The Court of Appeal has ruled that the Minister for Justice and Equality misapplied the constitutional protections for a married couple’s family life when considering an Irish citizen’s request for his Nigerian wife to live in Ireland.
The appeal was brought by the Minister against a 2014 High Court decision in proceedings brought by I. Gorry and Joseph Gorry. In a judgment delivered on 27 October 2017, Mr Justice Gerard Hogan agreed with a separate judgment by Ms Justice Finlay Geoghegan and said the Minister had erred in law when assessing the couple’s rights under Article 41 of the Constitution.
The judgment said the Minister’s 2012 file note treated Article 8 of the European Convention on Human Rights as directly applicable and as the main source of protection for family life, while treating the constitutional claim as supplementary. The court said constitutional rights should be considered first, and that Article 41 and Article 8 are not co-extensive.
The court described Article 41 as giving particular weight to the autonomy of a married couple, including their joint decision about where to live. It said the Minister must give considerable weight to that choice, while also balancing the State’s interests, including immigration control, crime prevention and protection of public services. The choice of residence is not an absolute entitlement: the assessment must be proportionate and take account of relevant circumstances. The court also said that marrying while the non-national spouse’s immigration status was precarious could be weighed in the balance, though it would not necessarily decide the issue by itself.
The judgment arose from the marriage of Mr Gorry, an Irish national, and Ms Gorry, a Nigerian citizen. They had decided to live in Ireland, and she sought residence permission. The judgment records that Mr Gorry had travelled to Nigeria and that, according to the applicants, he became very unwell after a 2010 trip and was medically advised against further travel there.
Although the court found legal errors in the Minister’s assessment, it did not order a fresh consideration. By the time of the appeal, the couple had separated after the proceedings began. The Court of Appeal agreed that, in those circumstances, it was no longer necessary to remit the matter to the Minister. The ruling therefore identified errors in the legal approach without directing a new decision on the residence request.