Analysis:The roots of the problems surrounding the Irish-born children of foreign nationals lie in the mid- 1990s, when Ireland's burgeoning economy attracted immigrants.
The only procedure open to non-EU nationals wishing to live here was the asylum process. With the influx of economic migrants, the State's small asylum machinery was overwhelmed.
As a result people could be waiting years for their applications to be heard. Many of them had children during this time. The Constitution stated any person born in Ireland was entitled to Irish citizenship. Faced with delays, their lawyers advised them to seek the right to remain in Ireland as the parents of Irish citizen children, and 10,500 did so between 1995 and 2003. In January of that year the Supreme Court delivered a landmark judgment, known as L and O, which stated there was no automatic right of residency in Ireland to the parents of an Irish child. The practice of giving permission to remain to such people ceased.
The Government also proposed a constitutional amendment that would redefine the right to citizenship, restricting it to those with a proven connection to Ireland. That was passed in 2004.
At the time, more than 11,000 applications for the right to remain in Ireland were outstanding from the parents of Irish-born children. A scheme was introduced whereby they would be granted this right, subject to certain criteria. Just under 17,000 people benefited from this scheme, while 1,119 were refused, mainly because they could not prove continuous residency in Ireland since the birth of the child.
These included the applicant in this case, Folajimi Bode, whose wife and child are legally resident in Ireland. Issues like the right to family life of all three, a right under both the Constitution and the European Convention on Human Rights, were canvassed during the successful High Court action. The Supreme Court found that, as this was an administrative scheme, introduced on an ex gratia basis, such rights do not arise. They can be invoked in any application Mr Bode may make under the 1999 Immigration Act.
In her judgment Mrs Justice Denham said the Minister had the absolute right to introduce such a scheme to meet the very particular circumstances in which the State found itself.
These circumstances no longer exist. The scheme referred to a group of people whose children were born in Ireland prior to January 1st, 2005, and who did not qualify for Irish residency under any other heading. Children born since that date, if living with their parents legally and continuously in Ireland since, will shortly qualify for Irish citizenship. The majority of children involved are too young to live here alone.
Mr Bode was served with a deportation order in 2004, but this was suspended pending the outcome of this case. Mrs Justice Denham makes it clear that, if this is reactivated, the Minister can consider any new facts that have emerged.
She has closed the door, however, on those seeking to overturn decisions to refuse people the right to reside under the Irish-born child scheme, provided the criteria were properly followed.