The High Court hearing of two cases of asylum seekers who have children born in the State and are challenging the Minister for Justice’s order for their deportation resumed today.
The outcome of the cases taken by a Nigerian man and a Czech couple is thought to have far-reaching implications for non-nationals who are seeking to stay in Ireland on the grounds of having an Irish-born child.
Mr Bill Shipsey SC, representing the parents involved, drew heavily on the Supreme Court decision made in the 1990 Fajujonu case where parents of children born in the State were given leave to remain in the State.
He argued that, based on this case, there could be "no question" that the children in the current case have a constitutional right to the care of a family.
He argued references in the Fajujonu judgment to the fact that the parents involved had resided in the State for "an appreciable time" had little bearing on the children involved.
The court heard the State can only interfere with the constitutional right of an Irish-born citizen to family protection in a situation in the interests of the common good.
Mr Shipsey outlined some of the rights of an Irish citizen, including the right to education and the right to go to primary and secondary school. He argued there was no way these could be considered contrary to the common good.
The court heard under Article 41 parents are the appropriate party to make decision relating to their children. In both cases, the parents have asserted a choice of residence in this state on behalf of their children.
Mr Shipsey said not only has a choice been made on behalf of these children, but that it is in the interest of these children that they remain in the State.
The court also heard a significant constitutional change has occurred since the Fajujonu case. The position of the children involved has been strengthened by Article 2 as they now have a constitutional right to citizenship, the court was told.
Also representing the parents, Mr Gerard Hogan SC challenged a recommendation on which the Minister for Justice based his deportation decision, where it was stated that an Irish citizen "may have rights to reside in the State."
Mr Hogan said the statement was an erroneous interpretation of a fundamental constitutional right and downgraded the Supreme Court judgment to a discretionary matter.
The Minister’s decision to deport the parents of these children therefore proceeded on the basis of an inaccurate statement of law, the court heard.
Opposing counsel argued it had never been the case of the respondents that an Irish child could be deported.
The case continues this afternoon.