The Supreme Court allowed an appeal by five Nigerian children and quashed the deportation orders made against them, ruling that their mother’s unsuccessful asylum application did not count as an application for refugee status by or on behalf of the children.
Mr Justice Finnegan delivered the judgment on 18 October 2007. The appeal concerned deportation orders made under section 3(2)(f) of the Immigration Act 1999, which applied to people whose asylum applications had been refused. The Court held that the children had made no asylum applications, so that provision did not apply to them and the basis for their deportation orders did not exist.
The children arrived in Ireland with their mother in May 1998. They were then aged between four and 12. Their mother applied for asylum the next day, completing one questionnaire in her own name. She said she feared that the military would harm her and her children because her brother, an army member, was being sought after an alleged coup plot. Her asylum claim was refused, and a subsequent appeal recommendation was that it be dismissed.
In 2002, the Minister notified the mother and children that deportation orders were proposed against each of them. The children’s solicitor later said they had a distinct fear of female genital mutilation if returned to Nigeria, but they had not been given an independent asylum application or an opportunity to present those concerns. The judgment records that the children were not considered at their mother’s interview.
The Minister’s representative said the mother’s asylum application had been treated as covering her accompanying children, in line with a policy based on family unity and the UNHCR handbook. The Court examined the handbook’s guidance and concluded that, if a parent’s refugee claim succeeds, dependent children should benefit from family unity. If the parent’s claim fails, however, a child may seek refugee recognition on the child’s own circumstances and reasons. The principle of family unity operates for a dependent child’s benefit, not against the child.
The Court therefore found that the Minister had erred in treating the mother’s application as one made on behalf of the children. It answered the first certified point of law in the negative. Because there had been no application on behalf of the children, the Court said the second certified point—about separate consideration and interviews for accompanied minors—did not arise for decision. The appeal was allowed and certiorari was ordered quashing the children’s deportation orders. The judgment does not decide the children’s asylum claims or their separate fears.