As important judgement of the Court of Appeal was delivered on the 27th October 2017, which may have a far reaching effect on the rights of Irish citizens to have their Non EEA spouse’s reside in the State with them.
The Court of Appeal has considered the right of an Irish citizen to have their non-national spouse reside with them in Ireland in the case of Gorry v Minister for Justice and Equality . The Court concluded that an Irish citizen does not have an absolute right to have their spouse reside with them, and acknowledged “the right to control aliens, their entry into the State, their departure, and their activities within the State, is part of the inherent power of the State as a sovereign State.” However the Court emphasised the duty of the Minister, on behalf of the State, to thoroughly consider the rights of the couple as a family within the meaning of the Irish Constitution and the rights of the individual as a citizen and to balance such rights against the interests of the State to determine whether an individual may reside in Ireland with their Irish spouse.
The appellants were a lawfully married couple. Mrs. Gorry’s application for asylum was refused and she was then subject to a deportation order. She did not leave Ireland and subsequently married Mr. Gorry. Following the marriage, she applied for a revocation of her deportation order on the basis of her husband’s health as he had suffered a heart attack three days after his return to Ireland following his marriage in Nigeria. This application was refused. The Court of Appeal found that the approach applied by the Minister in considering the application of the appellants was inappropriate.
The Court described the approach the Minister ought to take while determining whether a non-national spouse may reside in Ireland. Firstly, the Minister should establish the relevant constitutional rights of a lawfully married couple, the Court emphasised that these are “not dependent on other factual issues such as the circumstances or length of the marriage or immigration record of the non-national, once married the couple are a family within the meaning of article 41 and are entitled to all the rights identified.” Then if required the Minister may consider any responsibilities within the European Convention on Human Rights Act 2003. The second aspect of the test is that the Minister may consider the interests of the State, such as the common good and control of immigration. During this aspect of the test the State may consider factors such as duration of marriage, “to balance in a fair and just manner the rights of the applicants and those of the State, and reach a reasonable and proportionate decision.” The Court suggested that factors such as criminality or overburdening of the social welfare system may result in the State placing conditions on residence permits of non-nationals.
The Court stipulated that as a lawfully married couple the appellants have the constitutional right to have their application determined by the Minister with regards to (i) the constitutional right of protection of the family as per article 41.1.2, (ii) that the lawfully married couple are a family within the context of the Constitution “a fundamental unit possessing inalienable and imprescriptible rights which rights include a right to cohabit which is also an individual right of the citizen spouse which the State must, as far as practicable, defend and vindicate,” (iii) a family has a right to make a decision to live in Ireland and the State must protect such, as per article 41.1, (iii) the “birth right” of an Irish citizen to reside in Ireland.
In confirming that decision of the High Court that the decision to deport Mr Gory’s spouse was unlawful, the Court of Appeal stated as follows:
“[T]he Constitution… in practice, impose an obligation on the State (acting through the Minister) to permit a non-national reside with his or her citizen spouse in the State, in that sense that a reasonable and proportionate decision taken by the Minister, having regard to the rights and obligations set out above, could only lead to one decision.”
This is an important decision in clarifying by the Court of Appeal the very strong rights of family reunification for Irish citizens under the Irish Constitution. The Court of Appeal has put the onus on the Minister for Justice to justify why he is making the decision not grant a residence permission to a spouse of an Irish citizen, as opposed to putting the onus on the applicant to plead their case to remain.
While the decision did not provide an express right for citizens of Ireland to reside with their non-national spouses in Ireland, but however it does emphasise the obligation of the State to consider in each individual case the circumstances and provides a high threshold for the State interests to overcome to refuse residence for a non-national spouse.
We believe that this decision should have a positive effect for many irish citizens who are currently in the process of applying for visas and residence permission for their non EEA national spouses.
Berkeley Solicitors Team