High Court grants extension of time and leave to challenge deportation and subsidiary protection decisions.

Neutral Citation Number [2012] IEHC 542

THE HIGH COURT

JUDICIAL REVIEW

Record No. 2011/1054 J.R.

Between:/

ERVIS TROCI AND SHARON MARY HEALY

APPLICANTS

-AND-

THE MINISTER FOR JUSTICE AND EQUALITY, THE COMMISSIONER OF AN GARDA SÍOCHÁNA AND THE ATTORNEY GENERAL

RESPONDENTS

AND

THE REFUGEE LEGAL SERVICE

NOTICE PARTY

JUDGMENT OF MR JUSTICE DANIEL O’KEEFFE, delivered on the 7th day of December 2012.

1. The applicants are a married couple. The first applicant Mr Troci is an Albanian national. His wife Ms Healy, the second applicant, is

an Irish citizen. They seek leave to apply for orders of certiorari quashing three decisions made in relation to Mr Troci – (i) the

Minister’s decision dated 16th February 2011 that he is ineligible for subsidiary protection; (ii) the Minister’s subsequent decision to

make a deportation order in respect of him; and (iii) the Minister’s refusal dated 27th October 2011 to revoke the said deportation

order. They require an extension of time to challenge decisions (i) and (ii).

2. The hearing took place over seven days between 26th April and 15th November 2012. Mr Conor Dignam S.C. appeared for the

applicants with Mr John Stanley B.L. and later with Ms Bríd Moriarty B.L., instructed by Daly Lynch Crowe and Morris, Solicitors. Ms

Siobhán Stack B.L. appeared for the respondents instructed by the CSSO.

BACKGROUND

3. Mr Troci claims to have arrived in Ireland by ferry in October or November 2007. He says he was fingerprinted by Gardaí upon

arrival, showed the authorities an Italian I.D. and was placed in a B&B but then ran away and lived with a cousin’s friend until he

applied for asylum on 26th June 2008. He submitted his Albanian passport and birth certificate and presented as a Muslim born on

16th September 1990. He said he feared persecution arising from a blood feud in Albania. He said his father and cousin dealt in

prostitution and drugs and in 2003 a prostitute who worked for his cousin died which gave rise to conflict with his cousin’s (named)

friend. That man killed his cousin in Naples in December 2004. In retaliation, Mr Troci’s father and cousins destroyed a bar run by the

men they suspected of the killing. Those men then tried to kill Mr Troci’s father who reported the matter to the police. One man was

arrested but he was released after bribing the police. In 2005 the other man abducted Mr Troci’s female cousin and her two children

and held them for two weeks. Efforts between the families to resolve the dispute failed and the two men remain intent on killing Mr

Troci’s father who in turn wanted to kill them. Fearing that he would be killed when he turned 18 Mr Troci fled in April 2007 before

finishing school and spent 20 days in Serbia and six months with relatives in Italy before coming to Ireland. His parents and one sister

remain in Albania while his second sister Amarilda lives in Ireland.

4. Being 17 years of age Mr Troci was treated as an unaccompanied minor and was taken into the care of the HSE. In September

2008 he turned 18. Some two months later the Refugee Applications Commissioner made a negative recommendation in his case based

on negative credibility findings. The authenticity of documents submitted relating to the feud was not verified. A photograph from an

Italian website sourced by the Commissioner was relied on; its caption indicated that a person bearing the name of Mr Troci’s cousin

was murdered northwest of Naples in 2004 by affiliates of the Camorra, an Italian organised crime organisation, because he was

dealing drugs in an area controlled by the Camorra. This was found to undermine Mr Troci’s credibility.

5. Mr Troci appealed through the Refugee Legal Service (RLS), taking issue with the credibility findings made against him. His oral

hearing took place in June 2009 and in October 2009 the Refugee Appeals Tribunal affirmed the negative recommendation, noting

discrepancies in his evidence and finding additional documentation submitted at the hearing to be internally inconsistent. The Tribunal

also found by reference to country of origin information (COI) that state protection is available to those involved in blood feuds in

Albania. Mr Troci did not challenge the Tribunal decision.

6. By letter dated 23rd November 2009 he was informed that he had been refused a declaration of refugee status. He was invited to

apply within 15 days for leave to remain and subsidiary protection. He took no action for more than a year until 6th December 2010

when the RLS made simultaneous applications on his behalf.

Subsidiary Protection

7. In support of his subsidiary protection application, the RLS repeated the blood feud narrative presented to the asylum authorities.

Submissions were made with regard to the effectiveness of state protection in Albania and it was submitted that it would be

unreasonable to expect Mr Troci to relocate internally as he is “a single and vulnerable man who effectively lacks family or other

supports”. His file was examined by an Executive Officer of the Repatriation Unit on 1st February 2011 and her conclusions were

approved by an Assistant Principal on 16th February 2012. The primary conclusion was that COI shows that the Albanian State is

willing and able to provide effective protection from blood feuds. Doubts were again expressed about the documentation furnished and

it was also found that because of the Tribunal’s doubts about his credibility, he did not warrant the benefit of the doubt. By letter

dated 17th February 2011 he was informed that the Minister had found him ineligible for subsidiary protection.

Leave to Remain

8. In his leave to remain application dated 6th December 2010, submissions were made under each of the headings set out in s. 3(6)

of the Immigration Act 1999. As to his family and domestic circumstances it was stated that he had been resident in the State for

over three years and had integrated well. He had completed work experience in Killarney. He completed language classes before

enrolling in secondary school in Dublin and later in Killarney. Testimonials were furnished from those schools. He was now in sixth year

and due to sit his Applied Leaving Certificate exams in June 2011 and he would like to pursue third level studies in engineering. He

played soccer in Dublin for one month. His sister Amarilda and her spouse had residency in Ireland and they have one child aged

around seven years. It was stated “Our client instructs that he has very little contact with his sister, however.” Submissions were

made about his employment prospects, the economy in general, humanitarian considerations and the principle of non refoulement. The

facts advanced during the asylum process were also put forward and it was submitted that his claim was borne out by COI. With

respect to state protection and internal relocation it was submitted, as in the subsidiary protection application, that he was “a single

and vulnerable young man who effectively lacks family or other supports”.

9. By letter dated 13th December 2010 the RLS wrote to the Acknowledgements Unit of the Irish Nationality and Immigration Service

(INIS) at Burgh Quay as follows:-

“Dear Sir / Madam

Our client instructs that he wishes to get married in early January 2011 and that the Registry Office has requested that

he submit his passport to them. We would therefore be obliged if you would return his passport to us for onward

forwarding by our client to the Registry Office.

Yours faithfully [etc]”.

10. That letter bore his asylum and RLS reference numbers. By reply dated 16th December 2010 the INIS Repatriation Unit indicated

that his original passport could not be furnished until a decision was made on his case but a photocopy was furnished.

11. On 4th February 2011 the applicant’s file was examined by the same Executive Officer who had examined his subsidiary protection

application. She found that there was nothing to suggest that he should not be returned to Albania. In considering Article 8 of the

European Convention on Human Rights (ECHR) she noted:-

“He is not married and he does not have any children. he has not submitted that he is in a relationship in this State. Both

of Mr Troci’s parents are residing in Kamez, Tirana. He has two sisters one of whom resides in Albania and the other

resides in Ireland. He does not reside with his sister in Ireland.”

12. It was therefore found that his deportation would not constitute an interference with his right to respect for his family life. The

recommendation made to the Minister was that a deportation order should be made, which recommendation was approved by a more

senior official on 16th February 2011. The Minister made a deportation order on 21st February 2011 and this was notified to Mr Troci

by letter dated 24th February 2011. He was directed to leave the State by 13th March 2011 and to remain outside the State

thereafter. He was further instructed to attend at the GNIB at Burgh Quay on 15th March 2011 to make arrangements for his

deportation.

Subsequent Events

13. On 1st March 2011 the applicants married in the Registrar’s Office in Killarney. On the same day, the RLS wrote to Mr Troci

advising him to seek the services of a private solicitor in relation to the deportation order and advising that if he could not obtain a

private solicitor he should revert to them. The following day, he contacted the RLS and advised that he had married an Irish citizen.

He was again advised to seek private representation. On 7th March 2011 a named solicitor based in Killarney contacted the RLS and

advised that he might not be best placed to take the client’s case. It was agreed that he would discuss the matter with the assigned

RLS solicitor the next day.

14. By letter dated 8th March 2011 the Killarney solicitor furnished a copy of the applicants’ marriage certificate to the Minister and

formally applied for amendment or revocation of the deportation order pursuant to s. 3(11) of the Immigration Act 1999 on the basis

of Mr Troci’s marriage to an Irish citizen. Evidence of Ms Healy’s citizenship and their cohabitation since at least September 2010 was

furnished. Later that day the Killarney solicitor told the assigned RLS solicitor that he could not take judicial review proceedings on

behalf of the applicants. Later that day, the case was referred to the RLS judicial review unit, a solicitor in that unit was assigned

and an application for a legal aid certificate for counsel’s opinion was made.

15. The application for a certificate for counsel’s opinion was refused on 21st March 2011. The RLS appealed and on 18th April 2011 a

certificate for counsel’s opinion was granted. Senior counsel was briefed and contact was maintained with the first applicant while her

opinion was awaited. A change of Senior Counsel was necessitated and an opinion was received on 28th July 2011. That same day

the RLS applied for legal aid to institute proceedings. The Director of Legal Aid sought a supplemental opinion from Senior Counsel

which was furnished on 5th September 2011. That day, a decision was taken not to grant legal aid to institute proceedings. That

decision was notified to the first applicant by phone on 6th September and by letter dated 9th September 2011. On 13th September

2011 he instructed his current solicitors who received his file from the RLS on 20th September 2011. On 12th October 2011 they

sought the opinion of counsel. Counsel was about to revert with draft proceedings when events intervened on 25th October 2012.

Revocation Application

16. On 25th October 2011 the first applicant was arrested when he attended at Burgh Quay pursuant to directions. He was detained

at Cloverhill prison on suspicion of an attempt to evade deportation. His current solicitors wrote to the Minister that day seeking his

release from custody, asking for clarification of the basis for his detention and seeking a copy of any decision on the revocation

application made by his Killarney solicitor in March. The Minister was informed that the applicant and his wife knew each other for two

years, that they were living together for 1 ½ years, that Ms Healy works in a named hotel in Killarney, and that they had moved in

with her family owing to financial difficulties. It was submitted that it would not be possible for Ms Healy to move to Albania owing to

language, cultural and employment reasons and that it would be unduly harsh, unreasonable and disproportionate to expect her to do

so.

17. Additional submissions were made the following day in support of the revocation application which at that stage was considered

extant. It was stated that Mr Troci’s sister Amarilda is now an Irish citizen and that her children born in 2003 and 2005, who are Irish

citizens, are the applicants’ godchildren. It was stated that the deportation of Mr Troci would affect his sister and her husband, an

Albanian citizen resident in Ireland since June 2003, and their two children. Submissions were also made with regard to Ms Healy’s

parents and her sister and brother who are Irish citizens, and the applicants’ many friends. It was stated that Ms Healy has been

working in the same hotel for the past ten years, that Mr Troci had developed a very positive relationship with his in-laws and his

parents in law would be hugely upset at his deportation and the breakdown of their daughter’s marriage. Detailed submissions were

made with respect to the applicants’ rights under Article 41 of the Constitution and Article 8 ECHR.

18. Personal statements written by the applicants and by Mr Troci’s sister were appended to the submissions made on 26th October

2011. The applicants each described how they had met and how their relationship had developed. Ms Healy stated that she had been

introduced to Mr Troci’s parents over the internet and speaks to them most days and was trying to learn Albanian. She said that if

her husband was deported she would try to live in Albania but would find it near impossible owing to language, race, culture and

religion. She said Mr Troci proposed on his birthday (16th September) 2010 and they registered their intention to marry on 22nd

September 2010. Mr Troci’s sister said she had become close to him over the previous three years and he had done everything

possible for her two children whose father is not around regularly around for them. She said he is the only immediate family and

support she has in Ireland. She said she thought Ms Healy would find it very difficult to adjust to the different culture and life in

Albania. She said it would ruin her family life if her brother was deported.

The First Revocation Decision

19. On 27th October 2011 the applicants’ solicitors issued proceedings [2011/1042 J.R.] and counsel brought an application for an

interim injunction restraining the deportation of Mr Troci pending the determination of his extant revocation application. In

circumstances unknown to this Court, that became an application for his release pursuant to Article 40 of the Constitution

[2011/2185 S.S.]. In that context the applicants became aware that the Minister had decided on 14th October 2011 to refuse the

revocation application made by the Killarney solicitor, and that decision had been notified the said solicitor and to Mr Troci at his last

known address. By then the applicants had moved house and changed solicitors although Mr Troci says he notified the GNIB of his

change of address. It is common case that the Minister has now furnished a copy of the decision to the applicants and their current

solicitors. That decision is extant; it not challenged in these or any other proceedings.

The Second Revocation Decision

20. On 27th October 2011, having received the representations made by his current solicitors on 25th and 26th October and the

enclosures thereto, the Minister’s officials re-examined Mr Troci’s case which had previously been considered in February 2011 and

October 2011. Consideration was given to his rights under Article 8 ECHR and Article 41 of the Constitution. The five questions

identified in R (Razgar) v. Secretary of State for the Home Department [2004] 2 A.C. 368 were examined. It was accepted that his

deportation would interfere with his right to respect for his family life but it was found that the proposed interference was in

accordance with law and pursued a pressing social need and the following legitimate aims of the State:

“(a) to maintain control of its own borders and operate a regulated system for control, processing and monitoring of

non-national persons in the State

(b) to ensure the economic well being of the State.”

21. It was also found that his deportation was necessary in a democratic society and that he has been given an individual

assessment and due process in all respects and that “there is no less restrictive process available which would achieve the legitimate

aim outlined above”. Consideration was next given to the proportionality of the decision. The submissions made by and on behalf of

the applicants and her parents and his sister and nieces were summarised. It was noted that when they married, the applicants were

aware of the precarious status of Mr Troci and that the Minister was proposing to make a deportation order against him and that he

had no legal basis for residing in the State and may be required to leave. He was illegally in the State when they married. It was a

matter of choice for them whether they live together as a family in Albania and the State is under no general obligation to respect the

choice of residence of married couples. It was found that there were no exceptional circumstances or compelling reasons which would

mean that the enforcement of the deportation order would be contrary to Article 8. Although relocation might involve a degree of

hardship to Ms Healy, there were no insurmountable obstacles to her moving to Albania to maintain family life with Mr Troci.

22. With regard to Article 41 of the Constitution it was found that there is no authority to support the proposition that an Irish citizen

has a right to reside in the State with his or her spouse. Reference was made to the rights of the State with regard to immigration

control and the economic well-being of the State and those factors were found to be weightier than the rights of the individual

family. It was stated that the State has the right to uphold the integrity of the State, to control the entry, present and exit of

foreign nationals and to ensure the economic well-being of the State. These were identified as substantial reasons associated with

the common good which require his deportation. The deportation order was therefore affirmed and the decision was furnished to Mr

Troci in court on 28th October 2011, the return date of the Article 40 application.

DELAY

23. As noted above the applicants have sought an extension of time to bring these proceedings. The relevant dates are as follows.

The subsidiary protection decision was notified by letter dated 17th February 2011 and the deportation decision by letter dated 24th

February 2011. The subsidiary protection decision is governed by the six-month rule set out in (pre-amendment) Order 84 RSC which

also requires litigants to act promptly within that time. Those six months expired in mid-August 2011. Proceedings issued on 1st

November 2011 and the leave application was moved on notice to the respondents on 26th April 2011. The deportation decision is

governed by the shorter 14-day limit established by s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000. Those 14 days expired in

mid-March 2011. An extension of 7 ½ months is therefore required to challenge that decision. No extension is required to challenge

the revocation decision.

24. The applicants’ solicitor has sworn a detailed affidavit dealing with the delay in issuing proceedings and exhibiting an RLS memo

setting out the steps which they took and their correspondence with the Killarney solicitor. It is averred that the case was fraught

with administrative difficulty but that the applicants acted at all times with due diligence and they are not culpable for the delay. It is

also averred that the delay has not prejudiced the respondents.

25. The respondents do not take issue with the delay up to 9th September 2011 when the RLS informed Mr Troci that they would not

be taking proceedings on his behalf. The respondents contend however that there was unexplained delay thereafter. They contend

that the subsidiary protection challenge should have been moved ex parte and that it follows from S.P. v. The Minister & Others

[2012] IEHC 18 that time does not cease to run until an ex parte application is moved in Court. The applicants have not explained

why they did not move ex parte. The respondents further contend that the applicants have not shown that they formed an intention

to challenge the decisions within the relevant time, which is necessary in light of the judgment of Denham J. in S v. The Minister

[2002] 2 I.R. 163. In the respondents’ contention, Mr Troci’s actions belie the contrary intention insofar as he opted, having accessed

legal advice, not to challenge the decisions but instead to seek revocation of the deportation order. Finally, the respondents submit

that the applicants cannot blame their lawyers for the delay; reliance is placed on the judgment of McCracken J. in S.M. v. The

Minister & Others [2005] IESC 27.

26. The Court considers that the question of whether good and sufficient reason has been shown for an extension of time

encompasses an assessment of the merits of the case. The Court will therefore consider the merits before coming to a decision on

delay. Leave was sought on grounds 1 to 25 of the applicants’ statement of grounds; ground 26 was not formally pursued and

grounds 27 to 32 are merely explanatory.

I. CHALLENGE TO THE SUBSIDIARY PROTECTION DECISION

27. Grounds 1 to 15 of the applicants’ statement of grounds relate to the subsidiary protection decision. Ground 2 will be dealt with

by way of an addendum to this judgment. Grounds 7, 8, 10 and 14 are merely explanatory. Grounds 1 and 15 relate to the familiar

argument that the subsidiary protection procedures adopted by the State are deficient because there is no right of appeal. Ground 6

is also frequently rehearsed; it relates to the contention that there is no effective remedy for a breach of the EU law right to apply

for subsidiary protection. These arguments have been refused on a consistent basis in a large number of judgments which do not

require to be recited here. The applicants conceded this point at the leave hearing and it seems leave was formally sought in order to

preserve the applicants’ position on appeal. Leave is therefore refused on grounds 1, 6, 7, 8, 10, 14 and 15. Leave is also refused on

ground 13 as it is clear from S.I. No. 518 of 2006 that the Minister is the designated determining authority responsible for an

appropriate examination of a subsidiary protection application and the perceived lack of a formal designation procedure cannot

prejudice the applicants.

28. Grounds 3, 4, 5, 9, 11 and 12 relate to a procedural argument which has come to be known as “Enmeshment”. There are several

limbs to this argument but it boils down to the contention that because subsidiary protection is considered as part of the deportation

process and not as part of a unified protection process, Mr Troci was disadvantaged. Not only was he told that his permission to

remain in the State has expired before he was invited to apply for subsidiary protection, he was also told that if he chose to apply for

subsidiary protection and was unsuccessful, he would no longer be in a position to leave the State voluntarily without attracting a

deportation order. Leave has been granted on analogous arguments in J.C.M. and M.L. v. The Minister (Unreported, High Court, 12th

October 2012) and V.J. (Moldova) v. The Minister [2012] IEHC 337. The applicants contend that they have even stronger grounds

than the applicants in those two cases, given that in this case the rights of an EU citizen are at stake.

29. The respondents concede that there are arguable grounds in relation to the enmeshment argument. They contend however that

leave should not be granted because of the unexplained delay in challenging the subsidiary protection and because of the failure to

explain why the challenge was not moved ex parte. The Court is not persuaded by the respondents’ argument on delay. The affidavit

sworn by the applicants’ solicitor establishes that there was institutional delay with regard to legal aid within the Legal Aid Board.

That is not to criticise the RLS which is undoubtedly under an immense workload. The crucial point is that Mr Troci sought and

followed the advices given to him by the RLS. He promptly sought private representation in Killarney but the solicitor approached

could not bring proceedings on his behalf. Mr Troci then reverted to the RLS and maintained contact with them while his case was

being processed. He also continued to attend at Burgh Quay as directed. He was informed by letter dated 9th September 2011 that

the RLS could not bring proceedings on his behalf and by 13th September 2011 he has instructed his current solicitors. There was

undoubtedly some additional lawyer-driven delay thereafter but the applicants were in no way blameworthy; again the Court does not

seek to criticise – counsel were briefed during the legal vacation and at the busy beginning of the legal year, and this is a case of

considerable complexity. Indeed the fact that the leave hearing took seven days and that 25 grounds and 20 reliefs were sought in

the original statement of grounds and a further 5 grounds and an additional declaration were sought by way of the motion to amend

are evidence of the complexity of the case.

30. The Court is equally unpersuaded by the respondents’ complaint that the applicants have not shown that they formed the

intention to pursue their challenge within the relevant time. The RLS wrote to Mr Troci on the day of his wedding asking him to seek

private legal advice regarding the deportation order. He contacted them the very next day and within five days thereafter he had

sought out the advice of a local solicitor. The Court considers that it can be inferred from his actions that he had indeed formed the

intention to challenge the subsidiary protection and deportation decisions and was seeking assistance to launch his challenge.

Moreover the steps taken on his behalf seeking revocation or amendment of the deportation order are not necessarily inconsistent

with an intention to challenge the deportation order.

31. The respondents’ final argument with regard to delay in relation to the subsidiary protection decision is that the applicants have

not explained why they did not move ex parte. Subsidiary protection decisions are not caught by s. 5 of the 2000 Act and should

therefore be sought ex parte and, pursuant to the judgment of Cooke J. in S.P. (cited above), time does not run until the motion is

moved in Court. In this case, the applicants and their legal representatives chose to wait and move the leave application on notice

together with the challenge to the deportation order. The respondents submit that this was a procedural error. However the Court

considers that in the particular circumstances of the case, they ought not to be refused an extension of time. The procedural

challenges to the subsidiary protection decision is bound up with the deportation challenge and it perhaps seemed most prudent to

move both applications for leave together, on notice to the respondents. The Court sees some merit in that approach; it may have

been more sensible for the challenges to travel together and be heard by one judge. The respondents were not prejudiced by the

approach adopted; in fact it is more likely that it was to their advantage as they were on notice and therefore in a position to

respond.

32. Given that leave has already been granted in at least two other cases on the “Enmeshment” point, the Court is satisfied that the

applicants should not be prevented from challenging the subsidiary protection decision on that point simply because of a technical

procedural error as to the manner in which leave was sought. An extension of time will be granted and leave will be granted on

grounds 4, 5 and 11 (a), (b) and (c). Leave will not be granted on grounds 3 and 9 which are unduly wide, or on grounds 11 (d)

and (e) and 12 which the applicants did not address by way of oral submission.

II. CHALLENGE TO THE DEPORTATION DECISION

33. Grounds 16 to 18 of the statement of grounds relate specifically to the deportation decision. They relate to the consideration

given to the applicants’ family rights under Article 41 of the Constitution, Article 8 of the ECHR and Article 7 of the Charter of

Fundamental Rights of the EU when the file was examined in February 2011. The applicants say the Minister was on notice of their

intended marriage as and from the 13th December 2010 when the RLS wrote to the Acknowledgements Unit in the terms set out at

paragraph 9 above, seeking the return of Mr Troci’s passport to allow him to marry. That letter bore his INIS and RLS reference

numbers as did the Repatriation Unit’s letter of reply sent three days later and so, that Unit must be taken to have had not merely

constructive but actual notice of the intended marriage. Nonetheless the examination of file made no reference to the intended

marriage; instead it stated that he is unmarried and that he had not submitted that he was is a relationship in Ireland.

34. The Court is satisfied that there is no merit to the applicants’ complaints with regard to the consideration given to their family

rights in February 2011. Insofar as they complain that the Minister did not take the letter of 13th December as notice of their

intended marriage, the applicants have sought to impose too high an onus on the Minister. As the respondents have pointed out, the

detailed written representations of 6th December 2010 made no reference to the intended marriage or to the applicants’ relationship;

they presented the applicant as a single young man without family support. In fact, the applicants had been engaged since 16th

September 2010 and they had registered their intention to marry on 22nd September 2010 with an intended date of January 2011.

The Minister was not on notice of that information. The intention to marry signalled in the letter of 13th December 2010 is wholly

inconsistent with the information proffered in the letter of 6th December 2010. Moreover, the letter of 13th December did not state

whom Mr Troci intended to marry, where they intended to marry, whether the ceremony would be religious or civil or both, how long

they had been in a relationship or what citizenship his fiancée held. The letter was entirely bereft of detail. For all the Minister knew,

Mr Troci who is a Muslim intended to engage in a religious ceremony in a mosque with a third country national who was illegally in the

State. Furthermore the applicants failed to make updated submissions when a decision was taken to postpone their intended marriage

from January to March 2011 owing to illness in the family. A further point emerging therefrom is that at the time when the deportation

order was made, the marriage had not yet occurred and so the protection of Article 41 of the Constitution did not technically extend

to the applicants.

35. It is well established that foreign nationals who seek permission to remain in the State are not passive participants in the process.

Rather it is for the applicant to put his or her best foot forward and to put all relevant information before the Minister, if necessary by

way of updated submissions. The Supreme Court has affirmed these principles in Re Article 26 and the Illegal Immigrants (Trafficking)

Bill 1999 [2000] 1 I.R. 1 and in Oguekwe v. The Minister [2008] 3 I.R. 795. The Minister’s obligation under s. 3(6) (c) of the

Immigration Act 1999 to have regard to family and domestic circumstances applies only “insofar as they appear or are known to the

Minister.” The Minister is under no obligation to conduct fact-finding exercises and he ought not to engage in impermissible

speculation or conjecture. Leave is therefore refused on grounds 16, 17 and 18.

III. COMBINED CHALLENGE TO DEPORTATION & REVOCATION DECISIONS

36. Grounds 19 to 25 relate both to the deportation decision and to the (second) refusal to revoke. Ground 19 and 23 overlap insofar

as both relate to the general proportionality of the decisions. Ground 20 and 22 respectively concern the consideration given to the

couple’s rights under Article 41 of the Constitution and Article 8 ECHR; grounds 21 and 24 address their rights under the Charter of

Fundamental Rights of the EU and ground 25 relates to their rights under Article 20 TFEU. The Court will begin by reference to the EU

law aspects and then return to the other arguments.

Article 7 of the Charter

37. The applicants contend that the Minister erred in failing to consider their rights under Articles 1, 7, 47 and 49 of the Charter of

Fundamental Rights of the EU. Article 1 sets out the right to human dignity; Article 7 the right to respect for private and family life;

Article 47 the right to an effective remedy and a fair trial; and Article 49 the principles of legality and proportionality or criminal

offences and penalties.

38. The Court is satisfied that this argument is fundamentally misconceived. The judgment of the CJEU in Dereci & Others v.

Bundesministerium für Inneres (Case C-256/11, 15th November 2011) does indicate that circumstances may arise where Article 7 of

the Charter may give rise to an obligation on a Member State to grant a residence permit to a family member of an EU citizen.

However, the CJEU stressed that under Article 51(1) of the Charter, its provisions are addressed to the Member States only when

they are implementing EU law. The Court is satisfied having regard to Article 51 that the provisions the Charter have no application

when the Minister is considering whether to make or revoke a deportation order. The power to make a deportation order under s. 3(1)

of the Immigration Act 1999 and the power to revoke under s. 3(11) of that Act are functions which are exclusively within the

purview of domestic law. This is clear from Lofinmakin (an infant) & Others v. The Minister [2011] IEHC 116 where, in the context of

a challenge to a deportation order, the applicants sought to rely on the Charter. Cooke J. rejected the attempt thus:

“The provisions of the Charter are addressed to the institutions, bodies, offices and agencies of the Union and apply to

the Member States "only when implementing Union law" (See Article 51.) The making of a deportation order under s. 3 of

the Act of 1999 is wholly unconnected with the implementation of Union law.”

39. The Minister was therefore under no obligation to consider the applicants’ rights under the Charter before making a deportation

order or refusing to revoke it.

Article 21 TFEU

40. The applicants further contend that Minister should have considered Ms Healy’s rights as a Union citizen under Article 21 of the

Treaty on the Functioning of the EU (TFEU) and her husband’s derivative rights. This interesting argument was rehearsed at length

during the course of the leave hearing by reference to the judgments the CJEU in Zambrano v. ONEm (Case 34/09, 8th March 2011);

McCarthy v. Secretary of State for the Home Department (Case C-434/09, 5th May 2011) and Dereci & Others (cited above). The

applicants argue that if there is any doubt about where they lie on the Zambrano / McCarthy / Dereci spectrum, a preliminary

reference should be made to the CJEU. They seek to distinguish themselves from McCarthy (where no breach was identified) on the

basis the CJEU considered that Mrs McCarthy, a UK citizen, and her Jamaican spouse could reside elsewhere in the EU and so, the

refusal to grant him permission to reside in the UK did not contravene Article 21 TFEU. The contention in this case is that the

deportation of Mr Troci will not only result in his exclusion from Ireland but also, potentially, from the territory of the EU. This is

because the Minister has signalled to an unrelated person and by way of the long title to the Immigration, Protection and Residence

Bill 2010 that the State intends to opt in to Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of third

country nationals and to adopt implementing regulations.

41. The Court is satisfied, having considered Zambrano, McCarthy and Derici, that in light of the particular facts relating to these

applicants, there was no obligation on the Minister to consider their EU Treaty rights, as the applicants’ situation has no factors

linking it to EU law but is instead governed solely by domestic law. The information before the Minister was that Ms Healy, a national

of Ireland, has always lived in Ireland and has worked in the same hotel in Killarney for the past ten years. There is no evidence that

Ms Healy has ever exercised her right to free movement, either individually or with Mr Troci. This was also the position of Mrs Shirley

McCarthy. The CJEU in McCarthy considered whether Article 21 TFEU was applicable in her situation, with the added complication

that Mrs McCarthy had dual Irish / British citizen. The CJEU found that the refusal of a residence permit to her Jamaican husband Mr

McCarthy would not deprive Mrs McCarthy of the genuine enjoyment of her rights as a Union citizen under the principles established

Zambrano, for the following reasons:-

“48. As a national of at least one Member State, a person such as Mrs McCarthy enjoys the status of a Union citizen

under Article 20(1) TFEU and may therefore rely on the rights pertaining to that status, including against his Member

State of origin, in particular the right conferred by Article 21 TFEU to move and reside freely within the territory of the

Member States ….

49. However, no element of the situation of Mrs McCarthy … indicates that the national measure at issue in the main

proceedings has the effect of depriving her of the genuine enjoyment of the substance of the rights associated with her

status as a Union citizen, or of impeding the exercise of her right to move and reside freely within the territory of the

Member States, in accordance with Article 21 TFEU. […].

50. In that regard, by contrast with the case of Ruiz Zambrano, the national measure at issue in the main proceedings

in the present case does not have the effect of obliging Mrs McCarthy to leave the territory of the European Union.

Indeed … Mrs McCarthy enjoys … an unconditional right of residence in the United Kingdom since she is a national of the

United Kingdom.”

42. The CJEU concluded at paragraph 55 that “the situation of a person such as Mrs McCarthy has no factor linking it with any of the

situations governed by European Union law and the situation is confined in all relevant respects within a single Member State.” As a

result, the Treaty rules governing freedom of movement for persons and the measures adopted to implement them were inapplicable in

her case.

43. The CJEU affirmed this approach in Dereci & Others, where it was asked for a ruling on a number of questions referred to it by

Austrian Ministry of Home Affairs in relation to five families comprising various combinations of EU citizens and third country nationals

with different degrees of dependency. The CJEU was essentially asked to identify in which cases the refusal of a residence or work

permit would deprive the Union citizen of the genuine enjoyment of his / her citizenship rights and in which it would not. The CJEU

stated as follows at paragraphs 66-69:

“[…] the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of

European Union citizen status refers to situations in which the Union citizen has, in fact, to leave not only the territory

of the Member State of which he is a national but also the territory of the Union as a whole.

That criterion is specific in character inasmuch as it relates to situations in which, although subordinate legislation on

the right of residence of third country nationals is not applicable, a right of residence may not, exceptionally, be refused

to a third country national, who is a family member of a Member State national, as the effectiveness of Union citizenship

enjoyed by that national would otherwise be undermined.

Consequently the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in

order to keep his family together in the territory of the Union, for the members of his family who do not have the

nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to

support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.” (Emphasis

added)

44. The CJEU found that it is a matter for national courts to verify whether the refusal of a residence permit to a third country

national family member would lead, for the EU citizen, to the denial of the genuine enjoyment of the rights as a Union citizen.

Unfortunately, the CJEU did not give specific consideration to the five scenarios referred.

45. Since the hearing in the present case, the CJEU reaffirmed its finding in McCarthy and Derici at paragraphs 43-50 of its judgment

in O, S and L v. Maahanmuuttoviras (Joined Cases C-356/11 and C-357/11, 6th December 2012). Those cases concerned the rights

of third country national step-fathers of Finnish citizen children. The CJEU identified several distinguishing factors between the

children in those cases and the children in Zambrano insofar and found that the Union citizen children in O, S, and L would not be

obliged to leave the territory of the Union if their step-fathers were refused permission to remain, as their mothers had permanent

residence in Finland, their step-fathers did not have custody of the Union citizen children, and they were not legally, financially or

emotionally dependent on their step-fathers.

46. Until the CJEU gives further guidance in relation to the parameters of the rights identified in Zambrano, there are three objective

yardsticks by which the denial of genuine enjoyment of rights emanating from EU citizenship can be measured: (i) the case of Ruiz

Zambrano, (ii) the case of Mrs McCarthy and (iii) the cases of the Finnish citizen children in O, S and L. The Court considers that Ms

Healy’s position falls much closer to Mrs McCarthy and the Finnish children than to Mr Zambrano. In fact, the Court cannot identify

any factor which would distinguish the position of Ms Healy from that of Mrs McCarthy, save the dual citizenship of Mrs McCarthy

which the CJEU appears to have considered irrelevant. Although this is not determinative, both Ms Healy and Ms McCarthy are

‘stationary EU citizens’ - neither has exercised her right to freedom of movement. Like Mrs McCarthy, Ms Healy enjoys an

unconditional right of residence in Ireland. Most importantly, Ms Healy is not at risk of having to leave the territory of the EU. The

deportation of Mr Troci will not see her deprived of her means of subsistence as she is not financially dependent on him, which was

one of the distinguishing factors between the position of the Union citizen children in Zambrano and those in O, S and L. Ms Healy

might prefer to reside with her husband in Ireland but it is clear from Dereci and O, S and L that such a desire is not determinative.

The CJEU does not appear to have placed any great emphasis on Mrs McCarthy’s reliance on State benefits and so this Court does

not consider that for the purposes of Articles 20 and 21 TFEU the work history of Ms Healy puts her in a different position to Mrs

McCarthy who never worked.

47. Moreover it has not been established that there is any real impediment to Mr Troci and Mr Healy establishing family life elsewhere

in the EU. The arguments made as to the potential effect of Directive 2001/40/EC are, in the words of the respondents, a canard and

do not establish a real impediment to reunion elsewhere in the EU. Directive 2001/40/EC is a Title IV measure and by virtue of the

Protocol (No. 21) on the Position of the UK and Ireland in respect of the Area of Freedom, Security and Justice, such measures are

not binding upon or applicable in Ireland unless the State notifies its intention to take part in the adoption and application of the

measure or its intention to no longer be covered by the terms of the Protocol. Recital (8) to that Directive states that the UK opted

in to the Directive in 2000. There is no evidence before the Court that Ireland has signalled its intention to opt in. Reference to the

Directive in the long title of a redraft of a Bill which was published two years ago and has stagnated ever since cannot constitute

evidence of such intention. In any event, the status of the Directive in Ireland is immaterial as it is clear from Article 1(3) thereof that

the Directive “shall not apply to family members of citizens of the Union who have exercised their right of free movement.” It follows

that even if Ireland was to opt in, it would not automatically mean that the deportation of Mr Troci would preclude him from gaining

rights under Article 7 of Directive 2004/38/EC in a host Member State in which Ms Healy was exercising her Treaty rights, provided

that she fulfilled the relevant criteria. It is most likely for this reason that the CJEU in McCarthy paid no attention to the Directive

2001/40/EC.

48. For the foregoing reasons, the Court is satisfied that the principles applicable to free movement under the TFEU and the rights

protected by the Charter have no applicability in this case. Leave is refused on grounds 21, 24 and 25.

Article 41 of the Constitution

49. Ground 20 sets out the contention that the Minister did not properly consider the applicants’ rights under Article 41 of the

Constitution. Relying on the judgment of Clark J. in S v. The Minister (Unreported, High Court, 13th October 2011), the applicants

submit that the Minister ought to have considered revoking the deportation order and granting Mr Troci a limited visa with conditions

attached, subject to renewal and on condition that he did not become a charge on the State and was of good behaviour. They

further rely on X.A. (a minor) & Others v. The Minister [2011] IEHC 397 where Hogan J. held – departing from the decision of Clark J.

in H.U. v. The Minister [2010] IEHC 371 – that it was “a pure fiction” to suggest that the Irish citizen wife had a “choice worth

speaking of” insofar as she faced a choice between remaining in Ireland with her Irish citizen child and her older foreign national

children from a previous relationship and moving to Nigeria to maintain family life with her Nigerian husband who was being deported.

The applicants contend that their situation is akin to that of the mother in X.A. (a minor).

50. The respondents referred the Court to a long line of judgments including Osheku & Others v. Ireland [1986] I.R. 733; Pok Sun

Shum & Others v. Ireland & Others [1986] ILRM 593; P. and L. v. The Minister [2002] 1 I.R. 164; A.O. and D.L. v. The Minister [2003]

I.R. 1; C. (Cirpaci) v. The Minister [2005] 4 I.R. 109; Margine v. The Minister [2004] IEHC 127; A.A. v. The Minister [2005] 4 I.R. 564;

Alli (a minor) v. The Minister [2010] 4 I.R. 45 and most recently P.U.O. & C.M. v. The Minister [2012] IEHC 458. The following general

principles emerge from those cases. The rights of the family under Article 41 of the Constitution are not absolute and cannot be seen

in isolation from the inherent right of the State to control immigration, which is generally accepted to be in the interests of social

order and the common good. On a very basic level, Article 41 protects families against arbitrary interference in their marital relations.

However, it does not create a right for foreign national family members to reside in Ireland. Marriage to an Irish citizen confers neither

Irish citizenship nor a right of residence in Ireland on a foreign national spouse. Married couples comprising one Irish citizen and one

third country national are not entitled to impose their choice of residence on the Irish State. Equally the State is not obliged to

respect that choice and is entitled to enforce legitimate immigration and border control in a fair and orderly fashion.

51. It is clear also from the case law that the Minister is obliged, when considering the deportation of a foreign national family member

of an Irish citizen, to take account of the personal circumstances of the couple and to carefully weigh their interests against the

interests of the State. Ultimately the Minister’s decision must be proportionate to the aims to be achieved. This means there should

not be any more interference with citizen’s constitutional rights than is necessary. Among the relevant considerations to be weighed

in the balance are the duration of the relationship, the duration of cohabitation as a family unit and the immigration history of the

foreign national family member. The Supreme Court held in A.O. and D.L. (cited above) that if the Minister wishes to make a

deportation order which will potentially interfere with family life, he must identify a substantial reason associated with the common

good which requires such interference but provided that the personal circumstances of the family are considered, the reason

identified need not be specific to the private character of the proposed deportee; it may relate to the general imperative of

immigration control. The applicants have not established any reason to depart from that well-established principle.

52. The question of whether a proportionate decision has been reached must be assessed by reference to the particular facts of the

family in question. The applicants in this case have not pointed to any relevant factor which was not considered by the Minister. It is

clear that he knew of the applicants’ personal circumstances and it is inconceivable that he was unaware of the consequences which

the deportation of Mr Troci might have upon their family unit. Indeed it was specifically noted that there might be a degree of

hardship for Ms Healy if she was to move to Albania. In the circumstances the Court is satisfied that the Minister complied with the

requirements identified in the case law cited above. He weighed all relevant factors in the balance and the applicants now effectively

argue that he should have reached a different conclusion.

53. The Court is further satisfied that the conclusion reached by the Minister, i.e. that there were no insurmountable obstacles to the

couple relocating to Albania, was not unreasonable in all the circumstances. Given its apparent departure from an established line of

decided cases, including successive judgments of the Supreme Court, the Court is not persuaded that the reasoning adopted in X.A.

(a minor) is of general application. No reason has been identified to this Court which would justify departure from the established line

of decisions including Osheku, Pok Sun Shum, A.O. and D.L. and Oguekwe. The position of the applicant remains as stated by Clark J.

in H.U. (with the obvious caveat that the husband in that case was from Nigeria, not Albania):-

“The choice the wife now faces is whether to remain in Ireland and raise her son here without her husband, or relocate

to Nigeria with him and raise their son together there. This is a choice faced by many couples who come from different

countries or even different parts of large countries. Married inter-racial or inter-religious couples often face choices

which involve compromise and sacrifices in relation to their choice of residence, standards or beliefs. Adults who marry

must make these decisions themselves without seeking the answers in constitutional rights which are neither guarantees

nor immunities but must be seen in the context of social order and the common good.”

54. In this case, the representations to the Minister suggested that Ms Healy would encounter difficulties in a social, cultural and

linguistic sense in Albania and it was submitted that she would find it difficult to secure employment there. However, those

submissions were lacking in specificity and they were somewhat inconsistent with the parallel submission that she had been learning

Albania and has become quite good and had established a relationship with her in-laws in Albania over the internet. No submissions

were made with regard to potential difficulties arising from her religious beliefs or indeed those of her husband. There was no

compelling evidence that it would be unreasonable to expect her to join Mr Troci in Albania.

55. The applicants have sought to reopen the debate about whether the absence of a less restrictive process is a substantial reason

associated with the common good which requires the deportation of a foreign national spouse. They accept that the judgment of

Clark J. in Alli [2010] 4 I.R. 45 is against them but they contend that her judgment in S v. The Minister [2011] IEHC 417 leaves open

the possibility that a less restrictive process should be considered depending on the case. The Court does not accept the applicants’

argument. It is clear that the circumstances of the S case were radically different to the present case. Mrs S was a Nigerian citizen

who obtained leave to remain in Ireland after giving birth to an Irish citizen child in 2000, fathered by a Nigerian national. Two years

later she met Mr S, also a Nigerian national, who had been refused asylum. They married in early 2003 and shortly afterwards Mr S

was deported. The Minister was not informed of his relationship with Mrs S prior to the deportation or of the impending birth of their

child who would be entitled to Irish citizenship.

56. In July 2003 Mrs S gave birth to their Irish citizen child. In 2005 she returned to Nigeria and found Mr S in a condition of

homelessness and abject poverty. She found accommodation for him and after returning to Ireland she continued to support him. She

returned each year to visit him. In 2008 he sought a join-spouse visa through the Irish Embassy in Abuja. He was advised that he

would have to first seek revocation of the extant deportation order. Extensive submissions were made to the Minister with regard to

the situation of the family including the mental health problems experienced by Mrs S who was operating as a single parent in Ireland.

It was submitted that she would be in a position to support her husband financially if he was granted a visa to enter the State. It

was the Minister’s refusal to revoke the deportation order in S which came before Clark J. and it was in those very specific

circumstances that she made comments on the failure to consider a less restrictive process than deportation such as the grant of a

visa subject to conditions. Her comments have no bearing whatever on the assessment of the proportionality of a decision to deport

a foreign national who is currently in Ireland.

57. Finally, the applicants contend that Article 41 should not be so weakly interpreted as to sanction reverse discrimination under EU

law. Ms Healy is severely disadvantaged, it is argued, because she is an Irish citizen and not a national of another Member State.

Hogan J. granted leave on this point in O’Leary v. The Minister [2011] IEHC 256. However, the reliefs sought were refused by Cooke

J. in O’Leary v. The Minister [2012] IEHC 80 and no reason has been put before this Court which would warrant a departure from that

judgment. Leave is therefore refused on ground 20.

Article 8 ECHR and Proportionality

58. Ground 22 sets out the contention that the Minister did not properly consider their rights under Article 8 and he failed to apply

Article 8(2) properly. This overlaps with grounds 19 and 23 which set out the contention that the Minister’s decision to make a

deportation order and his subsequent refusal to revoke the order were disproportionate and were neither necessary nor properly

justified. In their oral submissions to the Court the applicants took issue with the “legitimate aims” of the State identified by the

Minister and the reasons given as to why the deportation is “necessary in a democratic society” and they contend that the absence

of a less restrictive process is not determinative of the latter issue. Insofar as they challenge the finding that there were no

insurmountable obstacles to the establishment of family life in Albania, they rely on Huang v. Secretary of State for the Home

Department [2007] 2 W.L.R. 581; VW (Uganda); AB (Somalia) v. Secretary of State for the Home Department [2009] EWCA Civ 5

and S v. The Minister (Unreported, High Court, Clark J., 13th October 2011).

59. The respondents contend that the law in relation to Article 8 ECHR is well settled. They rely on Agbonlahor v. The Minister [2007]

4 I.R. 309; R (Mahmood) v. Secretary of State for the Home Department [2001] 1 W.L.R. 840; R (Razgar) v. Secretary of State for

the Home Department [2004] 2 A.C. 368; Abdulaziz, Cabales and Balkandali v. United Kingdom (1985) 7 EHRR 471; N v. Secretary of

State for the Home Department [2005] 2 A.C. 296; B.I.S. (Sanni) v. The Minister [2007] IEHC 398; Alli (a minor) & Others v. The

Minister [2010] 4 I.R. 45; Bouchelkia v. France (1997) 25 EHRR 686 and Boujlifa v. France (2000) 30 EHRR 419.

60. The Court considers that the applicants are attempting to re-open an argument as to the circumstances in which Article 8 ECHR

will operate so as to prohibit the deportation of the foreign national spouse of an Irish citizen, which has been definitely determined in

a large number of cases. The applicants have not identified any factor which would distinguish them from the volume of cases in

which that issue has been decided. It is not open to them to re-argue a point which has so clearly been decided without any point of

distinction. The Strasbourg Court held in Abdulaziz at § 67, with respect to Article 8, that “this is an area in which the Contracting

Parties enjoy a wide margin of appreciation in determining the steps to the taken to ensure compliance with the Convention with due

regard to the needs and resources of the community and of individuals”. It further stated at § 68-69 of that judgment that:-

“68. […] The duty imposed by Article 8 cannot be considered as extending to a general obligation on the part of a

Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept

the non-national spouses for settlement in that country.

In the present case, the applicants have not shown that there were obstacles to establishing family life in their own or

their husbands' home countries or that there were special reasons why that could not be expected of them.

In addition, at the time of their marriage

(i) Mrs Abdulaziz knew that her husband had been admitted to the United Kingdom for a limited period as a visitor

only and that it would be necessary for him to make an application to remain permanently, and she could have

known, in the light of draft provisions already published (see paragraph 20 above), that this would probably be

refused;

(ii) Mrs Balkandali must have been aware that her husband's leave to remain temporarily as a student had already

expired, that his residence in the United Kingdom was therefore unlawful and that under the 1980 Rules, which

were then in force, his acceptance for settlement could not be expected.

In the case of Mrs Cabales, who had never cohabited with Mr Cabales in the United Kingdom, she should have known

that he would require leave to enter and that under the rules then in force this would be refused.

69. There was accordingly no "lack of respect" for family life and, hence, no breach of Article 8 taken alone.”

61. This approach was echoed by Clark J. in Alli where she held at paragraph 50:

“It is clear from the case law that the European Court of Human Rights commences its assessment from the

perspective that contracting states are not obliged to respect the choice of residence of a family and, wherever

appropriate to the facts, that knowledge on the part of one spouse at the time of marriage that the right of residence

of the other spouse was precarious is a consideration.”

62. A similar approach was adopted by Feeney J. in Agbonlahor where he stated:-

“It is also of significance that in considering the issue of family life that it is appropriate to have regard to the lawfulness

and length of stay as being significant factors in seeking to identify the exceptional cases where a state might be

prevented from exercising the state’s unquestioned entitlement to impose immigration control.”

63. Likewise in B.I.S., Dunne J. reviewed a series of Strasbourg Article 8 immigration decisions and found that “the issue as to

whether Article 8 rights have been engaged depend[s]on the facts and circumstances of each and every case.” She held that, as

had been the case in Agbonlahor, the applicant in that case was in truth asserting a choice of the State in which he would like to

reside, instead of a disproportionate interference by the State with his Article 8 rights. Like Feeney J. in Agbonlahor, she too adopted

the finding of Lord Bingham in Razgar that “Decisions taken pursuant to the lawful operation of immigration control will be

proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis.” This is not to apply an

“exceptionality” principle, as was held by Clark J. in Alli – it is merely to recognise that the Strasbourg Court has held that in order for

a deportation to fall foul of Article 8, insurmountable obstacles must be shown to the couple enjoying family life in the country of

origin of the proposed deportee.

64. With respect to the circumstances in which family life was created for the present applicants, it cannot be overlooked that the

applicants in this case married after a deportation order had been made and notified to Mr Troci. It is clear from Ms Healy’s personal

statement to the Minister in support of the revocation application that she had been made aware of Mr Troci’s precarious immigration

status before she entered into a relationship with him. Moreover there is no doubt that both were aware when they married that he

had no entitlement to remain in the State. Thus Ms Healy must have been aware, when she married Mr Troci, of the possibility that

he might be required to leave Ireland and that they might have to live in Albania. No factor particular to the applicants has been

identified which would support the proposition that it is unreasonable to expect Ms Healy to follow Mr Troci to Albania if she wishes to

maintain family life with him. Ms Healy has been learning Albanian and has a pre-existing relationship with her Albanian in-laws with

whom she says she has frequently conversed over the internet. Both she and Mr Troci are young and, it appears, in good health.

There are no children of the marriage who would be uprooted if their mother decided to leave the State to maintain family life

elsewhere. It is clear that the Minister was aware of all relevant facts and circumstances pertaining to the applicants and that he

weighed them in the balance with the indisputable rights and obligations of the State which have been repeatedly acknowledged by

the European Court of Human Rights. The applicants have not pointed to any relevant issue which was disregarded or on which undue

weight was placed. Leave is refused on grounds 19, 22 and 23.

IV. MOTION TO AMEND

65. The first day of the leave hearing in this case coincided with the grant of leave in Sivsivadze & Others v. The Minister [2011]

IEHC 317 to seek a declaration that ss. 3(1) and 3(11) of the Immigration Act 1999 are unconstitutional and incompatible with Article

8 of the ECHR insofar as a deportation order has potentially life long exclusionary effect. The fourth applicant in the Sivsivadze case,

Mr Arabuli, was a Georgian national with a particularly chequered immigration history. He had made multiple asylum applications in

different Member States using different aliases and false documents. A deportation order was made against him. Thereafter he

entered a relationship with Ms Sivsivadze, also a Georgian national, who had humanitarian leave to remain in Ireland as she had been

grievously abused by a family member in Georgia, and she gave birth to their daughter. In 2008 Mr Arabuli applied for revocation of

the deportation order which was refused. The couple married the following month and a second daughter was born to the couple one

month later. Mr Arabuli again applied for revocation and a further negative decision issued. He was eventually deported. The family

then brought proceedings challenging the final refusal to revoke. In his decision of 26th April 2012, Hogan J. held:

“It would be difficult to say that the Minister could not reasonably have decided to deport Mr. Arabuli in view of his

decidedly chequered immigration history. […] The real point here is whether the Minister is entitled to insist that the

deportation order should have indefinite effect.”

66. On the day after leave was granted in Sivsivadze, the applicants in this case signalled their intention to bring a motion to amend

their statement of grounds to seek additional grounds and reliefs arising from Sivsivadze. A motion to amend was filed on 10th May

2012 and was moved before this Court on 19th July 2012, the third day of the leave hearing. The applicants’ statement of grounds

does seek declarations that s. 3(1) and / or s. 3(11) of the Immigration Act 1999 are invalid having regard to the provisions of the

Constitution and are incompatible with the ECHR; however, none of the grounds related to the declarations sought. They sought to

remedy that situation by adding to the reliefs sought a declaration that s. 3(11) does not satisfy the requirements of Article 15.2.1˚

of the Constitution, and five additional grounds relating to the proportionality of a life-long deportation order. Needless to say, a

substantial extension of time is required.

67. The substantive hearing in Sivsivadze was fast-tracked and on 21st June 2012 Kearns P. refused the reliefs sought. The

applicants have sought to argue that the judgment of Kearns P., at least with regard to s. 3(1), is specific to the facts of the

Sivsivadze family whose situation can be distinguished on the basis of Mr Arabuli’s lack of candour and mala fides. This Court is

satisfied, however, that the judgment of Kearns P. is not specific to the facts relating to the Sivsivadze family and that it also

determines the issues in the within case. Kearns P. certainly had regard to the staggering extent of Mr Arabuli’s deceptions and he

found that having regard to his particular history and the need to maintain effective immigration controls, the applicants could not

contend that the statutory provision under which Mr Arabuli was deported operated disproportionately. Kearns P. did not stop there,

however; he went on consider the proportionality of indefinite exclusion in a general sense, divorced from the specific facts of the

Sivsivadze case. This Court is satisfied that the judgment of the President in that regard also determines the issues raised by way of

the motion to amend in this case. No reason has been put before this Court to depart from the views expressed by the President.

With respect to the challenge to s. 3(11), the applicants have effectively conceded that the judgment of Kearns P. was not specific

to the facts of that case. Leave to amend the statement of grounds is therefore refused and so, the question of an extension of time

does not arise.

CONCLUSION

68. For the foregoing reasons, and extension of time will be granted in relation to the subsidiary protection decision and leave will be

granted on grounds 4, 5 and 11(a), (b) and (c) to seek reliefs 1, 5, 6, 7, 9, 14, 15, 19 and 20 with reference only to the

subsidiary protection decision.

ADDENDUM – GROUND 2

69. Ground 2 of the applicants’ statement of grounds pleads that the Minister failed to properly cooperate with the first named

applicant pursuant to Article 4(1) of Directive 2004/38/EC. This is a matter in which Hogan J. made a preliminary reference to the

Court of Justice (CJEU) in M.M. v. The Minister (Case C-277/11). The CJEU delivered judgment in that case on 22nd November 2012.

It is clear from the M.M. judgment that the specific ground pleaded by the applicants in their statement of grounds has been rejected

– the CJEU held at paragraph 60 of its judgment that Article 4(1) of the Directive does not require the Minister, before adopting a

negative subsidiary protection decision, to supply the applicant with the elements on which he intends to base his decision and to

seek the applicant’s observations in that regard. The CJEU went on however to stress that in a two-stage system such as that

applicable in Ireland, the right to be heard must be guaranteed at both the asylum stage and at the subsidiary protection stage. The

CJEU held that it is for the national court to ensure observance of the right to be heard in the sense that the applicant must be able

to make known his views before the adoption of any decision.

70. This Court afforded the applicants a period of approximately two weeks within which to address the net issue of the significance

of that judgment on ground 2 by way of written submissions. The Court has considered the additional submissions of both parties. The

Court is of the view that the applicants’ additional submissions are not contained within the grounds set out in the statement of

grounds. This would require a motion to amend the statement of grounds. The applicants have not brought a motion to amend their

statement of grounds to rely on the ‘right to be heard’ aspect of the M.M. judgment. Moreover, should they have done so, they would

have faced considerable obstacles on grounds of delay. The Court is therefore satisfied that leave should be refused on ground 2.