The High Court has allowed a Nigerian mother and her two young children to pursue a limited challenge to their deportation after evidence was presented about one child’s intellectual disability and Attention Deficit Hyperactivity Disorder.
Olivia Agbonlahor came to Ireland from Italy with her twins, Great and Melissa, in March 2003 and sought refugee status. Her application and appeal were unsuccessful. Deportation orders were made against the family on 15 September 2005.
The planned deportation was initially deferred while Great, then aged four, awaited a specialist assessment. He was subsequently diagnosed with ADHD and intellectual disability. Specialists recommended behavioural support for his mother, specialised schooling, speech and language therapy, a special needs assistant and further occupational and medical assessments.
Solicitors acting for the family asked the Minister to revoke the deportation orders because of those changed circumstances. They also supplied information claiming that suitable facilities for children with such needs were extremely limited in Nigeria.
The Minister refused leave to remain in January 2006. Departmental advice considered Great’s condition but concluded that Ireland could not be obliged to provide indefinite medical care to people who otherwise had no right to remain in the State.
Mr Justice Herbert rejected arguments that the family had an arguable constitutional right to remain because of access to healthcare or special education. He also held that the circumstances did not meet the exceptionally high threshold required for an Article 3 claim based on inhuman or degrading treatment.
However, the judge reached a different conclusion under Article 8, which protects private and family life and can include physical and psychological integrity. Applying the lower threshold governing an ordinary application for leave to seek judicial review, he found that the family had an arguable case that deportation could violate their Article 8 rights.
Leave for judicial review was therefore granted solely on that ground. The judgment did not decide that deportation was unlawful or that the family was entitled to remain in Ireland.