

have reason to be fearful of the possible consequences were Mr. S. to attempt to travel alone to Nigeria, as I feel certain that he

would be entirely bewildered and overwhelmed in the attempt to move about in a totally foreign environment. The risk to his health

would, moreover, be considerable, not least given his requirement for extensive daily medication which either would not be available

or, at least, would not be securely available.

21. A person such as Mr. S. would, moreover, be liable to fall victim to the snares of the malevolent and the worldly wise who might

be tempted to exploit his innocent vulnerability as he attempted to navigate - what would be for him - the unfamiliar and enormously

challenging hazards of international airports, officialdom and immigration controls if he were to attempt such a journey. These

considerations are so manifestly obvious that I will merely say that it is most surprising that they do not feature at all in the Minister’s

analysis.

22. In these circumstances, the practical effect of the Minister’s decision would be to condemn this couple to live apart, more or less

permanently. It is very hard to see how such a decision would conform to the State’s obligation contained in Article 41.3.1 of the

Constitution “to guard with special care the institution of marriage”, absent some compelling justification. Of course, the imperative

need to uphold the integrity of the asylum system could - and often does - provide such a justification.

23. In this regard, the task of the Minister is to balance potentially competing interests in a proportionate and fair manner. It is true

that there is a considerable public interest in deterring illegal immigration and the Minister must naturally be prepared to act to ensure

that the asylum system is not manipulated and circumvented. Nevertheless, the requirement that the Minister must balance

competing rights necessarily involves a recognition that, important as the principle of maintaining the integrity of the asylum system

undoubtedly is, it must sometimes yield – if only, perhaps, in unusual and exceptional cases - to countervailing and competing values,

one of which is the importance of protecting the institution of marriage. The rights conferred by Article 41 of the Constitution are

nevertheless real rights and must be regarded as such by the Minister. They cannot be treated as if, so to speak, they were mere

discards from dummy in a game of bridge in which the Minister as declarer has nominated the integrity of the asylum system as the

trump suit.

24. It is true that the parties here married when the immigration status of Ms. E. was precarious. This is certainly a factor which the

Minister can properly take into account: see, e.g., the comments of Fennelly J. in TC v. Minister for Justice [2005] 4 I.R. 109 at 122.

In TC the Irish female had married a Romanian male in Bucharest some three months after the latter had already been deported from

the State. The parties then applied to the Minister to revoke the deportation order and to permit him to reside in Ireland with his new

wife. The Minister refused this application on the ground that the parties had not shown that they had lived together as part of a

family unit for an appreciable time of time since the date of their marriage.

25. In upholding the Minister’s decision, Fennelly J. stressed, however, that ([2005] 4 I.R. 109 at 122):-

“It was, of course, for the Minister to decide how the balance should be struck between the competing considerations. In

doing so, he was bound to respect the principle of proportionality. At least on the facts of this case, that obligation is no

different from his obligation to act reasonably. It has not been demonstrated that the Minister gave disproportionate

weight to one rather than the other consideration. He did not shut the door on the appellants. He made it clear, as

appears from Mr. Mortell’s affidavit, that he remained ready to consider such further evidence as might be submitted to

him on the issue of an appreciable period of cohabitation.”

26. In the present case, however, it is hard to avoid the conclusion that the disproportionate weight was given in the present case to

the need to maintain the integrity of the asylum process and, furthermore, that the entire assessment of the position of the parties in

general and Mr. S. in particular was unbalanced. First, the Minister’s decision contains no acknowledgment at all that Mr. S. may not

have fully understood the immigration status of Ms. E. and its possible implications for their marriage and choice of residence. Second,

as we have already seen, the Minister’s analysis of the position of Mr. S and his ability to travel to Nigeria is wholly unrealistic for the

reasons I have already set out. Third, the Minister’s decision not to revoke the deportation order struck at the very heart of the

applicants’ Article 41 rights, since it had the practical effect of compelling them more or less permanently to live apart in the

circumstances I have just described.

27. It is true that in Omoregie v. Norway [2008] ECHR 761 the European Court of Human Rights stressed (at para. 57) that where the

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 onset be precarious. Where this is the case the

removal of the non-national family member would be incompatible with Article 8 [ECHR] only in exceptional

circumstances”.

28. Similar comments have been by that Court on many other occasions, including leading cases such as Boultif v. Switzerland (2001)

33 EHRR 1179.

29. But even a superficial comparison with the facts of Omoregie show that the present case is quite exceptional, not least by reason

of the special and vulnerable status of the first applicant. By contrast, the Norwegian spouse of the Nigerian applicant in Omoregie

had already lived for several periods in another African country, namely, South Africa. The European Court expressly found (at para.

67) that “nothing should prevent the second and third applicants from coming to visit the first applicant for periods in Nigeria.” A

further consideration is that the Norwegian deportation order lasted only for a maximum period of five years (para. 67). While it is true

that under our system such a deportation order can be revoked at any time, it is nonetheless indefinite in principle.

30. In the earlier decision in Boultif, the European Court held (at para. 53) that it was unrealistic to expect a French-speaking Swiss

national to follow her Algerian husband to Algeria were he to be deported from Switzerland. She did not speak Arabic and had no other

ties with Algeria, so that the effect of that order would be to sunder entirely their family life, contrary to Article 8 ECHR. Judged by

these standards, it is equally unrealistic to expect Mr. S. to even travel to Nigeria, much less take up residence there.

Conclusions

31. In these circumstances, I am driven to the conclusion that the Minister’s decision was both disproportionate and unreasonable in

law. Having regard to the special facts of this case, the decision condemned this couple to the effective limbo of permanent

separation. The decision accordingly struck at the essence and substance of the applicants’ family rights under Article 41 of the

Constitution.

32. I will accordingly quash the Minister’s decision not to revoke the deportation order.