The High Court has quashed a decision refusing to revoke a deportation order against a Nigerian woman, finding that the Minister’s assessment failed to apply the correct legal tests to her marriage to an Irish citizen and his medical circumstances.
In a judgment delivered on 30 January 2014, Mr Justice Colm Mac Eochaidh ruled on the couple’s judicial review challenge to the Minister for Justice and Equality’s decision of 20 July 2012. He held that the Minister had failed to properly consider whether it was reasonable to expect the husband to move to Nigeria, and had not adequately assessed the medical information submitted about his heart condition.
The woman had been refused asylum and made subject to a deportation order in June 2005. She lived in Ireland without permission for four years. The couple met in 2006 and married in Nigeria in September 2009, after they said they had been advised by the Immigration Office to marry there and then apply for a visa. A first request to revoke the deportation order was refused in February 2010.
The husband later suffered a heart attack and received treatment including angioplasty and a coronary stent. The couple’s subsequent revocation application relied in part on his health and the difficulty he said he would face living in Nigeria. The Minister’s assessment referred to one hospital report but not to a note from the husband’s family doctor, which said his cardiac condition meant he would be ill-advised to live there. The judge said officials should have investigated the apparent gap in the file, particularly after the wife’s reminder said medical reports had been sent.
The court held that the decision wrongly treated “insurmountable obstacles” as the required test for whether the husband should join his wife in Nigeria. The question, the judge said, was whether it was reasonable to expect him to do so. He also found the Minister had not clearly determined the nature and seriousness of the husband’s condition or carefully considered whether treatment would be available to him there.
The judge separately found that the assessment wrongly began by denying that the couple had constitutional rights to reside together in Ireland. He said an Irish citizen married to a non-Irish citizen has a prima facie constitutional right to reside in Ireland with their spouse, subject to lawful regulation and proportionality. That right is not automatic or absolute.
The Minister had also argued that the woman’s immigration history should prevent the couple from obtaining relief. The judge rejected that argument, noting the circumstances of the case and that the husband was not responsible for wrongdoing.
The court granted an order of certiorari quashing the Minister’s 20 July 2012 decision and declared that the couple’s legal and constitutional rights had been infringed by the failure to acknowledge, weigh and consider them. The judgment did not itself revoke the deportation order or decide the outcome of any fresh assessment.