The Court of Appeal upheld an order quashing the Minister for Justice and Equality’s decision to refuse to revoke a deportation order against Mrs Gorry. It found that the Minister had not considered the constitutional rights of Mrs Gorry and her Irish citizen husband, Mr Gorry, in accordance with law. Because the couple had separated and Mr Gorry no longer sought to have his wife live with him in Ireland, the court did not remit the matter to the Minister for a fresh decision.
The appeal concerned the Minister’s 2012 refusal of Mrs Gorry’s application to revoke the deportation order. She had arrived in Ireland in 2005, applied for asylum under a different name, and was refused. A deportation order was made that year. The couple, who met in Ireland in 2006, married in Nigeria in September 2009. After an initial visa and revocation application was refused, Mrs Gorry renewed her request in 2010, relying primarily on her husband’s heart and kidney conditions and his difficulty relocating to Nigeria. The Minister refused the renewed application in 2012.
The High Court quashed that decision in 2014. It held, among other things, that the Minister had wrongly approached the couple’s constitutional rights and had applied an “insurmountable obstacles” test under Article 8 of the European Convention on Human Rights. The Minister appealed. The Court of Appeal heard the case alongside two appeals raising related issues, but addressed the Gorry appeal despite its having become moot because of the couple’s separation, given the importance of the legal questions.
The Court of Appeal rejected the High Court’s view that a married couple with one Irish citizen had a prima facie constitutional right to live in Ireland. It said the Constitution does not give an Irish citizen an automatic right to live in Ireland with a non-national spouse. But the couple had constitutional rights to have their application considered with due regard to the State’s duty to protect the family, their right to cohabit, their decision that the family should live in Ireland, and the citizen’s right to live in Ireland. The Minister could also weigh relevant interests of the State, including immigration control, in reaching a reasonable and proportionate decision.
The court said the Minister had applied essentially the same approach to the constitutional rights as to the State’s obligations under Article 8. That was unlawful: the constitutional assessment had a different starting point and required separate consideration. The court also held that the “insurmountable obstacles” test remains applicable when considering Article 8, if that assessment is necessary. It did not decide whether the test had been properly applied to the particular facts of the Gorry case.
Although it upheld the order of certiorari, the Court of Appeal directed that the matter not be returned to the Minister for reconsideration, because the proceedings had become moot after the couple separated.