THE SUPREME Court has unanimously rejected a bid by the Minister for Justice to uphold deportation orders issued against the foreign national parents of two Irish citizen children born here before 2005.
The court's judgment has further clarified the criteria which must be taken into account by the Minister when deciding whether to deport the foreign national parents of children born here before January 1st, 2005.
The five-judge court ruled the Minister was obliged, but had failed, to give "substantial" reasons for the decision to deport the parents of Chuka Paul Oguekwe (4), as well as Ifendima and Ethelbert Dimbo of Nigeria, parents of George (11). A former graduate student in Cork, Ms Dimbo came first to Ireland in 1995.
The Supreme Court ruled yesterday that the Minister failed to consider the rights of the Dimbo and Oguekwe children under the Constitution and the European Convention on Human Rights, including the rights to family life and to be educated and reared here.
The Minister was obliged to consider the circumstances of each case fairly and properly but had not done so, Ms Justice Susan Denham said, nor did the deportation documents identify any "common good" interest requiring the deportations.
However, the judge stressed, neither Constitution nor convention rights were "absolute" and the State also has the right to control the entry, presence and exit of foreign nationals, subject to the Constitution and international agreements.
The State may consider issues of national security and public policy and the Minister should fundamentally consider the common good.
Ms Justice Denham specified that the length of time a citizen child had been here, their schooling and their participation in the community, were very likely to be pertinent factors when deciding on the possible deportation of their parents. However, each case must be decided on its own particular facts and the Minister was not required to "microspecify" matters in his decision. Dishonesty by applicants was also a factor to be taken into account in the overall circumstances of cases while the Immigration Act 1999 also provided for the Minister to consider the parents' conduct and character and employment record.
The proceedings arose from the introduction by the Minister on January 15th, 2005, of the Irish-Born Child Scheme, a revised arrangement to process claims by foreign national parents to remain here on the basis of having a child born here before January 1st, 2005.
The scheme followed the introduction of new laws on citizenship after the Supreme Court ruled that a foreign national parent of an Irish-born child has no automatic entitlement to remain here with the child.
The closing date for applications under the scheme was March 31st, 2005. Of 17,917 applications received, most were granted, with 1,119 refused.
In its judgment last December on the Bode test case, the Supreme Court unanimously overturned a High Court decision.
That was that the Minister unlawfully breached the rights of several Irish-born children in how he refused their foreign national parents' applications to remain here under the Irish-Born Child scheme.
It found the Minister was not required - within the scheme - to consider the constitutional and European convention rights of the children.
However, the constitutional and convention rights had to be considered in relation to any proposed deportation, it also stressed.
In relation to the two cases before it yesterday, which involved an appeal by the Minister against the High Court's findings in both cases, the Supreme Court found that, given the Bode decision, the Minister was entitled to find the parents of the two children involved did not come within the criteria of the scheme on the basis they were not continuously resident in the State, one of the criteria for inclusion in the scheme.
The second issue in the appeal was whether the High Court was entitled to quash the deportation orders made by the Minister in the parents' cases.
Ms Justice Denham agreed with the High Court that the Minister had failed to consider the constitutional and convention-protected rights of the children, including their rights to be educated and reared in Ireland
However, she believed the High Court was wrong to find the Minister should consider the educational facilities in the country of return.
The Minister should consider "in a general fashion" the situation in the country of return but a specific analysis of the educational and other opportunities was only required in "an exceptional case".
