The High Court has refused a judicial review challenge to the Minister for Justice’s decision not to revoke a deportation order, ruling that the Minister was not required to consider the broader constitutional rights claimed for the applicant’s unborn child.
The case concerned a Nigerian man who arrived in Ireland in June 2008 and sought asylum. His application was unsuccessful, and the Minister made a deportation order on 4 December 2008. The man had married an Irish citizen in October that year. A later application to revoke the order referred to his wife’s pregnancy, but the Minister refused it on 6 February 2009.
The couple and their infant child sought to have that refusal quashed. Their challenge focused on the Minister’s failure to assess the unborn child’s alleged constitutional rights. They argued that the Minister should have considered those rights as if the child had already been born, relying particularly on an earlier High Court judgment, O.E. v Minister for Justice.
The Minister opposed that argument, submitting that an unborn child’s constitutional right was limited to the right to life under Article 40.3.3 of the Constitution. The Minister also argued that O.E. did not establish that an unborn child had the same rights as a child who had been born.
Mr Justice Cooke said O.E. was not binding on the issue because the court in that case had not been asked to decide whether an unborn child had the same constitutional or Convention rights as a born child. He considered the constitutional provisions and earlier case law, and concluded that the unborn child’s protected right was the right to life, understood as the right to be born, with possible related rights left for future decision.
The judge held that the broader personal and family rights attributed to a born Irish citizen child did not have justiciable status before birth. He found that deporting a non-national parent did not interfere with the unborn child’s protected right to life. The Minister therefore had no legal obligation to assess the deportation decision against the broader rights asserted by the applicants, and had made no error of law.
The court refused the application. It did not quash the Minister’s refusal to revoke the deportation order.