A.B.M. and B.A. -v- Minsiter for Justice and Equality [2017] IECA 280 (27 October 2017)

A.B.M. and B.A. -v- Minsiter for Justice and Equality [2017] IECA 280 (27 October 2017)

The Minister's assessment of the application to revoke the deportation order was not in accordance with law because it failed to properly consider the constitutional rights of the applicants as required by the Constitution, treating them as equivalent to ECHR rights, which is incorrect. However, there is no constitutional right entitling an Irish citizen to have a non-national spouse reside in Ireland.

Citation
[2017] IECA 280
Parties
Applicant/appellant: A. B. M.; Applicant/appellant: B. A.; Respondent: Minister for Justice and Equality
Jurisdiction
Ireland
Judgment Date
27 October 2017
Procedural Posture
Appeal / Judgment on Appeal From High Court Refusal of Certiorari
Outcome
Order of certiorari granted quashing the Minister's decision; no remittal for reconsideration; applicants may make a new application for revocation and visa.
Legal Topics
Deportation, Family Rights, Right to Reside, Article 41 Constitution, Article 8 ECHR, Judicial Review
Constitutional Law Immigration Law Human Rights Law Deportation Family Rights Right to Reside Article 41 Constitution Article 8 ECHR +1 more

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Parties

A. B. M.

Applicant/appellant

B. A.

Applicant/appellant

Minister for Justice and Equality

Respondent

Procedural Posture

Appeal / Judgment on Appeal From High Court Refusal of Certiorari

Legal Issues

  1. 1 Whether an Irish citizen has a constitutional right under Article 41 to have a non-national spouse reside in Ireland
  2. 2 Whether such a right must be the starting point for Ministerial consideration under s. 3(11) Immigration Act 1999
  3. 3 Whether the Minister may apply the 'insurmountable obstacles' criterion from ECHR jurisprudence in such cases

Ratio Decidendi

The Minister's assessment of the application to revoke the deportation order was not in accordance with law because it failed to properly consider the constitutional rights of the applicants as required by the Constitution, treating them as equivalent to ECHR rights, which is incorrect. However, there is no constitutional right entitling an Irish citizen to have a non-national spouse reside in Ireland.

Court Disposition

Order of certiorari granted quashing the Minister's decision; no remittal for reconsideration; applicants may make a new application for revocation and visa.

Orders

  • Order of certiorari of the Minister's decision of 13 July 2015
  • No order remitting the application to the Minister