The rights conferred by Article 41 of the Constitution are nevertheless real rights and must be regarded as such by the Minister. They cannot be treated as if, so to speak, they were mere discards from dummy in a game of bridge in which the Minister as declarer has nominated the integrity of the asylum system as the trump suit.
I am in some danger, at this point, of becoming a Hogan J. fan-girl. S & Anor. v. MJELR is another landmark in his formal but functional Article 41 immigration jurisprudence. In March, Hogan J. considered a married couple’s challenge to a refusal by the Minister for Justice to revoke a deportation order pursuant to s. 3 of the Immigration Act 1999. The order affected E; the Nigerian wife of S, an Irishman with physical and intellectual disabilities. The couple had met a little before the Minister decided to deport her on foot of a failed application for asylum. They have been married for over a year, and the marriage is valid (concerns about S’s capacity to marry had been considered and dismissed at an earlier hearing). Over time, E has become heavily involved in S’s care and they have lived together as man and wife.
Hogan J. held that in exercising his functions under the 1999 Act, the Minister must ensure that his decision conforms to the State’s obligation contained in Article 41.3.1 of the Constitution to guard with special care the institution of marriage, absent some compelling justification. Hogan J. criticised successive Ministers’ tendency to assume that the imperative need to uphold the integrity of the asylum system will always amount to a sufficiently compelling justification. The Minister’s duty is, rather, to ‘balance competing interests in a proportionate and fair manner’. S and E’s dilemma presented one of those ‘perhaps…unusual and exceptional’ cases in which the balance fell on the side of marriage.
In this case, concern for the integrity of the asylum system arose from the fact that S and E married while they knew that E’s immigration status was precarious. The Minister was entitled to put that factor in the balance (see Omoregie v Norway). But it could not, in itself, outweigh what was in the other side of the balance in this case; that given S’s vulnerability, deportation would do permanent and fundamental damage to his marriage to E. Hogan J. condemned as “entirely unrealistic and totally unbalanced,” given S’s intellectual and physical disability, the Minister’s assertion that S would be able to sustain his relationship with E by visiting her in Nigeria. Reasoning by analogy with Boultif v Switzerland he held that the deportation would effectively compel the couple to live permanently apart. This consequence struck at the heart of the couple’s Article 41 rights.
This is a narrow judgment and its limitations are obvious; this decision certainly goes no further than Boultif. Hogan J. is no activist, whatever that word now means (see on this point, his recent judgment in I v. MJELR). But that is the point. The judgment stands as a necessary and important rebuke to a remorselessly hard-hearted immigration system which has not even done the minimum to safeguard human rights.