Ireland Supreme Court rules on obligation to consider the position of the unborn child in decision to revoke deportation order concerning the father

Wednesday, March 7, 2018

On 7 March 2018, the Supreme Court of Ireland ruled in case M & ors vs Minister for Justice and Equality & ors, which concerned a Nigerian national who unsuccessfully applied for asylum in Ireland and who later received a deportation order. He applied for a revocation of the deportation order arguing, inter alia, that the Minister for Justice and Equality had to take into consideration the fact that he was soon to become the father of an Irish baby. The Minister maintained that there was no obligation to give any separate regard to the position of the unborn.

On appeal, the High Court of Ireland dissented from the Minister’s opinion and found that the Minister was obliged to have regard to the fact of the pregnancy and moreover to the likely impact of deportation on the rights which the Irish citizen child would acquire on birth. The High Court found that the unborn had actual existing constitutional rights which the Minister was obliged to consider that were not limited to Article 40.3.3 of the Irish Constitution (right to life of the unborn). It also decided that the unborn was a child for the purposes of Article 42A and was therefore protected by the provisions of that article.

The Supreme Court of Ireland concurred with the High Court that the Minister is obliged to consider the fact of pregnancy of the partner of the potential deportee as a relevant factor in any decision to revoke a deportation order and is obliged to give separate consideration to the likely birth in Ireland of a child of the potential deportee. However, it reversed the High Court’s determination that the unborn possesses inherent constitutionally protected rights other than those expressly provided for in Article 40.3.3 of the Irish Constitution, namely the right to life, which is not implicated in the deportation decision in this case. This conclusion does not, however, alter the outcome of the case.


This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.                                                    


Best interest of the child
Child Specific Considerations
Family member
Family unity (right to)