An important case which could have implications for hundreds of failed asylum-seekers hoping to remain in the State by virtue of having Irish-born children opens in the Supreme Court today.
The appeal, which is expected to last for at least two days, is being taken by two immigrant families who lost their High Court challenge against deportation some six months ago.
The Czech family and a Nigerian man had sought in the High Court to have deportation orders against them quashed on the grounds that they were entitled to remain in the State by virtue of having Irish citizens within their respective families.
The Lobe couple from the Czech Republic have a son who was born here last November, while the Nigerian man, Mr Andrew Osayande, has a son who was born in Ireland last October. Under the Constitution, all people born in Ireland are entitled to citizenship, irrespective of the nationality or migrant status of their parents. The focus of today's case is the entitlement of a child born in the State to non-national parents to be cared for by them within the State, even if they would otherwise be liable to deportation.
In an indication of the importance of the case, today's appeal will be heard by a full seven- member bench of the Supreme Court. The hearing follows the High Court's decision last April to uphold a decision by the then minister for justice to issue deportation orders against the Lobe family and Mr Osayande, who had unsuccessfully sought to claim asylum in Ireland.
Mr Justice Smyth then found that the minister was entitled to deport parents of a child born in Ireland, even where this could lead to the Irish citizen being removed from the State.
Non-nationals who have children born here had generally in the past few years been granted residency in Ireland, even if their asylum applications had failed. The policy of generally granting residency to such parents stemmed from a 1990 Supreme Court ruling in the Fajujonu case.
The parents in that case, illegal migrants from Nigeria and Morocco who had lived in the State for about seven years, were allowed to remain in Ireland on the basis that their Irish child had the right to the "care, company and parentage" of its parents within the family unit. Only the interests of the "common good" and "the protection of the State and society" justified any interference with the child's constitutional rights, the court then held.
In recent years, the numbers of asylum-seekers and irregular migrants applying to remain in the State on the basis of the Fajujonu judgment increased significantly. This had led to concerns that people were abusing Ireland's unique citizenship law to gain residency. Today's case involves asylum-seekers who have been in the State for about a year. In both cases, the authorities wish to return the parents to the UK, where their asylum claims have already been refused.
Lawyers for the immigrants are likely today to question the competence of the Minister for Justice to deport parents of young Irish-born children in the absence of "special or overwhelming circumstances".
The State is expected to argue that last April's High Court decision upholding the deportation orders was the correct one.