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.
Mr Justice Gerard Hogan found the Justice Minister’s decision to deport the man effectively amounted to a permanent forcible separation of the family.
The “essential point” in the case was the constitutional protection of the fundamentals of marriage and insistence that the state respects the essence of that relationship, the judge said.
The minister’s decision to deport turned on the conclusion the wife could choose to travel to Nigeria but that conclusion was neither realistic nor proportionate and amounted to “a pure fiction”.
He said it was clear from country of origin information that the risk to immigrants from Western countries, including of kidnappings, are considerable.
The man arrived in March 2009 but his application for asylum was rejected. He was deported in 2011.
His wife is an Irish citizen and mother of two girls, one from a previous relationship and the second fathered by the Nigerian man.
Mr Justice Hogan said that, while the minister was made aware the woman was pregnant, other information was not supplied, including about the couple’s marriage.
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.
The judge said a decision effectively compelling this couple to live permanently apart involved a significant interference by the state with a core principle protected under article 41.
The proposal would probably lead to this family being permanently forcibly separated. In all the circumstances, the minister had not fairly weighed their rights.
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