C.I. v The Minister for Justice, Equality and Law Reform, A.G. and Ireland
This case involved a Nigerian family in respect of whom deportation orders had been made following unsuccessful asylum claims. The Court of Appeal reviewed the decision of the High Court in granting the family orders of certiorari quashing the deportation orders made in respect of them. The principle issue before the High Court was whether the Minister had erred in law in failing to accept that the applicants’ Article 8 rights in relation to private life where engaged on the facts as presented.
There was no dispute that the Minister’s assessment had been carried out under the principles established in Regina v Secretary of State for the Home Department ex parte Razgar  UKHL 27. In this case the court recommended that such assessments under Article 8 are carried out with five questions in mind. This judgement focused mainly on question two: “will such an interference have consequences of such gravity as to potentially engage the operation of Article 8?”
The net issue of this appeal appears to be whether the trial judge was correct in finding that the Minister had erred in deciding that Article 8 was not engaged in this case.
The Court of appeal assessed the jurisprudence of the European Court in relation to the engagement of Article 8 as it applies to settled migrants and as it applied to those who have never lawfully lived in the host State. It found that the right to private life can involve the social and community ties in the host State. The court noted that the right to private life under Article 8 involves an assessment of a person’s right to moral and physical integrity. Where such rights are engaged any decision relating to removal from the State an assessment of the gravity of the consequences on such ties must be made
The Court found that when considering if the right to respect for private life is engaged in relation to an individual who has never been permitted to reside in the host State (other than pending a decision on an asylum claim), it is permissible to take into account that the private life developed at a time when the right of the individual to remain in the State is precarious.
Counsel for the Minister submitted that the Court should determine that persons such as the applicants in this case are not capable of establishing within Ireland a private life capable of protection pursuant to Article 8. The Court refused to do so and highlighted the European Courts have not made such a finding and indeed that the courts have left this matter open. The Court held that the correct approach to decisions under Section 3 of the Immigration Act 1999 is from the stand point that a deportation order in such cases does have the potential to interfere with Article 8 rights.
Dos Santos v The Minister for Justice and Equality, the Attorney General and Ireland
This appeal involved a Brazilian family who arrived in Ireland at various dates between 2002 and 2007. The High Court had found against the family and refused their application for an order of certiorari quashing the decision of the Minister to make a deportation order in respect of them. The trial judge refused the relief sought by the applicants and held that as this decision involved points of law of exceptional public importance it was desirable that this appeal should be taken to the court of the appeal in the public interest.
The court of appeal considered several important issues in relation to the Constitutional and Convention rights as they apply to persons who have resided in the State for a substantial period of time but have never held any legal residence.
The Court of appeal considered the applicants contention that a non-national child who is not a citizen and is not lawfully resident in the State has a right to private life and to continue to participate in a community life established while in the State and that such right is protected under Article 40.3.
The Court of Appeal noted the jurisprudence of the Supreme Court and found that it has been established that such children have rights protected by the Constitution when in the State, including rights under Article 41, 42 and 40.3. However, it held that the trial judge was correct in finding that the right to reside in the State is a protection under Article 40.3 that is reserved for Irish citizen children. It is the citizenship of the child that confers this right to live in the State under 40.3. The court differentiated this with a right that can be given by law or permission of the executive to live in the State.
The applicants made submissions to the trial judge when making a decision pursuant to Section 3(6)(a) of the Immigration Act 1999, that would have the consequence of the deportation of a child, that the “best interests of the child shall be a primary consideration”. This argument was based on Article 3(1) of the Convention on the Rights of the Child. The Convention has been ratified in Ireland but has not been implemented by an Act of the Oireachtas and by reason of Article 29.6 of the Constitution is therefore not part of domestic law. The Court of Appeal found that the trial judge was correct in finding that the best interests of the child are considerations that must be assessed but that 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.
The court assessed the applicants’ rights to private life under Article 8 in a fashion similar to the assessment in the CI case.
P.O & Anor v Minister for Justice and Equality and others
An addendum was added to both of the appeals outlined above noting the decision of the Supreme Court in P.O & Anor. Amongst a number of other issues, the Supreme Court judges assessed the possible interference with Article 8 rights of the applicants who sought revocation of the decision to deport them from the State.
The Supreme Court noted in this case that an assessment of the applicants case had been made under Article 8 by the Minister, it was also noted that no argument was put forward by the State as to why the rights to private life of the applicants would not be engaged by the deportation. The judgment appears to be premised on the basis the deportation would not have the consequence of such gravity as to engage Article 8 rights. The decision of Mr Justice McMenamin states 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”. The judgment of Charleton J notes that those who create uncertainty as to their status within the country to which they migrate, by claiming asylum rights that are unfounded, cannot rely on mere presence to invoke Article 8 rights.
It is submitted that the decision in the P.O. is fact specific and relates to difficulties with the fashion and manner in which the applicants’ asylum claim and subsequent legal proceedings were conducted.
As per the CI and Dos Santos appeals it appears that Article 8 rights in cases of deportation where no legal right of residence existed can still possibly be engaged and this is something that could helpfully be addressed by the European Court in a suitable case.