Stephen Kirwan of our Immigration and International law team analyses the recent decisions of Mr Justice Mc Kechnie and Mr Justice O’Donnell the Supreme Court in Gorry vs Minister for Justice and Equality and its ultimate effect on decision making in an immigration context for effected individuals.
The Supreme Court in its recent ruling in Gorry v Minister for Justice and Equality, a case taken by the Immigration Team in KOD Lyons, has comprehensively considered how family rights granted to individuals under the Constitution and the European Convention of Human Rights are to be properly treated in the context of immigration decisions.
The judgment in Gorry related to a number of connected appeals (Gorry, Forde and ABM) which sought to establish what the appropriate approach is required of a decision maker in making an immigration decision involving a non-citizen spouse of an Irish citizen. Each of the cases concerned non-citizen spouses of Irish nationals in respect of whom the Minister for Justice had made a deportation order, which the Minister refused to revoke to enable the couples to reside together in the State.
Key Issues in the Supreme Court Decision:
The first key issue addressed by the judgments of Mr Justice Mc Kechnie and Mr Justice O’Donnell is the nature and extent of the protection afforded by Article 41 of the Constitution on the one hand, and Article 8 ECHR on the other.
The second key issue addressed in both judgments is the extent to which a relevant immigration decision involving an Irish citizen spouse and a non-citizen spouse decision must contain separate analyses of an applicant’s rights under Article 41 of the Constitution and Article 8 ECHR.
Textual/Contextual analysis of Article 41of the Irish Constitution in determining nature obligations imposed on a decision maker
A significant argument in the case related to the wording of Article 41 of the Constitution and to the extent and the nature of the obligations imposed on a decision maker by its wording.
Mr Justice Mc Kechnie considered the emphatic nature of the words and phrases contained in Article 41. It was noted that phrases and concepts such as ‘inalienable, imprescriptible’ rights of the family, the family being a ‘moral institution’ and the authority of the family being antecedent and superior of positive law’ were emphatic in nature.
It was further held that the strength of the language employed in Article 41, coupled with the number of occasions they were used, were of great significance in interpreting the strength of the obligations on a decision maker even if the words used could not necessarily be easily defined particularly given the fact that no definition of these terms was proffered in Article 41.1.1.
Mr Justice McKechnie further elaborated that as the family is the considered “fundamental unit group of society” this would seem to entail something more than protection merely for the legal status of marriage but was something more significant.
The Court adopted as correct the approach set out by Hogan J. in FH v Staunton  IEHC 533 wherein he noted that the strong language used in Article 41 was used to signify and emphasise “the importance of those rights” in the constitutional structure. This ‘contextual analysis’ of the language appearing in Article 41 allowed the Courts to justify an expansive reading of protections afforded to Irish Citizen and their non-citizen spouses.
A Right to Co-Habitation Pursuant to Article 41
Having accepted the importance of the above rights the Court were then asked to turn to analyse and determine what rights were in fact protected by Article 41 of the Constitution and the extent to which these rights were deemed to apply to decision-making in the appropriate cases. A major question for the Court was whether Article 41 granted a married couple where one of the parties was a non-Irish citizen a prima facie right to co-habit together in the jurisdiction together or whether this right was more limited in nature.
The Minister argued that the only concern of Article 41 is to preserve the decision-making primacy of the family over internal matters. In its reasoning both Mr Justice Mc Kechnie and Mr Justice O’Donnell determined while the decision-making primacy of the family is certainly is an important facet of the protection afforded by Article 41 it was by no means limited to this.
In the opinion of Mr Justice Mc Kechnie Article 41.1.1 recognised that the Family possesses certain, albeit unspecified, fundamental rights. In addition, it was recognised that as Article 41.1.2 imposed a duty on the State to protect the family “in its constitution and authority”. As a result it was determined that the unspecified rights referred to in Article 41.1.1 must be rights relating to the “constitution and authority” of the Family.’
In the opinion of the Court a right of cohabitation could be regarded as one of the rights of the material family protection by Article 41 and that a right to live together ultimately flowed from the protection of the guarantee to protect the family “in its constitution and authority”. He interpreted this as meaning the capacity of the unit to make decisions such as where to live.
Considerations which must be taken into account by a decision maker in properly recognising family rights involved
Despite the above the judgment makes clear that it is wholly incorrect to speak of a prima facie right of an Irish citizen to reside in Ireland with their non-national spouse.
However, the decision maker is still obliged to properly recognise family rights involved. In ultimately endorsing the ruling of Ms Justice Finlay Geoghegan Court of Appeal he noted that it is incumbent on a decision maker to consider:
(i)the guarantee given by the State in Article 41.1.2 to protect the family in its constitution and authority;
(ii) a recognition that [they] are a family, a fundamental unit group of our society possessing inalienable and imprescriptible rights which include a right to cohabit which is also an individual right to the citizen spouse which the State must, as far as practicable, defend and vindicate (Article 41.1 and Article 40.3.1°);
(iii) a recognition that the decision that the family should live in Ireland is a decision which they have a right to take and which the State has guaranteed in Article 41.1 to protect; and
(iv) a recognition of the right of the Irish citizen to live at all times in Ireland as part of what Article 2 refers to as “birth right … to be part of the Irish nation” and the absence of any right of the State (absent international obligations which do not apply) to limit that right.”
Role of Minster in Assessing its Obligations under Article 41
Mr Justice Mc Kechnie outlines what he believes to be constitutional obligations on a decision maker. He notes that:
‘the constitutional obligations or duties on the Minister are to correctly identify and then appropriately weigh, the constitutional rights of the Applicants when conducting the balancing exercise which is called for when considering an application to revoke a deportation order, or to grant a visa to enter and reside in the State.’
It is further noted that the familial rights recognised above are a starting point and are to be weighed in the applicants’ favour but that these rights are non-absolute and must be counter-balanced by legitimate countervailing interests of the State.
Mr Justice Mc Kechnie considered it unwise to try to define this exercise by reference to a particular test or formula nor was it necessary to “work out the full length and breadth of the scope of protection provided by each provision”.
He further commented that it would be “foolish to attempt to enumerate all of the matters the Minister may properly have regard to in a given case” and that instead of giving an exhaustive set of factors and the appropriate weight to be attached to those factors in a given case given that the weight given to any factor (such as, for example the circumstances of the marriage or the underlying factors of the relationship such as duration of the marriage and the length the relationship had been established) will vary in each case.
In the present case the Minster appeared to have focused mainly or solely on Article 8 European Convention of Human Rights but without any consideration of the strength of the Constitutional protections which were in fact stronger and that this was an incorrect starting point.
In Mr Justice Mc Kechnie’ s view the Minister’s erred in simply applying an ECHR ‘style’ analysis directly to the Constitutional considerations in the case, rather than treating them as “distinct exercises” and understanding that point contained “differing points and with the factors carrying different weight under each”.
Article 8 ECHR- Dealing with the Insurmountable Obstacles Test
Mr Justice Mc Kechnie then turned to deal with the appropriate test for the consideration of rights accruing to couples under Article 8 of the European Convention. He re-iterated that the “insurmountable obstacles” test as summarised in previous decisions was the correct legal test to be applied. 
He further endorses the views of Ms Justice Finlay Geoghegan who noted that in considering whether there are “insurmountable obstacles” in a given case it is incumbent on a decision maker to consider the practical ramifications for the family effected. More importantly it is noted that a decision maker must not be overly literal in determining if there are insurmountable obstacles in a given case in order to avoid unjust results and in setting “the bar far higher than is reflected by the substance of the decisions of the ECHR” 
Continuing Uncertainty- Mr Justice O’Donnell’s views on Ministerial Decision Making
Mr Justice O’Donnell also issued a judgment concurring, agreeing a very broad sense with Mr Justice Mc Kechnie’s ruling on behalf of the majority. He does however differ in quite significant respects with the majority and in particular in regards to their guidelines on how a decision maker should conduct their analysis. Mr Justice O’Donnell notes that while this difference of analysis and approach is not decisive in the present case he is of the view that it is of importance in developing the future route of the applicability of Article 41 of the Constitution. Mr Justice O’Donnell:
(i) disagrees with Mr Justice Mc Kechnie that there is a ‘right to co-habitation’ arising under Article 41 of the Constitution but is something that a decision is required to have regard to in its decision making and to respect for any form of durable relationship.
(ii)notes that the conclusion of Mr Justice Mc Kechnie’s approach in essentially recognising an unenumerated right to co-habitation may be to unintentionally give rise to the very danger that a strong presumption in favour of marital and family residence in Ireland which must be overcome by the Minister before a decision can be made on deportation and which the decision-maker may struggle to overcome in particular cases.
(iii) notes that by interpreting the Constitution as affording certain unspecified unenumerated rights the highest level of protection feasible in a modern society, however well-intentioned, discounts the clear wording of Article 41 and neglects the fact that Article 41 is not expansive or unlimited in its scope but rather specific and derived from the text and the Constitution itself.
(iv)considers that the practical uncertainties in terms of its ultimate guidance for a ‘balancing exercise’ proposed by the majority and that this could inevitably lead to decisions that might be damaging to the State’s legitimate interests. The Minister here is told the way in which the decision is made is wrong but is given no guidance as to the appropriate weight to be placed on various factors and in the absence of such guidance any negative decision will ultimately be open to challenge via the Court process which is not necessarily desirable in creating litigation.
(v)notes that it not normally enough to say that, while there is an interference with rights, the common good or the integrity of the immigration or social welfare systems are valid countervailing considerations. Instead he notes that the proportionality test, which applies with particular rigour in those cases of rights deemed worthy of the highest possible protection as here, usually requires not only that a legitimate countervailing interest be identified but also that it be established that the restriction of the right is no more than is strictly necessary to achieve that object.
(vi) finds that a refusal to revoke a deportation order, after appropriate consideration of the facts and circumstances, is not invalid merely because it affects the spouses’ desire to cohabit in Ireland and it would be more difficult and burdensome to live together in another country.
(vii) finds that the Minister required to have regard in an such case to:
(a) The right of an Irish citizen to reside in Ireland;
(b) The right of an Irish citizen to marry and found a family;
(c) The obligation on the State to guard with special care the institution of Marriage;
(d) The fact that cohabitation – the capacity to live together – is a natural incident of marriage and the Family and that deportation will prevent cohabitation in Ireland and may make it difficult, burdensome, or even impossible anywhere else for so long as the deportation order remains in place.
The diverging approaches of the concurring judgments in Gorry ultimately leave a number of unanswered practical questions for decision makers dealing with decisions concerning the constitutional rights of Irish citizens and of their non-citizen spouses which will inevitably arise in further litigation.
Notwithstanding this it is ultimately clear that that decision makers are obliged to strongly consider the constitutional protections afforded to Irish citizens and their non-citizen spouses and that these rights cannot be disregarded without sufficient and detailed justification.
Both judgments provided an excellent and considered analysis into the guarantees protected by Article 41 of the Constitution and are clear in their view that these protections go further than those envisaged in Article 8 of the European Convention of Human Rights.
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