Deportation of parents and siblings of Irish children
Deportation of parents and siblings of Irish children
In January 2011 the IHRC applied to the High Court for liberty to appear in four related cases concerning the threatened deportation of non-national parents/ siblings of Irish citizen children under Section 3 of the Immigration Act 1999. The High Court granted the IHRC permission to so appear and subsequently ruled that the pleadings could be amended to also allow for Constitutional arguments to be addressed. The case was heard over 3 days from 8-10 March 2011 and the IHRC made written and oral submissions.
The four cases were judicial review applications brought by the Nigerian parents and siblings of Irish citizen children challenging deportation decisions.
The central issue which the IHRC highlighted in these proceedings was whether judicial review permitted the Courts to undertake a human rights proportionality assessment when reviewing a deportation order made by the Minister for Justice and Law Reform and the relevant human rights standards which apply. This is the issue of "effective domestic remedy" as required under Article 13 of the European Convention on Human Rights and the IHRC argued that judicial review did permit the Courts to undertake a proportionality assessment.
In his Judgment of 7 June 2011 in one of the related cases, Mr Justice Hogan concluded that Article 40.3 of the Constitution requires the State to vindicate constitutional rights which of necessity requires the State to provide an adequate remedy where such rights may have been breached. Accordingly the courts, where necessary, will fashion such a remedy. Hogan J also concluded that the common law rules of judicial review, as interpreted by the Supreme Court in Meadows v Minister for Justice, met ECHR standards in requiring a proportionality test and that the Oireachtas had provided an adequate remedy under S. 3(11) of the Immigration Act 1999 (which allows the Minister for Justice to revoke a deportation order where there is a relevant change of circumstances since the original decision).
The IHRC had also made submissions highlighting family and children's rights, including those of Irish citizen children where their parents or siblings are threatened with deportation. Family rights are protected under the European Convention on Human Rights. Children's rights are specifically protected under the United Nations Convention on the Rights of the Child.
Full text of the IHRC's written submissions