MK (Albania) v Minister for Justice & Equality (Approved)

Factual and Procedural Background

The Appellant, an Albanian national who arrived in The State as an unaccompanied minor on 13 September 2016, applied for international protection in June 2017 and was permitted to work while the application was pending. His request for refugee or subsidiary protection was refused in September 2018, and a contemporaneous application for leave to remain was also rejected. Subsequent review under s.49(7) of the International Protection Act 2015 again refused leave to remain, and a deportation order issued on 4 February 2020. The Appellant sought judicial review; the High Court (Judge Burns) dismissed the challenge on 16 April 2021. The Supreme Court granted leave to appeal, hearing this case together with a linked matter (“ASA”).

Legal Issues Presented

1. Whether officials acting for the Respondent complied with Article 8 ECHR and constitutional requirements when assessing leave-to-remain and deportation decisions for an “unsettled” migrant.
2. Whether the Court of Appeal decision in CI v Minister for Justice was correctly decided and, if not, the consequences for domestic law.
3. Whether a proportionality analysis under Article 8 must always be undertaken, or only where “exceptional circumstances” are first shown.
4. Whether the procedural methodology employed by the Minister—reversing and eliding the first two Razgar questions and halting the inquiry thereafter—was lawful.
5. The appropriate remedy if the decisions were taken in a manner incompatible with the State’s Convention and constitutional obligations.

Arguments of the Parties

Appellant's Arguments

• Error in Law: The Minister’s officials wrongly treated “exceptional circumstances” as a prerequisite to any proportionality assessment, contrary to ECtHR jurisprudence.
• Misapplication of CI: CI misread Strasbourg case-law and should be disapplied; engagement of Article 8 has a low threshold and requires all five Razgar questions.
• Procedural Defect: The officials reversed the sequence of the Razgar questions and inserted the word “potential,” thereby failing to decide if Article 8 was actually engaged.
• Constitutional Right: Even absent Convention protection, the Appellant enjoyed a domestic right to a proportionality analysis grounded in Article 40 of the Constitution.

Respondent's Arguments

• Reliance on CI: The Court of Appeal’s approach remains binding and correctly reflects ECtHR authority; unsettled migrants obtain a proportionality test only in exceptional cases.
• Proper Consideration: The examination of file dealt with each statutory factor under s.49(3) and acknowledged potential interference with private life.
• Outcome Inevitable: Even if Article 8 were engaged, the balancing exercise would not favour the Appellant, so no purpose would be served by quashing and remittal.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge MacMenamin reviewed the Minister’s decision-making methodology and found four fundamental defects:

1. The officials transposed “potential” from the second to the first Razgar question, altering meaning.
2. They reversed the sequence of Questions (i) and (ii), never directly deciding engagement of Article 8.
3. Having answered the first two questions (inverted), they ceased the inquiry, omitting Questions (iii)–(v) and therefore any proportionality analysis.
4. This truncated approach flowed from the Court of Appeal’s decision in CI, which, upon examination of a broad range of ECtHR authorities (Butt, Rodrigues da Silva, Jeunesse, etc.), does not reflect “clear and consistent” Strasbourg jurisprudence.

The judgment emphasises that ECtHR case-law treats engagement of Article 8 as a low threshold; the real balancing occurs under Article 8(2). The Minister’s “exceptionality first” test therefore conflicts with both the Convention and s.3 of the ECHR Act 2003. On constitutional grounds, Judge MacMenamin locates the relevant domestic right primarily in Article 40.3 (personal rights and proportionality), though noting an alternative view that Article 40.6.1(iii) may apply.

Holding and Implications

Proposed Holding (per Judge MacMenamin): The High Court judgment should be set aside and the Minister’s refusal and deportation decisions QUASHED for legal error; the matter should be remitted for a fresh determination that applies all five Razgar questions and a full proportionality assessment.

Implications: The opinion, if followed, dismantles the “CI approach,” obliging first-instance decision-makers to (1) recognise that Article 8 is usually engaged for unsettled migrants, and (2) undertake an explicit proportionality analysis in every case. Although the judgment notes that a majority of the Court may differ on remedy, the analytical framework significantly recalibrates Irish deportation decision-making and signals that future refusals reached without a full Razgar sequence risk being unlawful.