A judge was justified in concluding that a child’s constitutional rights were not properly considered by the Minister for Justice when she ordered for the father’s deportation following his assault conviction, the Supreme Court has ruled.
The five-judge court on Thursday dismissed an appeal against the High Court’s decision to quash the Minister’s refusal to revoke a deportation order issued five years ago for an Albanian national.
In a lead judgment for the court, Mr Justice Séamus Woulfe set out the background to the case.
He said the man, who cannot be identified for legal reasons, entered the State unlawfully in the mid-1990s and worked here without a work permit for years using an alias. He formed a relationship with an Irish woman. They had a son together in the 2000s and later married.
More than a decade ago, the man was sentenced to imprisonment for two firearm offences and assault causing harm more than a decade ago.
After committing the offences, but before conviction, he was granted permission to remain in Ireland for three years as a parent of an Irish citizen child.
The Minister for Justice was not aware of any previous convictions for the man and made no further inquiry into the pending charges against him.
In 2017, while he was still in prison, there was a proposal to deport him pursuant to section 3 of the Immigration Act of 1999. After various engagements, the Minister made a deportation order in 2019 and, in July 2021, refused to revoke this order.
The man, his wife and their child turned to the High Court, which overturned the Minister’s refusal to quash the deportation order.
In the Supreme Court decision, Mr Justice Woulfe said the High Court’s Ms Justice Siobhán Phelan ruled correctly and the Minister’s appeal should be dismissed.
Child's right as Irish citizen
He said she was right to consider the child’s natural and imprescriptible rights under article 42A of the Constitution even though the family did not invoke the article in their grounding documentation to the court. Mr Justice Woulfe said the child’s rights and best interests were “clearly” live issues at all times in the deportation process before the Minister and the judicial review case.
He held that the interests of an Irish citizen child is a primary or important consideration, which does not necessarily dictate the outcome as some deportation cases may contain other important considerations that must be weighed.
Mr Justice Woulfe said the High Court had “ample justification” for concluding the Minister failed to consider the child’s best interests in deciding to refuse to revoke the deportation order.
Mr Justice Maurice Collins delivered a concurring decision, in which he noted the Irish citizen wife and child did not render the man immune from deportation. However, where there are “very real and close bonds” between him and his family, especially his son, the proposed separation of the family unit is a “significant factor to which the Minister must have appropriate regard”.
He said the child’s best interests must be given “significant weight” but these do not give a “de facto presumption or default rule against deportation where that would be contrary to the best interests of a child”.
Ms Justice Elizabeth Dunne and Ms Justice Aileen Donnelly agreed with Mr Justice Collins’s judgment and, with Mr Justice Gerard Hogan, also agreed with Mr Justice Woulfe’s.
