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Ruling that Justice Minister 'obliged to consider' pregnancies in deportation cases could be 'helpful'

A 2016 High Court ruling that said the Minister is obliged to consider the prospective rights of the unborn in deportation cases has been upheld by Ireland’s highest court.

Image: Haveseen via Shutterstock

THE SUPREME COURT’S ruling today in an immigration case could be “helpful” in deportation appeals, but it won’t have a huge impact on whether cases are approved or rejected, legal experts have said.

Earlier today, the Supreme Court upheld a 2016 High Court ruling that found the Minister for Justice (who oversees deportation applications and appeals) must give separate regard to an unborn child.

In 2016, the High Court found that the Minister “was obliged to have regard to the fact of pregnancy, and moreover to the likely impact of deportation on the rights which the Irish citizen child would acquire on birth”.

This was in relation to a Nigerian asylum seeker who launched a legal challenge to his deportation order in 2015, due to his relationship with an Irish woman and the fact that she was  pregnant with his unborn child, who’s now aged two.

The High Court found that “the unborn… had actual existing constitutional rights which the Minister was obliged to consider” were not limited to Article 40.3.3, also known as the Eighth Amendment.

It held that the Minister’s decision was invalid and made a declaration that the Minister, in considering an application under the revocation of a deportation order, “is required to consider the current and prospective situation of the applicant concerned, including the prospective child of the applicant unborn at the time of the application.”

In its ruling today, the Supreme Court said that it upheld the High Court’s 2016 finding in this regard, and rejected the State’s appeal that the Minister wasn’t required to consider the prospective rights that the unborn would acquire upon birth:

The Minister is obliged to consider the fact of pregnancy of the partner of the proposed deportee as a relevant factor in any decision to revoke a deportation order and is obliged to give separate consideration to the likely birth in Ireland of a child of the potential deportee.

It continued:

“..Moreover, the Minister is obliged to take account of the fact that an Irish citizen child will acquire on birth constitutional rights which may be affected by deportation.”

Although the appeal in relation to the deportation case was upheld, the Supreme Court rejected the High Court’s finding that the unborn was an unborn child, with rights extending beyond the right to life as defined in the Eighth Amendment.

The immigration case

The case that the Supreme Court was reviewing concerned a deportation order given to a Nigerian man who arrived in Ireland in 2007, applied for asylum and was refused. In June 2008, the man was notified that his appeal was also refused.

A deportation order was sent to him in November 2008, but the Nigerian national continued to work unlawfully here. In August 2009 he married a Czech national and applied for residency in the State based on marriage to an EU national, which was rejected in November 2010.

Around September 2014, the man began a relationship with an Irish woman involved in this case. She became pregnant later that year, and in May 2015, the man applied for his deportation order to be revoked.

The case was brought before the court on 27 July 2015. The legal team representing the Department of Justice argued that the man had no constitutional right to remain here because the couple weren’t married, and said that the only right the unborn had was the right to life.

While legal proceedings were ongoing, and following an adjournment, the unborn at the centre of the case was born on 21 August 2015.

Following the birth, the man sent the department an application for residency based on parentage of an Irish citizen child; the Minister for Justice subsequently revoked the deportation order.

The case, however, was allowed to continue as a test case of immigration and constitutional law. In 2016 the High Court found that the unborn child has a constitutional rights outside of the Eighth Amendment:

The unborn child enjoys significant rights and legal position at common law, by statute and under the Constitution, going well beyond the right to life alone. Many of these rights are actually effective rather than merely prospective.

In this case, those rights include the well-being of the child based on the company of both parents.

What this ruling means

In its judgement today, the Supreme Court stated that it is necessary for the Minister for Justice, “as a matter of law to have regard as a relevant circumstance appertaining to Mr. M [the father in this case], that he is likely to become the father of a child born in Ireland”.

“It is difficult to see how it does not necessarily follow from that acceptance that one of the circumstances to which the Minister is required to have regard must involve a consideration by the Minister of the position of that child.

“There seems little logic in attempting to draw what is, in reality, a wholly artificial distinction between having regard to the fact that Mr. M. was likely, at the time of the application to revoke the deportation order concerned, about to be the father of a child born in Ireland but not also to have regard to the position of that child.

The two questions are so inextricably linked that it just does not make sense to suggest that it is possible to have regard to one without also having regard to the other.

Immigration solicitor Wendy Lyon of KOD Lyons told TheJournal.ie that the court’s judgement was “reasonable”, and said that a “compelling argument” had been made by the State.

Although the court’s clarification would be helpful for deportation cases, she said that she’s not sure “if it will have a huge effect”.

Professor of Global Legal Studies Fiona de Londras agreed, saying that the individual nature of cases meant that due weight would still  have to be given to certain aspects, such as at what stage the pregnancy is at.

“The Justice Minister can still issue deportation orders in these cases,” Lyon said, adding that it’s only necessary that the Minister for Justice consider that the person who is due to be deported could be the parent of an Irish citizen child.

“It will be helpful for deportation cases,” Lyon says, but adds, “It’s still at the Minister’s discretion, so I don’t know whether it will make much of a difference in practice.”

She said that it could be the case where the Justice Minister says “we’ve considered this factor but we’re still going to make the same decision”, and it would be compliant with the Supreme Court’s ruling.

That being said, Lyon says that appeals where asylum seekers have a partner who’s pregnant are less frequent than cases where visa applicants have a partner who’s pregnant.

“A few cases do crop up from time to time,” she said.

I don’t think there will be a rush of cases that will be approved because of this judgement that would have been rejected otherwise.

Read: Supreme Court rejects definition of ‘unborn’ as an unborn child in Constitution

Read: The Supreme Court case that needs to be resolved before the Eighth Amendment referendum

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