The High Court directed the Minister for Justice to reconsider a deportation order against a Nigerian national after finding that the Minister had not properly inquired into the constitutional rights of the man’s unborn child before refusing to revoke the order.
In a judgment delivered on 4 March 2008, Ms Justice Irvine found that the decision of 15 March 2006 was made without sufficient information to assess how deportation could affect the child’s rights to the care, support and company of his parents. The court directed the Minister to reconsider the application under section 3(11) of the Immigration Act 1999. It did not decide whether the deportation order should ultimately be revoked.
The father, identified in the redacted judgment as O.E., had arrived in Ireland as an unaccompanied minor in 2002. His application for refugee status was unsuccessful, and he was deported to Nigeria in March 2005. The Minister later revoked that order and allowed him to return on a study visa to complete his Leaving Certificate. A further deportation order was made in March 2006 after the Minister rejected representations seeking permission for him to remain.
The father’s solicitors notified the Minister on 15 March 2006 that O.E. was the natural father of a child expected to be born in early April. The Minister refused to change the decision, saying the relationship and pregnancy did not alter his conclusion. The child was born in Ireland on 24 March 2006. The child, represented in the proceedings by his father, challenged the refusal to revoke the order.
Justice Irvine held that the child, although unborn when the Minister made the decision, should have been treated as having the constitutional rights he would have had if already born. Because the parents were not married, the court said the relevant rights arose under Articles 40.1 and 40.3 of the Constitution rather than Articles 41 and 42. Those personal rights included the child’s right to the care, company and support of both parents.
The court found that the Minister knew the mother’s name and the expected birth date, but had no information about her circumstances, the child’s likely support, or whether the family could live together in Nigeria. It concluded that there was no evidence the child’s rights had been weighed against the common good and the integrity of the immigration system. The judgment also noted that the father had withheld information about the pregnancy during earlier representations and that the Minister had faced an unreasonable deadline to decide the request.
The court did not determine whether the child had rights under Article 8 of the European Convention on Human Rights. It left the nature of the further inquiry and the weight given to relevant evidence to the Minister. The judge said she would consider an injunction restraining deportation if asked, pending that reconsideration; the judgment itself did not make that injunction order.