A Supreme Court justice has said a review of an Albanian migrant’s application to remain in Ireland failed to apply the correct approach to his rights under Article 8 of the European Convention on Human Rights. Justice John MacMenamin concluded that the decision-making process was unlawful, but dissented from the Court’s majority on the remedy.
The judgment, dated 24 November 2022, concerned an appeal by MK, who arrived in Ireland as an unaccompanied minor in 2016. He sought judicial review of a refusal of leave to remain and a subsequent deportation order. The appeal also raised a broader challenge to the administration of international protection procedures, which was addressed in a linked case, ASA v Minister for Justice and Equality.
MK’s international protection application was refused. In seeking leave to remain on humanitarian grounds, he relied on his schooling, work and social ties in Ireland. His first-instance assessment and a later review considered the first two questions in the framework often used in Article 8 cases, but in reverse order. They concluded that the consequences of removal were not grave enough to engage Article 8 and did not proceed to a proportionality assessment.
MacMenamin said the decisions treated the gravity of removal’s consequences as a threshold that had to be crossed before the applicant’s private and family life could be considered. He held that the approach, drawn from the Court of Appeal’s earlier decision in CI, did not reflect the European Court of Human Rights’ consistent case law on unsettled migrants. Where decision-makers use the five questions set out in the UK case Razgar, he said, they should address them in sequence and, if the first is answered yes, consider the remaining questions, including proportionality.
He said the decisions did not directly address whether removal would interfere with MK’s private and family life, and that the process denied him a proportionality assessment. He concluded that the Minister’s decision was not in accordance with law and that the High Court judgment upholding the approach had to be set aside.
The Court’s majority did not grant a remedy. MacMenamin recorded that the Chief Justice, Justice O’Malley and Justice Hogan considered that there had been no Article 8 breach warranting remittal, because the outcome would inevitably be the same under the correct principles. MacMenamin disagreed, saying the Court lacked current information about MK’s circumstances and would have quashed the Minister’s decisions. His judgment is a dissent on remedy; it does not establish that MK was entitled to remain in Ireland.