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

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.