An Irish woman, her Nigerian husband and Irish-born daughter have won their High Court challenge to an order for his deportation made while the woman was pregnant with the child. The man has already been deported.
Mr Justice Gerard Hogan found the Minister for Justice’s decision to deport the man, an architectural student, effectively amounted to a permanent forcible separation of the family and the Minister had not fairly weighed their family rights.
It was “sobering” to reflect the couple’s daughter, born months after her father was deported last February, might never actually see her father during her childhood, he said.
The “essential point” in the case was the Constitutional protection of the fundamentals of marriage and insistence the State respects the essence of that relationship, the judge said. The judiciary was required to ensure those rights “are taken seriously”
The Minister’s decision to deport turned on the conclusion the wife could choose to travel to Nigeria to join him but that conclusion was neither realistic nor proportionate and amounted to “a pure fiction”, the judge found.
With the possible exceptions of those employed in “the gilded world of international finance or the oil industry” who probably lived in “gated” communities specially designed for expatriates with lifestyles remote from the average Nigerian, it was difficult to see how any average Irish family would ever contemplate moving to Nigeria, he said.
It was clear from country of origin information on Nigeria the risk posed to immigrants from Western countries, including of kidnappings, are considerable, he outlined.
The man had arrived here in March 2009 but his applications for asylum and subsidiary protection were rejected. In October 2010, an order was made for his deportation, he was arrested in January 2011 and deported about a month later.
His wife is an Irish citizen and mother of two girls, one from a previous relationship and the second, fathered by the Nigerian man, born some months ago.
Mr Justice Hogan said, while the Minister was made aware the woman was pregnant with the man’s child, it was unsatisfactory certain other vital information was not supplied to the Minister or court or was supplied late, including about the couple’s marriage and the wife’s circumstances.
Despite that, it seemed the wife has limited financial resources and has been left to manage the two children on her own, he said.
The judge noted, when the man was deported, his wife was two months pregnant with their child who was entitled to Irish citizenship. The constitutional guarantee of the right to life of the unborn had no direct role in the case, he said.
Addressing whether the deportation order infringed the constitutional protection of family rights, he said the test was whether the Minister considered all the circumstances in a fair and proper manner and reached a reasonable and proportionate decision.
Factors to be taken into account included the man’s weak links with Ireland, the likelihood his wife had no links with Nigeria and the couple marrying when both knew the man’s immigration status was precarious. Other factors included the man’s marriage to an Irish citizen, his being father of another Irish citizen and the constitutional requirement to respect the rights of a married couple.
A decision effectively compelling this couple to live permanently apart involved a very significant interference by the State with a core principle protected under Article 41, the judge said. Such a decision required compelling justification and a fair weighing of the interests of the couple and the State.
While the Minister appeared to have blithely assumed the wife could go to Nigeria, there were issues whether Nigeria was safe, whether she and her children would be permitted entry and if they could survive in a country “with no social security system worth speaking of”.
The reality was the Minister’s proposal would probably lead to this family being permanently forcibly separated, he found. In all the circumstances, the Minister had not fairly weighed their rights.
