Ms Justice Baker has said the Minister for Justice should have assessed the impact of a proposed deportation on MK’s constitutional and European Convention rights before deciding his application for leave to remain and making a deportation order.
In a judgment delivered on 24 November 2022, Justice Baker agreed with the other members of the Supreme Court that the Minister had to carry out a proportionality analysis. She also agreed that the Court of Appeal’s test in C.I. v Minister for Justice, Equality & Law Reform was incorrect.
The appeal concerned the Minister’s decision on MK’s application under section 49 of the International Protection Act 2015. Justice Baker said the decision-maker had treated MK’s private and family rights as not “engaged” because any interference was not expected to have consequences grave enough to trigger Article 8 of the European Convention on Human Rights. In her view, that screening approach meant the Minister did not go on to assess the nature and weight of those rights against the State’s interests in immigration control.
Justice Baker said the decision-maker should first determine whether Article 8 rights existed and fell for consideration, then assess their elements and weight. That second stage required examining the applicant’s individual circumstances and balancing them against the State’s interests. She noted that MK had come to Ireland as a minor and spent his formative teenage years in schooling and later work in the State, but said it was not possible to tell how those circumstances had been weighed.
The judgment is Justice Baker’s separate opinion on the appropriate remedy. She agreed with Justice MacMenamin that the Court should make an order of certiorari because the Minister’s decision was not in accordance with law. She disagreed with the majority’s approach, arguing that a court reviewing legality should not presume the decision would have been the same if the proper process had been followed.
Justice Baker would have allowed the appeal and quashed the decision so the case could return to the Minister for a legally sound reconsideration. The source is her judgment only; it does not set out the Court’s complete operative order.