The Court of Appeal quashed a 2015 decision refusing to revoke a deportation order against A.B.M., finding that the Minister’s assessment of the constitutional rights of A.B.M. and his Irish citizen wife, B.A., was not in accordance with law.
The court did not set aside the deportation order or require the Minister to reconsider the application that had been refused. Instead, it said the couple may make a fresh application for revocation and for a visa allowing A.B.M. to enter and reside in Ireland. Any such application must be considered under the legal principles in this judgment and the judgments delivered the same day in Gorry, and on the current facts concerning the family and relevant State interests.
A.B.M.’s deportation in September 2015 remains valid, the court said. His marriage to B.A. did not itself change the validity of the deportation order made on 18 June 2008. The court also said there is no constitutionally protected right entitling him to reside in Ireland solely as the spouse of an Irish citizen.
B.A., who was born in Nigeria, became an Irish citizen in 2013. A.B.M. had applied for asylum in 2006; that and later applications were refused, and the deportation order was made in 2008. The couple married in Ireland in February 2015. The Minister refused to revoke the order in July 2015, and A.B.M. was deported two months later.
The High Court refused the couple’s judicial review application in December 2016. On appeal, the Court of Appeal held that the Minister’s constitutional assessment had treated the obligations under the Constitution and Article 8 of the European Convention on Human Rights as if they were the same. The court said the State’s obligations where an Irish citizen is lawfully married to a non-national are of a different order from those arising under Article 8.
The court agreed with the High Court’s approach to the “insurmountable obstacles” test under Article 8 and found no error in how it was applied in the Minister’s assessment. It did not decide a separate appeal ground about the High Court’s treatment of earlier High Court decisions, because the substantive issues resolved the appeal.