Mother and Irish-born daughter lose appeal over deportation

A Nigerian mother and her Irish-born daughter have lost their appeal claiming the child’s right to education under the Children’s Act 2015 outweighs the State’s entitlement to deport them.

The mother and daughter, now aged nine, remained in Ireland illegally after deportation orders were made in 2009. The High Court correctly held the child’s right to education while here did not prevent their deportation, the three judge Court of Appeal ruled on Tuesday.

However, it disagreed with the weight given by the High Court to an European Court of Human Rights (ECtHR) judgment concerning Norway’s entitlement to operate immigration policy on the basis of identifying children with conduct of their parents.

Ms Justice Mary Irvine said the ECtHR’s decision did not mean the Irish courts should “ignore the fundamental values associated with family life” as protected by Article 42 of the Constitution.

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The Courts should strive to ensure the European Convention on Human Rights is not used to reduce the level of protection of those rights.

It is “quite wrong” to treat ECtHR judgments as having similar binding status to those of the Supreme Court or Court of Justice of the EU, she said.

The Constitution requires the State to recognise the family rights of non-citizens as well as citizens and to protect them “given that these rights derive not from citizenship but from their nature as human beings”.

The Court of Appeal decision concerned a woman who was heavily pregnant when she came here alone in 2008. Her daughter was born four days later.

After applications for asylum and subsidiary protection were refused, the Minister for Justice ordered deportation of mother and daughter in late 2009.

They went into hiding for about five years until 2014 when the mother instructed solicitors to apply for revocation of deportation.

In May 2015, a month after the Children’s Act 2015 came into force, the Minister refused revocation.

Leave for judicial review was then sought, primarily grounded on Article 42A of the 2015 Act which requires the State, as far as practicable, to protect and vindicate the “natural and imprescriptible rights of all children”.

In the High Court in May 2016, Mr Justice Richard Humphreys rejected their challenge but permitted them appeal his decision.

He refused an injunction restraining deportation pending appeal but the Court of Appeal later granted an injunction until the appeal was decided.

All three appeal court judges agreed the appeal should be dismissed.

The president of the Court of Appeal, Mr Justice Sean Ryan, said while the obligation to protect the natural and imprescriptible rights of all children applies to immigration decisions, the entitlement to an education does not create an entitlement to remain in the State if a person is here unlawfully.

Article 42A does not bar deportation of a child undergoing primary education here and a contrary view would make the State’s immigration policy “impossible to implement”, he held.

He also disagreed the Minister was required to address the circumstances of this mother and child individually, not jointly, and to compare educational opportunities for the girl here and in Nigeria before deciding whether to revoke deportation.

In her separate concurring judgment focussing on the High Court’s refusal of an injunction preventing deportation before the appeal was decided, Ms Justice Irvine upheld that refusal but disagreed with part of the High Court rationale for it.

In relation to a family’s bid for orders restraining deportation pending a full hearing of their main case, she disagreed with the High Court a parent’s evasion of deportation orders can he held against their child.

There can be no “absolute rule” for all cases and criminal misconduct by a parent might warrant a different approach, she stressed.