Ireland - Dos Santos & ors -v- Minister for Justice and Equality & ors, [2015] IECA 210

Country of Decision:
Country of Applicant:
Date of Decision:
30-07-2015
Citation:
Dos Santos & ors -v- Minister for Justice and Equality & ors, [2015] IECA 210
Court Name:
Court of Appeal
National / Other Legislative Provisions:
Ireland - Immigration Act 1999 - Section 3
Ireland - Immigration Act 1999 - Section 3(6)(a)
Ireland - Constitution - Art 40
Ireland - Constution - Art 41
Ireland - Constitution - Art 42A
Ireland - Constitution - Art 29(6)
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Headnote: 

Non-Citizen children of the State have rights protected by the Constitution when in the State, including rights under Article 41, 42 and 40.3. However, the right to reside in the State is a protection under Article 40.3 which is reserved for Irish citizen children. It is the citizenship of the child that confers this right to live in the State under Article 40.3.

The best interests of the child are considerations that must be assessed when deciding upon a deportation order for a child. However, as the Convention on the Rights of Child has been ratified by Ireland but has not been implemented as part of domestic law, the Court is not bound to view the best interests of the child as the primary consideration.

Facts: 

The applicants are of Brazilian nationality and are a family unit consisting of a father, mother and five children. The father had arrived in Ireland lawfully on a work permit in 2002, this expired a year later. The mother had subsequently arrived in 2003 and their children between 2006 and 2007. The father was later stopped by the gardaí at a road check in 2007 upon which his irregular status was identified and deportation orders were issued in 2012 in respect of all applicants.

Leave to apply for judicial review against these orders was granted by the High Court in 2013 with the focus of submissions squarely hinging upon the children’s rights, namely that deportation would breach the personal right to a private life under Article 40.3 of the Constitution, that section 3 of the Immigration Act 1999 as amended must be construed in accordance with Article 3(1) of the Convention on the Rights of the Child, and that a determination had to be made as whether Article 8 of the Convention on Human Rights was engaged in relation to a potential interference with the child’s right to private life.

The High Court, on the basis of arguments later confirmed by the Court of Appeal and summarised below, dismissed the applicants’ claim for Certiorari of the decisions of the Minister to make deportation orders against them. 

Decision & Reasoning: 

Article 40.3 of the Constitution

The Court first outlines the applicants submissions who argue that a non-national child who is not a citizen and does not have lawful permission to stay in the State has as part of his or her personal right, as protected under Article 40.3 of the Constitution, a right to a private life in the State including a right to remain in the State and continue to participate in a community life established while in the State. Whilst acceding to the argument that such children do have rights protected by the Constitution whilst present in the State, such as rights to fair procedures, the Court of Appeal, as in C.I., makes a distinction between children who are citizens of the State and those who are not. Confirming that it is the citizenship that grants a constitutionally protected right to live in the State, the Court of Appeal agrees with the High Court judge in finding that as the applicants were non-citizen children of the State they do not have a personal right within the meaning of Article 40.3 to remain in the State and/or participate in community life in the State.

Interpretation of s. 3(6)(a) of the Immigration Act 1999, as amended

The Court turns to the question of whether, when making a decision pursuant to Section 3(6)(a) of the Immigration Act 1999 leading to the deportation of a child, that Article 3(1) of the Convention on the Rights of the Child should be relied upon. This would, therefore, mean that when a determination has been made that the person is a child, the child’s best interests must be “a primary consideration” when determining whether or not to make a deportation order in respect of the child.

Confirming that the Convention has been ratified in Ireland but not implemented by an Act of the Oireachtas, the Court highlighted, by virtue of Article 29.6 of the Constitution, that the UN Convention is not part of domestic law. Therefore, whilst the best interests of the child, including family circumstances and the child’s welfare, are considerations that must be assessed, the Court is not bound to view such interests as the primary consideration. The Court of Appeal noted that since the decision of the trial judge Article 42A of the Constitution came into force and that this article too is silent on decisions taken by the Minister in relation to the deportation of a child. Moreover, Article 24(2) of the Charter of Fundamental Rights of the European Union is not applicable as the deportation decisions taken by the Minister were not ones to which the Charter applies.

Article 8 of ECHR

Lastly, the Court considered the impact of a deportation order on the rights to respect to private and family life under Article 8(1) of the ECHR for the applicants. Taking cue from the ministers decision to assess the mothers and children’s deportation orders in light of Article 8 separately from the fathers, as it was acknowledged that the latter had had the opportunity to develop links with his community and develop his private life in the State, the Court of Appeal, relying upon the interpretation given to Article 8 in C.I., held that for all applicants the alleged interference with the right to private life under Article 8 did not have consequences of such gravity to potentially engage its operation.

Outcome: 

The Court of Appeal held that the trial judge was correct in dismissing the applicants’ claim for Certiorari of the decisions of the Minister to make deportation orders in respect of the applicants.

Appeal was dismissed.

Subsequent Proceedings : 

The appeal raises similar issues in relation to Article 8 of the European Convention on Human Rights to that raised in the appeal of C.I. and others, delivered on the same day, albeit in a context where the trial judge did not consider the Minister to be in error in the approach taken with regards to the questions formulated by Lord Bingham in Razgar.

An addendum was added to the appeal noting the decision of the Supreme Court in P.O & anor -v- Minister for Justice and Equality & ors [2015] IESC 64. The Supreme Court decision follows the reasoning in Dos Santos and C.I. in that it confirms that although family life arose in this State, it occurred at a time when the first named appellant must have been aware that her immigration status was “precarious.”

Observations/Comments: 

The court assessed the applicants’ rights to private life under Article 8 in a fashion similar to the assessment in the C.I. case.

For a concise summary of this case please see;

Brophy Solicitors, Recent Cases on Deportation Orders & Article 8 Rights, October 2015

Case Law Cited: 

Ireland - P.O & anor -v- Minister for Justice and Equality & ors [2015] IESC 64.

Ireland - C.I. and Others v. Minister for Justice and Equality and Others

Ireland - G. v. An Bord Uchtala [1980] I.R. 32

Ireland - O’Domhnaill v. Merrick [1984] I.R. 151

Oguekwe v. Minister for Justice, Equality and Law Reform [2008] 3 I.R. 795

Ireland - Kavanagh v. Governor or Mountjoy Prison [2002] 3 I.R. 97