by Hernan Perez McKay.
Hernan Perez McKay is a second year BCL (Law with Chinese) student at UCD. He was selected as the winner of the Law Review’s annual case competition for this piece on Middelkamp v The Minister for Justice.
In Middelkamp v Minister for Justice,[1] the Supreme Court held that a woman living in Ireland on a two-year working non-renewable holiday visa could not rely on Article 8 of the European Convention on Human Rights (the Convention) to renew her visa and stay with her husband. In reaching this decision, the Court discussed two significant points of Constitutional and Convention law. Firstly, it was noted that it is undesirable for applicants to rely solely on ECHR provisions when corresponding constitutional provisions exist. Secondly, in respect of Article 8 of the Convention, the ratio in Hogan J and Charleton J’s judgements differed significantly. Hogan J departed from the Razgar/CI[2] de minimums test, while Charleton J held that Article 8 rights require a specific threshold. This case note will first discuss the constitutional aspect of the decision, before exploring the different approaches to Article 8 and arguing that Hogan J’s reasoning is far more persuasive.
The Convention and the Constitution
In Middelkamp, Hogan J reiterated the relationship between the Convention and the Constitution, citing AC v Hickey to emphasize that the Convention is not a ‘surrogate Constitution’ but an attempt to establish minimum guarantees within each Contracting State.[3] He pointed to several examples of legal practitioners relying on articles of the Convention as if they were interchangeable with those of the Constitution.[4] He continued that the Constitution is superior to the Convention and that it is inappropriate to only rely on the Convention when a similar Constitutional provision exists.[5]
Hogan J’s criticisms are fitting. The Constitution is the foundation of Irish law and by only relying on the Convention, Irish Courts fail to build up a body of case law elucidating the scope of Constitutional rights. Furthermore, the Court has the authority to strike down a law when it is unconstitutional but not when a law is only in violation of the Convention.[6]If a piece of legislation or an administrative action violates both the Convention and the Constitution but only the Convention is relied upon, the Court cannot rectify the unconstitutional provision.
The Threshold of Article 8
Following the judgment of MacMenamin J in MK (Albania) v Minister,[7] Hogan J held that Razgar/CI imposed too high a threshold and that Article 8 of the Convention applies to more than just ‘exceptional circumstances’.[8] Where there has been an interference with the right to respect for the family or private life under Article 8, the Court must decide whether such an interference is necessary for a democratic society under Article 8(2) of the Convention.[9] The Razgar/CI test required such an interference to create grave consequences before Article 8 applied.[10] Under this test, deportation alone did not constitute a significantly grave consequence. Hogan J argued that the Razgar/CI test was not supported by the text of Article 8 or by the rulings of the ECtHR, pointing specifically to MA v Denmark in which the Court implicitly recognized that requiring couples to remain apart constituted an interference with their Article 8 rights.[11] Turning to Article 8(2), he held that interfering with these rights in order to run a consistent and coherent immigration system was proportionate and allowed the Minister’s appeal.[12]
Charleton J argued that as the Convention applies to all ‘organs of the state’,[13] there must be a threshold test to ensure only legitimate human rights issues are brought forward.[14] He argued that where someone knowingly obtains a limited visa that will require them to leave the country without their partner, the State is not violating their rights and, barring exceptional circumstances, has no obligation to allow them to reside.[15] He then pointed to Article 8(2) of the Convention to argue that restrictions that are necessary for the functioning of a democratic society are ‘not a denigration’ of the right of respect for family life.[16] As such, he allowed the Minister’s appeal on the grounds that the appellants’ Article 8 rights had never been engaged in the first place.
This judgment represents two differing views of Article 8. Hogan J separates Article 8(1) and 8(2) and looks first at whether the state’s actions violated Article 8(1) before going on to examine if such a violation is permissible.[17]Alternatively, Charleton J’s perspective collapses the two sections and argues that the right to respect for family life has not been violated if the interference can be justified by Article 8(2).[18] The language of the Convention supports Hogan J’s interpretation: Article 8(2) uses the language ‘there shall be no interference … with the exercise of this right’ before listing the circumstances in which interference is acceptable.[19] It does not state that any such action will not amount to an interference in those circumstances. Charleton J made no mention of MK (Albania) or of the Razgar/CI test,[20]instead choosing to rely on older cases that discuss the proportionality of expulsion orders.[21] This approach not only ignores recent case law but also requires an artificial restriction of what constitutes an interference with one’s Article 8 rights. Forcing a couple to live separately against their will is clearly an interference with one’s family life. Hogan J’s approach both relies on relevant case law and acknowledges the reality that just because an interference can be justified does not make it any less of an interference, making it far more convincing than that of Charleton J.
Conclusion
Middelkamp v Minister for Justice[22] makes the relationship between the Constitution and the Convention clear: the Court will not be receptive to arguments made solely on the basis of the Convention where corresponding Constitutional provisions exist. This clarification will hopefully lead to an increase in the number of Constitutional Rights cases and a deeper development of that field of law. Additionally, while both Hogan J and Charleton J allowed the Minister’s appeal, Hogan J’s reasons for doing so were far more persuasive, relying on recent case law which established a higher level of protection for rights under Article 8 of the Convention.
[1] Jamie Middelkamp v The Minister for Justice and Inequality [2023] IESC 2.
[2] R (Razgar) v Home Secretary [2004] UKHL 27; CI v Minister for Justice [2015] IECA 192.
[3] AC v Hickey [2020] 2 IR 38.
[4] Gorry v Minister for Justice and Equality [2020] IESC 55; Clare County Council v McDonagh [2022] IESC 2.
[5] Middelkamp v Minister for Justice [2023] IESC 2, Hogan J.
[6] The European Convention on Human Rights Act, s 5(2).
[7] MK (Albania) v Minister for Justice [2022] IESC 48.
[8] Middelkamp v Minister for Justice [2023] IESC 2, Hogan J.
[9] ibid.
[10] CI v Minister for Justice [2015] IECA 192.
[11] MA v Denmark App No 6697/18 (ECHR, 9 July 2021).
[12] Middelkamp v Minister for Justice [2023] IESC 2, Hogan J.
[13] The European Convention on Human Rights Act, s 3.
[14] Middelkamp v Minister for Justice [2023] IESC 2, Charleton J.
[15] ibid.
[16] ibid.
[17] Middelkamp v Minister for Justice [2023] IESC 2, Hogan J.
[18] Middelkamp v Minister for Justice [2023] IESC 2, Charleton J.
[19] The European Convention on Human Rights Act, sch 1.
[20] Middelkamp v Minister for Justice [2023] IESC 2, Charleton J.
[21] Bensaid v the United Kingdom Application No 44599/98 (ECHR, 6 February 2001); Jerry Olajide Sarumi v the United Kingdom Application No 43279/98 (ECHR, 26 January 1999); Andrey Sheabashov c. la Eettonie Application No 50065/99 (ECHR, 22 May 1999).
[22] Middelkamp v Minister for Justice [2023] IESC 2.
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