The High Court rejected an Article 40 application seeking the release of a Nigerian woman detained ahead of a scheduled marriage to an Irish citizen, finding that her detention for deportation was lawful.
In a judgment delivered on 9 March 2012, Mr Justice Hogan said the woman had been detained under immigration law while arrangements were being made to deport her. She was arrested on 7 March and taken to Dublin Airport for a charter flight to Nigeria that was due to leave in the early hours of 8 March.
The woman’s asylum application had been rejected in 2008. A deportation order was made against her on 20 September 2011. It had not been challenged. In December 2011, her solicitor asked the Minister for Justice to revoke the order, citing her engagement to the Irish applicant and a planned registry-office wedding in Galway on 15 March 2012.
The judge directed an inquiry under Article 40.4.2 of the Constitution but declined to order that the woman be brought before him. He said the power to order production was discretionary and that, in the circumstances, such an order could have significantly delayed the planned deportation.
The applicants argued that deportation would frustrate their constitutional right to marry and that, once married, the woman could not lawfully be detained for deportation. Hogan J described the right to marry as fundamental, but said marriage to an Irish citizen did not automatically give a foreign national the right to reside in Ireland. Whether deportation would violate a couple’s constitutional rights depended on their circumstances.
The judge said the Minister had been told little beyond the couple’s intention to marry. The Minister lacked information about the length and nature of their relationship, their ties to Ireland, employment and finances, family responsibilities, and whether living in Nigeria would be realistic. Hogan J said that if a fresh application to revoke the order were made with relevant information, the Minister would have to balance immigration control against the couple’s rights. On the application before him, he concluded the woman was detained in accordance with law and rejected the request for her release.