Amicus Curiae - Non-National Parents of Irish Born Children
D.B. & Others v The Minister for Justice, Equality and Law Reform; the Human Rights Commission and the Attorney General Notice Parties (December 2007, May 2008)
The IHRC appeared in May 2007 before the Supreme Court as an amicus curiae in this case which concerned an appeal, by the State, of High Court judgments delivered in November 2006.
The November 2006 judgments concerned eight separate cases brought in relation to applications for residency made by non-national parents of Irish born citizen children under an administrative scheme introduced following the referendum on citizenship in 2004. In each case at least one if not both non-national parents of Irish citizen children were refused permission to remain in the State. These applicants formed part of a larger cohort of around 1,100 persons refused permission to remain in the State following their application to the Minister for Equality and Law Reform under the administrative scheme.
The High Court ruling had found that the human rights of the individuals concerned had been infringed under both the Irish Constitution and the ECHR. Specifically, the court considered that the best interest or welfare of the child was not taken into account. The IHRC's appearance in the proceedings before the Supreme Court was directed towards drawing both constitutional and international human rights principles to the attention of the Court.
In our submission we drew the Courts attention to the following:
- the relevant principles relating to the protection of private and family life in an immigration context;
- the relevant principles relating to the protection of children in an immigration context;
- the principles relating to the requirement for an effective remedy;
- the impact of the caselaw of the European Court of Justice.
Judgment was delivered in December 2007. The Court concluded that the administrative scheme as exercised by the Minister had not been improperly exercised. Subsequent to the Judgment, an application was made by the Applicants/ Respondents to the European Court of Human Rights and a decision on admissibility is pending.
In May 2008, two of the conjoined cases to D.B. (C.O and G.D.), the Supreme Court found that with respect to deportation orders the Minister is required to consider the Constitutional and Convention rights of the Applicants. The cases were distinguished from the other 6 related cases in that the parent Applicants were subject to deportation orders pursuant to section 3 of the Immigration Act, 1999. While the Court reasserted its previous ruling that Constitutional and Convention rights are not engaged in the course of a ministerial decision under the "Irish Born Child" 2005 scheme, the opposite conclusion was reached in relation to deportation orders. In relation to the ministerial discretion conferred by section 3 of the 1999 Act, the Supreme Court agreed with the High Court's analysis which concluded that such discretion is constrained by the obligation to exercise that power in a manner consistent with the Constitution and the provisions of section 3 of the European Convention of Human Rights Act 2003.
Significantly, the Court characterised the cases as being centred on the rights of the Irish born child under Articles 40 and 41 of the Constitution and Article 8 of the ECHR. In its analysis, the Court further described the core of the case to be the dispute between the parties as to the nature of the consideration to be made by the Minister of facts relevant to the citizen child. In affirming the High Court's decision, the Supreme Court set out a non-exhaustive list of matters which may assist, and relate to the position of an Irish born child whose parents may be considered for a deportation order (see paragraph 31 of the Oguekwe judgment).