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Sunday, 19 July 2015


The Minister for Justice was legally entitled to affirm deportation orders for a Nigerian mother and her eight-year-old Irish born son, the Supreme Court has ruled.

The Minister, “as a matter of humanity”, might consider how she exercises her discretion concerning the orders, Mr Justice Peter Charleton observed.

Adjourning the matter to October, Mr Justice John MacMenamim said the court would be “interested to see what happens in the meantime”.

In separate judgments, three judges agreed the mother and boy (who is not an Irish citizen) had established no legal basis for orders restraining their deportations and the High Court had correctly refused judicial review of the deportation orders. All three also noted the Minister has discretion concerning deportations.

Mr Justice MacMenamin said the court previously asked for the circumstances of this case be drawn to the attention of the Minister. The child was born here, has lived here all his life and attends school here, the judge noted.

The court was assured the Minister would “carefully review the circumstances”, the judge said.

It is the court’s duty “to uphold the law”, but it was “difficult to avoid the observation that real issues of ministerial discretion may arise in this case”, involving a child and his mother living here for almost nine years.

“As a matter of law, however, it is the court’s duty to identify and apply principles necessary for the operation of the immigration process.”

He must uphold a High Court decision refusing orders restraining the deportations.

Ms Justice Mary Laffoy said the Chief State Solicitors Office had, in a letter to the court, said the current legal reality was these were unchallenged deportation orders and the Minister could not say she would not enforce them. It was also stated the Minister “is always open” to receive fresh applications under procedures of the Immigration Act, where fresh circumstances, particularly any humanitarian considerations relating to the child, could be put.

While that letter was “comforting”, because this child was born here, has lived all his life here and will be nine shortly, she “must agree” with Mr Justice MacMenamin’s concluding observations, the judge said.

Mr Justice Charleton said the High Court was correct to refuse judicial review of the deportation orders. Neither the boy nor his parents are Irish citizens and, while the child had become habituated to Irish ways over almost nine years, he could also become habituated in another country. In this case, “no legal rights are involved”.

Humanitarian considerations may, “in some extreme cases”, suggest, while it is right for the State to control its borders, particular discretion is required by the implementing authorities where such children are involved, the judge said.

As “a matter of humanity, but not as a matter of law”, it was for the Minister to ask herself how she feels it appropriate to exercise her discretion in the matter, he said. In terms of law, the Minister was “clearly entitled” to affirm the deportation orders.

In the judgments, the court noted there was no evidence the woman and her husband were separated. Because her husband, and his family, remain in Nigeria, that meant any family reunification would, in fact, be achieved in Nigeria.

The mother arrived here heavily pregnant and her application for asylum, made on grounds of fear of persecution, was rejected on credibility grounds. Deportation orders for mother and son were made in 2012 and affirmed by the Minister in early 2013.

The Supreme Court upheld the High Court finding no grounds were made out entitling mother and son to judicial review of the reaffirmation decisions. The court rejected arguments the appellants were denied fair procedures and said there was no evidence the Minister had not properly considered all the relevant material.

The court agreed with the High Court there was no breach of private and family life rights under Article 8 of the European Convention on Human Rights on grounds including the child’s parents are Nigerian citizens who remain in contact and the boy’s father and extended family live in Nigeria. The appellants also had no legal entitlement to remain in the State after 2010.

Mr Justice MacMenamin said there was no arguable or fair grounds in law for an injunction restraining deportation. The deportation orders were valid and there was a “clear public interest in orderly operation of the asylum system.

The Minister was also entitled to costs, against the appellants solicitors, of submissions required to meet an “eleventh hour” application to the European Court of Justice which lacked merit and was later withdrawn, the court said.

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