The recent decision of the Court of Appeal in I.G. and Joseph Gorry v. Minister for Justice and Equality is significant.
The Court confirmed that Article 41 of the Irish Constitution goes further than Article 8 of the European Convention on Human Rights in its protection of a marriage involving an Irish citizen.
Article 41 provides that the State recognises the family (based on marriage) as a “moral institution” having “inalienable and imprescriptible rights”, and that the State guarantees to protect the family in its “constitution and authority”. Article 8 of the Convention states that everyone has the “right to respect” for family life. The Court held that the phrases in Article 41 are clearly intended to afford the maximum possible protection to the family and that the language therein is stronger than the language in Article 8. In particular, Mr. Justice Hogan held that the State’s guarantee to protect the family in its “constitution and authority” means that spousal autonomy in respect of all decisions affecting the family, including where the family will live, is a core constitutional value.
The Court outlined that where an applicant relies on a Constitutional provision, this should be assessed first, and should take primacy over any other claim.
The Court clarified that while a couple are not entitled to insist as a matter of constitutional entitlement that their choice of residence must always be accepted by the State, it is not the case that the couple must show there are “insurmountable obstacles” to the Irish citizen moving to the country of origin of the non-Irish citizen. The “insurmountable obstacles” test is applied by the European Court of Human Rights in Article 8 cases.
Mr. Justice Hogan in the Court of Appeal held that the couple’s choice of their country of residence must be assessed and give considerable weight in the Minister’s assessment, particularly because the Irish citizen has an absolute right to reside in the State. The Minister must then take account of and balance the State’s competing interests, including maintaining the integrity of the immigration system and considering whether the couple married when the precarious immigration status of the non-Irish citizen was known. The balancing must be proportionate and respect the constitutional rights of the parties.
Mr. Justice Hogan concluded that the Minister had erred in the case at hand in finding that Article 41 goes no further than Article 8 and that the State is not obliged to respect a married couple’s choice of residence unless the “insurmountable obstacles” test is satisfied. The Court of Appeal thus upheld the decision of Mr. Justice MacEochaidh in the High Court in 2014, that an Irish and non-Irish citizen couple have a prima facie constitutional right to reside in Ireland, subject to lawful regulation.
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