The Supreme Court has agreed to hear appeals by the Minister for Justice over significant findings concerning his obligations to consider the marital family rights of Irish citizens and their non-EEA spouses before deciding whether to permit them to enter or remain in the State.
The Minister is appealing rulings of the Court of Appeal (COA), which found that when considering applications to enter or remain, he must first consider the marital family rights of the Irish citizen spouse under Article 41 of the Constitution and, if necessary, then consider the family life rights of both spouses under the European Convention on Human Rights (ECHR).
The appeals raise issues of general public importance concerning the proper approach to be taken by the Minister is his consideration, the Supreme Court said.
In a recently published determination, the Chief Justice, Mr Justice Frank Clarke, Ms Justice Elizabeth Dunne and Ms Justice Iseult O'Malley, said there have been inconsistent decisions by the High Court on the Minister's approach and clarification of the matter is in the public interest.
Last October, the COA overturned the Minister’s refusals to allow the non-Irish national spouses of three Irish citizens either enter or remain with them here. It found the refusals were “legally incorrect” because the Minister failed to proper consider the marital family rights of the Irish citizen spouses under Article 41.
The appeals concerned three High Court decisions in three separate cases and were heard together as they all involved Irish citizens lawfully married to Nigerian spouses and raised similar issues.
Separated
Although one of the couples has since separated, with the effect the Irish citizen spouse is no longer seeking permission to have his Nigerian wife join him in the State, the Supreme Court will consider the issues raised in their case because they are similar to the others.
The cases involve consideration of the appropriate approach by an immigration decision maker when the Irish citizen spouse relied on rights under the Constitution, particularly Article 41, and both spouses relied on family life rights under Article 8 of the ECHR.
In her COA decision, Ms Justice Mary Finlay Geoghegan said, while an Irish citizen has no automatic constitutional right to co-habit with their non-national spouse here, the appellants, as a lawfully married couple and family within the meaning of Article 41, and the Irish citizen spouse as an Irish citizen, have constitutionally protected rights to have the Minister decide their applications with due regard to certain factors.
Those factors included the State’s guarantee under Article 41 to protect the family, that the couple are a family with rights including to cohabit and to choose to live here and relevant considerations in accordance with the State’s interests in the common good.
If, having considered the constitutional rights, the Minister decides to refuse permission, he must then consider the claims under Section 3 of the 2003 ECHR Act by reference to Article 8 ECHR.
Mr Justice Gerard Hogan, concurring, stressed the Constitution "has primacy as far as protection of fundamental rights are concerned".
