The High Court dismissed a judicial review challenge by an anonymised couple to the Minister for Justice and Equality’s refusal to revoke a deportation order. The court held that the Minister had considered the couple’s rights under Article 41 of the Constitution and that no specific unlawfulness in the decision had been established.
The case concerned the first applicant, who had been ordered deported in 2008 after his asylum and subsidiary protection applications were refused. He did not report to immigration authorities as required and remained an evader until July 2015. In January 2014, he asked the Minister to revoke the order. The Minister refused in July 2015.
The applicants had entered a religious marriage in 2006, which the judgment says was not legally binding, and later married in a civil ceremony in February 2015. The second applicant, who had been granted permission to remain in Ireland and became an Irish citizen in 2013, was pregnant when the revocation application was being considered. Their child was born in December 2015. The first applicant was deported in September 2015, after the High Court had refused an interim injunction preventing deportation while the proceedings were pending.
The applicants argued that the Minister’s proportionality assessment failed to recognise the nature and strength of their family rights. They relied on earlier judgments concerning Irish citizens and non-Irish spouses. The court said a married couple, one of whom is an Irish citizen, should receive consideration of their status under Article 41, but marriage does not itself create a right to remain or prevent deportation. It said the weight of any rights depends on the circumstances, including the person’s immigration history and the timing of the relationship.
The court also rejected the argument that the Minister had applied an invalid “insurmountable obstacles” test. It said the question was one factor in an overall assessment, not a pass-or-fail test. The court found no error in the Minister’s proportionality reasoning and held that the family reunification policy relied on by the applicants did not give the first applicant a legal entitlement to rely on it in a revocation application.
The court dismissed the application. It adjourned the proceedings to a date to be fixed so the applicants could apply for leave to appeal, provided they first gave written notice of any question of law and supporting submissions.