Mr Justice Colm MacEochaidh quashed the deportation orders over the State’s “irrational and unlawful” failure to consider their rights under Article 8 of the European Convention of Human Rights to respect for private and family life before ordering their deportation.
He said another ground of challenge to the orders, based on the State’s obligations under the UN Convention on the Rights of the Child to consider the best interests of children when making decisions affecting them, must fail because the relevant terms of the Irish Immigration Act and the Convention “contradict” each other.
Because of that conflict, he could not find this child had a legitimate expectation the terms of the convention would be respected by the Minister for Justice in deciding whether she should be deported, he said.
The woman arrived in Ireland when pregnant in late 2008 and her daughter was born in February 2009.
In asylum applications for mother and child, the woman claimed her boyfriend had been killed by a military group and she fled Nigeria because they were also pursuing her and she feared for her child’s safety.
Both applications were rejected by a Refugee Applications Commissioner, primarily on the basis of a lack of credibility, and deportation orders were ultimately made by the Minister for Justice in November 2010.
The mother and child then brought judicial review proceedings centring on alleged breaches of their rights under Article 8 of the ECHR and they raised arguments under the UN Convention of the Rights of the Child.
Upholding their claims under Article 8, Mr Justice MacEochaidh found the State had adopted an “irrational” and “unlawful” approach in how it decided the Article 8 rights were not engaged by the proposed deportations.
Although the State respondents decided the mother and child did have private lives in the State, they went on to decide their removal from the State would not have grave consequences for their private lives, he said.
This led the State to find the Article 8 rights were not engaged and therefore there was no need to consider issues, including whether the deportations would disproportionately affect Article 8 rights.
This was not a lawful approach because a lawful approach requires the decision maker to first ask whether deportation would interfere with the applicants’ private lives and then ask whether the interference is serious enough to engage Article 8 rights.
He rejected the State’s arguments that case law of the European Court of Human Rights means that non-settled migrants do not have private life rights which require to be respected by Article 8.
The European Court of Human Rights has rather conducted a proportionality analysis which led to some decisions by that court that the deportation of non-settled migrants were not disproportionate measures, he said. The fact a proportionality analysis was conducted meant the European Court must have considered such rights were engaged.
On those grounds, he would quash the deportation orders, the judge said.
Dismissing the arguments related to the State’s obligations under the UN Convention of the Rights of the Child, he said he was precluded by the Constitution from writing the text of Article 3 of that Convention -which provides, in decisions concerning children, their best interests shall be a primary consideration – into the Irish Immigration Act, he said.
No provision of the Immigration Act requires the Minister for Justice to consider the best interests of the child as a primary consideration concerning making a deportation order, he said.
It was “impossible” to read the rules in the Act in consonance with Article 3 of the Convention as they were “at a far remove one from the another”. The rule in the Convention thus failed to find expression within the State by operation of the principles of public international law.
Culled from: http://www.irishtimes.com/news/crime-and-law/courts/circuit-court/nigerian-woman-and-irish-born-child-win-challenge-to-deportation-orders-1.2277932