IESC 3 · Supreme Court

Amended to include names after court ruling of 28.01.03.

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

Geoghegan J.

Fennelly J.

No. 109/2002

BETWEEN/

DAVID LOBE, JANA LOVEOVA, ALADAR LOBE (A minor suing by his father and next friend, David Lobe)

LUKAS LOBE (A minor suing by his father and next friend, David Lobe)

and JANA LOBE (A minor suing by his father and next friend, David Lobe),

and KEVIN LOBE (A minor suing by his mother and best friend, Jana Loveova)

Applicants/Appellants

and

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Respondent

AND

No. 108/2002

BETWEEN/

ANDREW OSAYANDE AND OSAZE JOSHUA OSAYANDE (A minor suing by his mother and next friend, Flora Osayande)

Applicants/Appellants

and

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Respondent

Judgment delivered on the 23rd day of January, 2003, by Denham J.

1. Migration

Over thousands of years waves of people have come ashore on the island of Ireland. However, the island found by those early

migrants was very different from the Ireland of today. The differences included those of the landscape, society and governance.

Tales of early refugees to Ireland are told in myth and legend. In pseudohistory they may be discovered also. Lebar Gabála See The

Irish National Origin-Legend: Synthetic Pseudohistory by John Carey, Quiggin Pamphlets, 1994. described the first invasion as by the

relatives of Noah who had been refused entry to the ark before the flood. Today Ireland is not covered by great oak forests. Raths

have been replaced by housing estates and apartment blocks. The Brehon law has been displaced by modern Irish law. The principles

and law governing Irish society today come from the people and are to be found in the Constitution of Ireland, 1937, and the

legislation of the Oireachtas. It is to that Constitution and law we must look to determine the issues of our times. The days when

migrating people would sail long boats up an Irish river, pull the boat up the shingle, and set up home in Ireland, without recourse to a

central government, are long gone. Today people who migrate to Ireland may arrive by many means but they must comply with the

Constitution and the law.

2. Issue

The essence of the issue in these cases is as follows. Where a non-national married couple arrive in Ireland and a child is born to

them, is the entire family entitled to remain in Ireland (or at least until the child reaches his majority) as a consequence of the Irish

citizenship of the child and the constitutional right of the child to the care and company of his parents, no matter how long or short a

time the parents and child have been in Ireland?

3. Two Appeals

The two appeals were taken together. Both cases require a decision on the facts balancing constitutional principles in circumstances

where children are born in Ireland of parents who are non-nationals.

4. Points of law of exceptional public importance

On 12th April, 2002 the High Court (Smyth J.) refused the reliefs sought by the applicants in both cases. Pursuant to s. 5(3)(a) of the

Illegal Immigrants (Trafficking) Act, 2000, the High Court certified that its decision involved points of law of exceptional public

importance and that it was desirable in the public interest that an appeal should be taken to this court.

5. The Facts

The facts were not in dispute. Andrew Osayande is a Nigerian national who applied for refugee status in the State together with his

wife and daughter in May, 2001. The Minister has determined that the claim of Andrew Osayande should be transferred to the United

Kingdom pursuant to the Dublin Convention. That decision was made pursuant to the Dublin Convention (Implementation) Order, 2001.

The respondent has served a deportation order on Andrew Osayande, but not on his wife who arrived in the State with him and

claimed refugee status in the State.

Andrew Osayande’s wife, with whom he resides, gave birth to Osaze Joshua Osayande, a son of the family, on the 4th October, 2001.

By reason of his birth in Ireland Osaze Joshua Osayande is a citizen of the State. Andrew Osayande is thus the father of an Irish

citizen and he wishes and intends to reside in the State. His wife has not been served with a deportation order and she wishes to

reside in the State until she is compelled to leave. The respondent has expressed his intention to deport Andrew Osayande and had

taken steps to do so prior to giving an undertaking not to do so pending the determination of these proceedings.

David Lobe, Jana Loveova, Aladar Lobe, Lukas Lobe, and Jana Lobe are Czech nationals who arrived in the State in March, 2001 and

claimed refugee status. The Minister has determined that their claim should be transferred to the United Kingdom pursuant to the

Dublin Convention. That decision was made pursuant to the Dublin Convention (Implementation) Order, 2001. The respondent has

served deportation orders on the applicants. Jana Loveova, with whom David Lobe, Aladar Lobe, Lukas Lobe and Jana Lobe reside,

gave birth to Kevin Lobe, a son of the family, on the 2nd November, 2001. Kevin Lobe, by reason of his birth in Ireland, is a citizen of

the State. Thus David Lobe and Jana Loveova are the parents of an Irish citizen and they wish and intend to reside in the State. The

respondent has expressed his intention to deport David Lobe, Jana Loveova, Aladar Lobe, Lukas Lobe and Jana Lobe and took steps to

do so prior to giving an undertaking not to do so pending the determination of these proceedings.

The reasons given by the Minister for refusing the application not to deport David Lobe were:

(i) the length of time the family has been in the State (a matter of months);

(ii) the Lobe family can adapt to the family’s return to the United Kingdom and the Czech Republic and their lives or well being

would not be endangered.

(iii) the application of the Dublin Convention; and

(iv) the need to preserve respect for and the integrity of the asylum and immigration systems.

The reasons given in the case relating to the Andrew Osayande were similar except that the second ground was not given.

6. The Judgment of the High Court

Smyth J. held in Andrew Osayande & Osaze Joshua Osayande v. Minister for Justice, (Unreported, High Court, 8th April, 2002), that

notwithstanding the very expansive range of reliefs sought in the elaborate grounds advanced in the documentation, that the case on

presentation to the High Court reduced itself to two broad issues – constitutional and the Dublin Convention. He found that the rights

invoked were:

(i) those of the citizen, the Irish-born child, (a) as an individual, and (b) as a member of a family unit; and

(ii) those of the family.

In his determination the learned High Court judge considered Fajujonu. He held, inter alia, that:

“The Applicants’ cases are clearly distinguishable from Fajujonu in the interval of time between the original determination and

the consideration as to whether to insist on the matter of deportation. I am satisfied and find as a fact that the most up-to-

date information was taken into account by the Minister and that the existence of the important constitutional rights of the

Irish-born child and the family have not been ignored or brushed aside, and that there has been a careful consideration of those

rights and a particular importance attached to them by reason of their constitutional origin; the memoranda clearly, by internal

reference to Tab A, B and C, in particular (ie, the representations made on behalf of the Applicants dated 7th December 2001),

and the consideration of the judgments in the cases of Osheku, Fajujonu, the referral of the Illegal Immigrants (Trafficking) Bill

and the matter of PB & L.”

The High Court refused the reliefs sought. However, pursuant to s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act, 2000 the High

Court certified that its decision involved points of law of exceptional public importance and that it was desirable in the public interest

that an appeal should be taken to the Supreme Court.

7. The Appeal

Against the order and judgment of the High Court the applicants have appealed. Twenty six grounds of appeal were set out. However,

these distilled down to the query as to whether the Minister may deport parents of an Irish citizen of tender years in the absence of

overwhelming conditions. It was conceded that the parents had no right of residence absent the child.

8. Sovereignty

Ireland is a sovereign, independent state. It is sovereign in its land. An integral part of sovereignty is the government of all the people

within its boundaries. The people within the State may have different status, capacity and social function. However, all persons are

subject to the law. It is an important feature of sovereignty for a nation to control people who seek to enter and stay within the

State. This is an aspect of government which is for the common good and for the protection of the nation. The nation is defended

and vindicated by the organs of state. All powers of government derive from the people and are exercised by and on the authority of

these organs of state, being the legislature, the executive and the judiciary. The necessity for the organs of State to control the

entry of non-citizens to the State is well recognised in our law. In Osheku v Ireland I.R. 733 at p. 746 Gannon J. stated:

“. . .

That it is in the interests of the common good of a State that it should have control of the entry of aliens, their departure, and

their activities and duration of stay within the State is and has been recognised universally and from earliest times. There are

fundamental rights of the State itself as well as fundamental rights of the individual citizens, and the protection of the former

may involve restrictions in circumstances of necessity on the latter. The integrity of the State constituted as it is of the

collective body of its citizens within the national territory must be defended and vindicated by the organs of the State and by

the citizens so that there may be true social order within the territory and concord maintained with other nations in accordance

with the objectives declared in the preamble to the Constitution.”

This statement was endorsed by the Supreme Court in Laurentiu v. Minister for Justice, [1999] 2 I.R. 27 and in In Re Article 26 of the

Constitution and the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360.

The concept of sovereignty is evolving. Decisions have been made in many countries, including Ireland, to share sovereignty on

certain issues. This may be illustrated in a number of ways. Policy decisions have been taken by the nation that sovereignty be

shared on specific matters. Thus, human rights are recognised in transnational treaties and institutions. Further, Article 2 of the

Constitution of Ireland, decided upon by the people, is a consequence of the Belfast Agreement made between Ireland and the United

Kingdom. Also, the Dublin Convention is a product of the European Union. The factual matrix as to immigration into Western Europe

has resulted in States joining together and sharing sovereignty between their nations and the European Union on certain issues for

mutual benefit. Thus the law and the Constitution reflect decisions on foreign policy and immigration made by the sovereign state for

the nation itself and in some areas in conjunction with other sovereign states for transnational policy.

9. Constitution of Ireland

Under the Constitution of Ireland every person born on the island of Ireland is part of the Irish nation. Thus, a child born on the island

of Ireland, its islands and seas, is entitled to Irish citizenship: Constitution of Ireland, Article 2. Other relevant rights under the

Constitution are those protecting personal rights, family rights, and individual rights to the family. Specific relevant articles include:

Article 40.3.1.:

“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights

of the citizen.”

Article 41:

“1◦ The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution

possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2◦ The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social

order and as indispensable to the welfare of the Nation and the State.ö

Article 42:

“1. The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the

inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and

social education of their children.”

10. Law - Statute

Section 6 of the Irish Nationality and Citizenship Act , 1956 provides:

“(1) Every person born in Ireland is an Irish citizen from birth.”

The law as to those who are not citizens has recently been modernised by the Oireachtas. Under Acts of the legislature a modern

scheme has been established, an updated asylum and immigration system. It is a system which provides to applicants rights of

application, appeal and further consideration on humanitarian grounds. Applicants have entitlements under the system.

In essence the application in this case is an application to obtain the right to reside in Ireland irrespective of the scheme established.

It is an application to by pass the scheme and to otherwise obtain rights. Thus the integrity of the system is in issue.

Over many decades the regulation and control of non-citizens was to be found in the Aliens Act, 1935. Today the modern legislative

scheme provides a system for applications, hearings and appeals by non-citizens who wish to stay in Ireland. The scheme is provided,

inter alia, in the Refugee Act, 1996, the Immigration Act, 1999, and the Irish Nationality and Citizenship Act, 2001.

The statutory law provides safeguards for applicants. Thus, for example, there are many factors which must be taken into account

before a deportation order is made. The Immigration Act, 1999 provides that (subject to the prohibition of refoulement, s. 5 Refugee

Act, 1996 and the provisions of the Act), the Minister may, by a deportation order, require a non-national to leave the State. A

deportation order may be made in respect of:

(a) a person who has served or is serving a term of imprisonment imposed on him or her by a court in the State,

(b) a person whose deportation has been recommended by a court in the State before which such person was indicted for or

charged with any crime or offence,

(c) a person who has been required to leave the State under Regulation 14 of the European Communities (Aliens) Regulations,

1977 (S.I. No. 393 of 1977),

(d) a person to whom Regulation 19 of the European Communities (Right of Residence for Non-Economically Active Persons)

Regulations, 1997 (S.I. No. 57 of 1997) applies,

(e) a person whose application for asylum has been transferred to a convention country for examination pursuant to section 22

of the Refugee Act, 1996,

(f) a person whose application for asylum has been refused by the Minister,

(g) a person to whom leave to land in the State has been refused,

(h) a person who, in the opinion of the Minister, has contravened a restriction or condition imposed on him or her in respect of

landing in or entering into or leave to stay in the State,

(i) a person whose deportation would, in the opinion of the Minister, be conducive to the common good.

Where the Minister proposes to make a deportation order he or she must notify the person concerned of the proposal and the reasons

for it. A person so notified may within fifteen working days make representations in writing to the Minister. The Minister shall, before

deciding the matter, take into consideration any representations made to him and notify the person of his or her decision. In

determining whether to make a deportation order the Minister shall have regard to:-

(a) the age of the person;

(b) the duration of residence in the State of the person;

(c) the family and domestic circumstances of the person;

(d) the nature of the person’s connection with the State, if any;

(e) the employment (including self-employment) record of the person;

(f) the employment (including self-employment) prospects of the person;

(g) the character and conduct of the person both within and (where relevant and ascertainable) outside the State (including

any criminal convictions);

(h) humanitarian considerations;

(i) any representations duly made by or on behalf of the person;

(j) the common good; and

(k) considerations of national security and public policy, so far as they appear or are known to the Minister.

Thus the Oireachtas has provided for a modern and extensive system applicable to non-nationals who wish to stay in Ireland. It is this

scheme, under the law and the Constitution, which is applicable to those who wish to apply to remain in Ireland today.

11. The Dublin Convention

The Dublin Convention is an illustration of an exercise of sovereignty by the State. It is an exercise clearly within the long established

rights and duties of the State. It is an act of foreign policy by the State. It is also an illustration of an exercise of sovereignty which

is becoming more frequent – a sharing of sovereignty amongst a group of nations for the benefit of the nations.

The Dublin Convention is an important factor for consideration by the Minister, when it is applicable. The Dublin Convention determines

the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities. The

objectives of the Convention include a common humanitarian tradition, the free movement of persons within the European Union, and

the avoidance of delay in applications for asylum. The parties to the Convention agreed:

“. . . in keeping with their common humanitarian tradition, to guarantee adequate protection to refugees in accordance with the

terms of the Geneva-Convention of 28 July 1951, as amended by the New York Protocol of 31 January 1967 relating to the

Status of Refugees, hereinafter referred to as the ‘Geneva-Convention’ and the ‘New York Protocol’ respectively;

CONSIDERING the joint objective of an area without internal frontiers in which the free movement of persons shall, in particular,

be ensured, in accordance with the provisions of the Treaty establishing the European Economic Community, as amended by the

Single European Act;

AWARE of the need, in pursuit of this objective, to take measures to avoid any situations arising, with the result that applicants

for asylum are left in doubt for too long as regards the likely outcome of their applications and concerned to provide all

applicants for asylum with a guarantee that their applications will be examined by one of the Member States and to ensure that

applicants for asylum are not referred successively from one Member State to another without any of these States

acknowledging itself to be competent to examine the application for asylum;

DESIRING to continue the dialogue with the United Nations High Commissioner for Refugees in order to achieve the above

objectives;

DETERMINED to co-operate closely in the application of this Convention through various means, including exchanges of

information,

TO CONCLUDE THIS CONVENTION . . .”

Under the Dublin Convention the application of any non-citizen shall be examined by a Single Member State, determined in accordance

with the criteria defined in the convention. There are a number of criteria set out. Article 7 provides that the responsibility for

examining an application for asylum shall lie with the Member State responsible for controlling the entry of the non-citizen into the

territory of the Member States. To this there are exceptions and qualifications but it is the primary provision. Under s. 22 of the

Refugee Act, 1996 the Minister for Justice, Equality and Law Reform may make such orders as appear to him to be necessary or

expedient for the purpose of giving effect to the Dublin Convention.

12. Case Law - Ireland

The issues of sovereignty, non-nationals and family rights under the Constitution have been addressed in previous cases. Those

judgments are useful precedents. I have already referred to Osheku v Ireland [1987] I.L.R.M. 330 and the judgment of Gannon J.

insofar as it considered the issue of national sovereignty and non-nationals. However, constitutional rights of the family were also in

issue in that case. In Osheku the facts were that the plaintiff, a non-national, arrived in Ireland on the 11th June, 1979 and was

permitted to land for one month provided he did not take up employment. In breach of the conditions he did remain in Ireland after

the 11th July, 1979 and he did take up employment. On the 26th June, 1981 the plaintiff married and on the 4th June, 1982 a child

was born. In August, 1982 the plaintiff ceased work and registered for social welfare unemployment assistance. On numerous

occasions from January, 1980 the plaintiff was asked by the Minister to leave the country. A meeting was held between the parties in

January 1982 when it was confirmed that the plaintiff by taking employment in the State was in breach of the condition of entry to

the State. This was a ground for his proposed deportation. The plaintiff engaged a solicitor and there was a lengthy correspondence

between his legal representative and the Minister. By letter dated the 15th March, 1983 the Minister informed the plaintiff that he

could not remain in the State after the 30th April, 1983 unless he could produce evidence that he could maintain himself and his

dependents from his own resources. The plaintiff did not produce such evidence nor did he leave the country. The plaintiff then

instituted proceedings claiming constitutional rights. The High Court (Gannon J.) at pp. 343/4 held of the plaintiff:

“He cannot, in my opinion, by a marriage within the State recognised as lawful, acquire a status of citizenship nor immunity from

the sanctions of the law in respect of his continued disobedience to the law. His marital status and the familial relations created

by that lawful marriage can be recognised and protected by the State ‘in its Constitution and authority’ while applying to him

sanctions for non-compliance with the law. In my opinion the prosecution of Mr. Osheku for offences committed contrary to the

provisions of the Aliens Act 1935, or his deportation pursuant to the powers conferred on the Minister for Justice, if such be his

determination in the exercise of his discretion, would not constitute an infringement of any of the constitutional provisions for

the protection of marriage and the family.

...

The constitutional guarantees for the protection of the marriage and the family are relied upon by all three plaintiffs . . . as the

basis for their challenge to the authority conferred on the Minister for Justice by the legislature in his discretion to deport the

first named plaintiff. The Constitution does not impose on the citizens a duty or obligation to remain resident within the State,

no does it impose on the State a duty to provide a place of residence within the State for every citizen. . . . It is conceded

that if and so long as Mr,. Osheku remains resident in the State there is no interference with any of the constitutional rights

asserted. It follows that if, in his discretion, the Minister should decide against deportation . . . the question of whether the

Aliens Act and orders are or are not consistent with the Constitution does not arise. Whether Mr. Osheku and his family will, if

permitted lawfully so to do, remain in the State is so dependent upon many factors, including social and economic ones not yet

fully considered, that their present declared intentions are not a sound basis for court proceedings and declarations.”

In Pok Sun Shun v. Ireland [1986] I.L.R.M. 593 the relationship between state sovereignty, and family rights was also addressed.

Costello J. held at p. 596/7:

In sub-paragraph (d), it is claimed that, ‘the Aliens Order (SI No. 395 of 1946) and the Aliens (Amendment) Order (SI No. 128 of

1975) do not empower the Minister in view of Articles 40, 41 and 42 of the Constitution to control the duration of stay and/or

engagement in business of the first-named plaintiff within the State and otherwise control or prohibit the movements within

and/or departure from and re-entry into the State of the first-named plaintiff. There have been slightly different submissions

made on this by counsel for the plaintiffs, and I think I should deal with them separately. Mr. Gaffney SC submitted on behalf of

the plaintiffs that because of the very entrenched provisions of the family rights in the Constitution, these could not be

trenched upon, in any way, by the State and, in particular, by the Aliens Order. He went so far as to answer a question I put,

to say that if an alien landed in the State on one day and married the next day to an Irish citizen in the State, the State was

required, by the Constitution, to safeguard the rights which were given to the family, and these could not be taken away by

the Aliens Act 1935. In other words, the order made under the Aliens Act 1935 was unconstitutional. I cannot accept that

view. I do not think that the rights given to the ‘family’ are absolute, in the sense that they are not subject to some

restrictions by the State and, as Mrs. Robinson SC has pointed out, restrictions are, in fact, permitted by law, when husbands

are imprisoned and parents of families are imprisoned and, undoubtedly, whilst protected under the Constitution, these are

restrictions permitted for the common good on the exercise of its rights. It seems to me that the Minister’s decisions and the

Act, and orders made under it are permissible restrictions and I cannot hold that they are unconstitutional.”

I am satisfied that this is a correct statement of the law. The rights given to the family are not absolute. There may be restrictions

permitted for the common good.

In the submissions made in this case great reliance was placed by the parties on Fajujonu v. The Minister for Justice [1990] 2 I.R.

151. All parties referred in detail to Fajujonu. It was at the core of the High Court’s decision. In summary, the facts of that case were

that the first and second plaintiffs were Nigerian and Moroccan citizens respectively who were married in London in 1981. Shortly

thereafter they moved to Ireland. The third plaintiff of the case was born in Ireland in September, 1983 and acquired Irish citizenship.

The first two named plaintiffs did not inform the Minister that they were in Ireland. In December, 1983 Dublin Corporation allocated

the first two plaintiffs a three bedroomed house. Two further children were born in Ireland and thus acquired Irish citizenship. The first

plaintiff came to the notice of the Minister for Justice when seeking a work permit for employment in Ballyfermot. The Minister for

Labour refused to grant him a permit because of his status as an unauthorised alien. The Minister for Justice requested the first two

plaintiffs to make arrangements to leave the country and stated that one of the reasons they were being refused permission to stay

was because the first plaintiff was unable to support the family without assistance from the State. The plaintiffs commenced

proceedings seeking orders restraining their deportation and declarations that they were entitled to reside in the State. The High

Court (Barrington J.) refused the reliefs sought. Barrington J. stated at pp. 156/7 inter alia, that:

“The present case appears to me to raise much more complex issues. I am prepared to accept that the child has, generally

speaking, a right, as an Irish citizen, to be in the State. I am also prepared to accept as a general proposition that the child has

the right to the society of its parents. But does it follow from this that the child has the right to the society of its parents in

the State? If, for instance, the parents were to decide that they wished to emigrate to Australia could the child, as a general

proposition, be heard to say that it did not wish to go to Australia and that moreover it wished to have the society of its

parents in Ireland.

...

It is clear from this that the Constitution does not contemplate the family as existing in isolation but regards it as living in a

larger community or society in which the State has a role to play as the guardian of the common good. Moreover, Article 40 of

the Constitution clearly contemplates that a citizen may under certain circumstances be deprived of his personal liberty, or

even of his life, notwithstanding the fact that this may have tragic repercussions or innocent members of his family who may be

deprived of his society and his support. In interpreting the Constitution it appears to me to be important to preserve the

balance which the Constitution itself contemplates. Whatever the ‘inalienable and imprescriptible’ rights of the family may be,

they hardly comprise the right to dictate the foreign policy of the State. It appears to me that the control of the circumstances

under which aliens may live or work in Ireland and the making of arrangements for rights of free travel between this and other

countries are peculiarly matters within the competence of the Oireachtas and the Government and that they are matters into

which these courts should be slow to enter.

In the present case the parents never had a right to live or to work in Ireland. The child clearly has a certain right to be in

Ireland. She also has a right to the society of her parents. But it does not follow from this that she has a right to the society of

her parents in Ireland. I do not think that the parents can be positing on their child a wish to remain in Ireland in their society

confer upon themselves a right to remain in Ireland such as could be invoked to override legislation passed by the Irish

parliament to achieve its concept of what the common good of Irish citizens generally requires.

...

In the circumstances it appears to me that the plaintiffs are not entitled to any of the reliefs claimed.”

The plaintiffs appealed. The Supreme Court dismissed the appeal with no order as to costs, and the plaintiffs were given liberty to

apply to the High Court in the proceedings (to include any appropriate amendment of proceedings) if they wished to challenge any

further act or omission on the part of the Minister for Justice with regard to the granting or refusing of a permit to remain in the

country. The Supreme Court, in two judgments, analysed the issues of the case. In effect the case went back to the Minister for

Justice for reconsideration. It is clear that the court considered the facts in the Fajujonu case to be of critical importance. The length

of time the applicants were in the State, the birth of the children in Ireland, the granting of a house to the applicants, were just

three of the important factors in their favour. However, even given those facts, and the constitutional principles involved, the court

refused the application and indicated that it was for the Minister to consider all the relevant facts.

Finlay C.J., at p. 163 concluded his judgment with the words:

“In these circumstances, I am satisfied that the protection of the constitutional rights which arise in this case require a fresh

consideration now by the Minister for Justice, having due regard to the important constitutional rights which are involved, as far

as the three children are concerned, to the question as to whether the plaintiffs should, pursuant to the Act of 1935, be

permitted to remain in the State. I am, however, satisfied also that if, having had due regard to those considerations and

having conducted such inquiry as may be appropriate as to the facts and factors now affecting the whole situation in a fair and

proper manner, the Minister is satisfied that for good and sufficient reason the common good requires that the residence of

these parents within the State should be terminated, even though that has the necessary consequence that in order to remain

as a family unit the three children must also leave the State, then that is an order he is entitled to make pursuant to the Act of

1935. The fact that he is so entitled does not, in my view, render the Act of 1935 inconsistent with the Constitution. There are

no grounds, in my view, on the facts proved in this case nor arising from the attitude taken on behalf of the Minister in this

case which would warrant this court in concluding that the Minister and his officers would carry out the functions which now

remain to be carried out by them pursuant to the Act of 1935 otherwise than in accordance with fair procedures and having

regard to the rights which have been identified in the judgments of this court.”

Griffin J. stated that he agreed with the judgments of Finlay C.J. and Walsh J., Hederman J. and McCarthy J. agreed.

I am satisfied that the kernel of the Fajujonu decision is the test set out in the above quoted paragraph of the Chief Justice. There

must be an appropriate inquiry as to the facts and factors affecting the family in a fair and proper manner. To deport the plaintiffs the

Minister should be satisfied that for good and sufficient reason the common good requires that the residence of the parents within the

State should be terminated, even though it has the necessary consequence that in order to remain as a family unit the children must

also leave the State.

Important factors relevant to the judgments of the Supreme Court in Fajujonu were as follows: (a) The Supreme Court did not hold

that the learned trial judge had been in error in his judgment. Finlay C.J. referred to it as ‘the very careful judgment of Barrington J.’

(b) The appeal proceeded on grounds different to those argued in the High Court. Finlay C.J. explained the situation at p. 161-162:

“The decision of Barrington J. was that whilst he clearly recognised and accepted the existence of constitutional rights in the

third plaintiff, arising from her citizenship of the State, that on the authorities which he reviewed and in particular, having

regard to the decisions in the High Court of Gannon J. in Osheku v. Ireland [1986] I.R. 733 and by Costello J. in Pok Sun Shun v.

Ireland [1986] I.L.R.M. 593 and his own decision in The State (Bouzagou) v. Station Sergeant, Fitzgibbon St. [1985 I.R. 426,

that the family and other constitutional rights of the third plaintiff were not absolute and could be restricted by the proper

exercise by the Minister for Justice of the powers conferred on him under the Act of 1935. It was on that basis that the learned

trial judge dismissed the plaintiffs’ claim.

When the matter came before this Court on appeal the case really made on behalf of the plaintiff by Mr. McDowell was not an

assertion of the absolute right incapable of being affected by the provisions of the Act of 1935, but rather the assertion of a

constitutional right of great importance which could only be restricted or infringed for very compelling reasons. Notwithstanding

the fact that this was not the case which had been made in the court below, and notwithstanding the fact that it is difficult to

fit it comfortably within any of the grounds of appeal which were contained in the notice of appeal, in the interests of justice

this Court considered this submission and argument and the reply of the respondents to it.”

(c) The appeal was dismissed by the Supreme Court, albeit with a view to the Minister reconsidering the facts. (d) The decision was

facts based. (e) The facts of Fajujonu were considered very significant, these included: (i) the fact that applicants had been in the

State for many years, (ii) three children of the family had been born in Ireland, (iii) the applicants had made a home in Ireland, (iv)

the husband had an offer of a job. (f) Further, Fajujonu was decided under the Aliens Act, 1935, that is prior to the modern legislative

scheme which gives more extensive procedures and protection to an applicant. (g) Finally, the Dublin Convention came into existence

subsequent to Fajujonu and this had no relevance to Fajujonu but is applicable to the cases now before the court.

Fajujonu was a facts based complex judgment. It may be that on occasion a wrong view has been taken of the ratio decidendi of

that case. It may be that on an erroneous view it was considered to be a route to take as a short cut through the system, that it

was used to undermine the integrity of the system.

I am satisfied that the learned trial judge in this case was correct to distinguish Fajujonu. I would affirm his decision. Fajujonu was a

decision on the facts of the case. It did not alter the law as previously outlined in common law in Ireland.

13. Case Law - elsewhere

This balance to be achieved between family rights and immigration controls is a matter which has been subject to litigation

throughout the States of the European Union, the Court of Justice of the European Communities, the European Court of Human

Rights, and other courts. For example, in the United Kingdom in The Queen ota Mahmood v. SSHD [2001] UKHRR 307 the issues were

considered. Lord Phillips held, at p. 329:

“(55) From these decisions I have drawn the following conclusions as to the approach of the Commission and the European

Court of Human Rights to the potential conflict between the respect for family life and the enforcement of immigration controls:

(1) The State has a right under international law to control the entry of non-nationals into its territory, subject always to its

treaty obligations.

(2) Article 8 does not impose on a State any general obligation to respect the choice of residence of a married couple.

(3) Removal or exclusion of one family member from a State where other members of the family are lawfully resident will not

necessarily infringe Article 8 provided that there are no insurmountable obstacles to the family living together in the country of

origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family.

(4) Article 8 is likely to be violated by the expulsion of a member of a family that has been long established in a State if the

circumstances are such that it is not reasonable to expect the other members of the family to follow the member expelled.

...

(5) Whether interference with family rights is justified in the interests of controlling immigration will depend on:

(i) the facts of the particular case and

(ii) the circumstances prevailing in the State whose action is impugned.”

While our constitutional framework is different, this is a useful analysis of the law in a neighbouring jurisdiction and indicates a

balancing of rights between State and family. That family rights are not absolute according to the European Convention for the

Protection of Human Rights and Fundamental Freedoms was made clear in Poku v. United Kingdom, 22 E.H.R.R. CD 94. At CD 97 the

Commission recalls:

“. . . according to its established case law that, while Article 8 of the Convention does not in itself guarantee a right to enter or

remain in a particular country, issues may arise where a person is excluded, or removed from a country where his close relatives

reside or have the right to reside . . .

However, the Commission notes that the State’s obligation to admit to its territory aliens who are relatives of persons resident

there will vary according to the circumstances of the case. The Court has held that Article 8 does not impose a general

obligation on States to respect the choice of residence of a married couple or to accept the non-national spouse for settlement

in that country (ABDULAZIZ, CABALES AND BALKANDALI judgment (1985) 7 E.H.R.R. 471, para. 68). The Commission considers

that this applies to situations where members of a family, other than spouses, are non-nationals. Whether removal or exclusion

of a family member from a Contracting States (sic) is incompatible with the requirements of Article 8 will depend on a number of

factors; the extent to which family life is effectively ruptured, whether there are insurmountable obstacles in the way of the

family living in the country of origin of one or more of them, whether there are factors of immigration control (e.g. history of

breaches of immigration law) or considerations of public order (e.g. serious or persistent offences) weighing in favour of

exclusion (see, e.g. Nos. 9285/81. Dec. 6.7.82., D.R. 29 p. 205 and 11970/86, Dec. 13.7.87. unpublished).”

14. Decision.

The kernel of these cases requires a decision balancing rights of the Nation, of individuals and of the family unit. Counsel for the

applicants queried whether the Minister for Justice, Equality and Law Reform may deport parents of an Irish citizen of tender years in

the absence of overwhelming conditions. Do the children have a constitutional right to have the company and care of their parents in

Ireland given their age?

(1) Personal Rights

The children in these cases have personal rights. However, they are not absolute rights. They are rights which have to be weighed to

achieve a proportionate decision. In Osheku v. Ireland [1986] I.R. 733, at p. 746, Gannon J. held:

“It seems to me to follow that personal rights guaranteed under the Constitution are not so absolute as to be capable of being

considered entirely independently of the overall provisions of the Constitution. The personal liberty of the citizen is probably the

greatest of the fundamental freedoms. It must be in the interests of social order and the common good from time to time in

individual cases to restrict the freedom of movement of a citizen within the State, as for instance by imprisonment or

hospitalisation. This necessity may prevail over the related constitutional rights of members of the family of the individual

concerned notwithstanding the recognition in the Constitution of the family as:

‘. . . the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and

imprescriptible rights, antecedent and superior to all positive law . . .’

and

‘. . . as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.’

(See Article 41.1.1◦ and 2◦.)ö

I would affirm and apply such an approach. Personal rights guaranteed under the Constitution are not absolute, social order and the

common good may require restriction of such rights.

(ii) Citizens

The Irish citizenship of the children is not contested. The right arises both under legislation, the Irish Nationality and Citizenship Act,

1956 s. 6, and the Constitution of Ireland, Article 2. The children are Irish citizens and this is a benefit, a property, they have and

may utilise during their lives. However, the fact of citizenship does not of itself resolve the issues for determination.

(iii) Right of Residency

I am satisfied that the children born in Ireland have a right of residence in Ireland. As the children in these cases are of very tender

years this right may be asserted by their parents. However, the fact that they may reside in Ireland does not resolve the cases. The

decision as to where the children reside may not be made by the children – they are of very tender years. Such a decision, of family

residency, is usually taken by the parents of children. The parents’ decision is determinative in relation to the children. While decisions

in relation to the child are made by the parents, parental decisions are subject to the law of the land. Thus, the parents in these

cases, who are not Irish citizens and have no right of residency in Ireland, cannot themselves decide to be Irish citizens or decide to

reside in Ireland. Such decisions are for the appropriate governmental authorities to make in accordance with law.

(iv) Right to care and company of parents

The children have a right under the Constitution to the society, the care and company of their parents. The rights of the child as a

member of a family were described in Re J.H. (inf.) [1985] I.R. 375. Finlay C.J. held, at page 394, that an infant had the following

rights as a member of a family:-

“(a) to belong to a unit group possessing inalienable and imprescriptible rights antecedent and superior to all positive law

(Article 41, s.1);

(b) to protection by the State of the family to which it belongs (Article 41, s.2) (sic); and

(c) to be educated by the family and to be provided by its parents with religious, moral, intellectual, physical and social

education (Article 42, s. 1).

It is presumed that the welfare of a child is best met in the family. This is a presumption which is rebuttable, but it is a presumption

based on fundamental principles laid down in the Constitution. This right of the child to the society, and care and company of

parents, may be protected by residence elsewhere. The parents may decide to reside outside Ireland and bring their children with

them. Thus the right of the child to the care and society of parents may be protected outside this jurisdiction.

(v) Rights to the Family

The family is the fundamental unit group of our society. It has a special place recognised and enhanced by the Constitution. The

family benefits from the rights and guarantees established in Articles 41 and 42 of the Constitution. The decisions in families with

young children are made by parents. In North Western Health Board v. HW and CW 3 I.R. 622 at p. 722 I stated:

“The Constitution clearly places the family as the fundamental unit of the State. The family is the decision maker for family

matters – both for the unit and for the individuals in the family. Responsibility rests fundamentally with the family. The people

have chosen to live in a society where parents make decisions concerning the welfare of their children and the State intervenes

only in exceptional circumstances.”

However, the rights of the family are not absolute. They have to be determined in balance with other conflicting rights and principles,

in accordance with constitutional principles. Thus a citizen may be imprisoned by a court under the law and separated from his family.

The family, the convicted person, and all members of the family, suffer as a consequence of the separation. But the separation is

constitutionally valid. In other words for good legal reasons decisions may be made by courts which result in separating families.

The family is the fundamental unit group of the State but the State governs, not the family. The rights of the family are not absolute.

The State by its laws, made for the common good, may so order society as to restrict family life in Ireland. The family is the primary

unit group – but it is a unit of the State. The State may make appropriate laws which may impinge upon the family for the common

good.

The Constitution of Ireland contemplates a balance of rights, of persons and of organs of the State. Thus the State determines the

foreign policy of the nation, and this may include agreed European Union policy. Historically and constitutionally foreign policy is a

matter for the executive and the legislature. The courts protect and vindicate constitutional rights. However, such rights are not

absolute. They are subject to the law and the Constitution, to matters such as public order, the common good and proportionality.

In these cases the two minor children are citizens of Ireland. I am satisfied that as a consequence they are entitled to reside in

Ireland. They also have the right to the society, the care and company of their parents. However, the rights of the children are not

absolute. They are protected in a proportionate fashion. It does not follow from the rights of citizenship and residency of a minor child

that he has a right to the society, the care and company of his parents in Ireland. Nor does it follow that the family of such a child as

a unit has, or the parents or siblings have, a right to reside in Ireland.

The applicants laid great emphasis on the judgments in Fajujonu. It is clear from that case that the court regarded the facts of that

case as critical. Even then the court refused the declarations sought. However, it is clear that in any Ministerial decision in that case

the issues such as the length of time the plaintiffs were in Ireland, the fact that the three children had been born in Ireland, the fact

that the plaintiffs had been offered a house by Dublin Corporation, amongst others, were all weighty factors for the Minister to

consider.

These cases are very different. First, the facts and circumstances are very different. Secondly, these cases fall for analysis at a

different time, they are to be analysed under a different legislative scheme; a legislative scheme under which the applicants may

apply and appeal, a scheme giving to the applicants more rights than existed previously. Thirdly, the State is now a party to the

Dublin Convention.

The citizenship of the child is recognised and protected. However, it is not a factor which overrides all else. The family of the child is

still a unit. But the rights given to the family are not absolute. There are restrictions permitted for the common good. Other factors,

such as the fact that the members of the family are non-nationals, their history, social and economic factors, and their status in the

immigration process, and foreign policy, are all relevant.

The family unit is the fundamental unit group of society. It may make decisions for its benefit. The parents make decisions for the

benefit of the unit and the children. However, the unit itself is subject to the Constitution and the law and to restrictions established

in law and the Constitution for the common good. The Constitution underpins a balanced society in which decisions should be

determined with proportionality.

15. Standard of Review on Judicial Review

The standard of review on the judicial review in the High Court was pursuant to State (Keegan) v. The Stardust Victims

Compensation Tribunal [1986] I.R. 642 and O’Keefe v. An Bord Pleanala [1993] 1 I.R. 39 at 76. No question was raised before this

court as to the applicability of such a test. Consequently the standard of judicial review was not an issue on this appeal. In recent

years the applicability of this test to cases such as this has been queried. In Z v. Minister for Justice and Ors. (Unreported, Supreme

Court, 1st March, 2002), in concurring with the judgment of McGuinness J., I agreed that further consideration must await a fuller

argument on the issue of the test to be applied in judicial review of cases of this type. The degree of review in cases where a

decision of a public authority may interfere with a fundamental right of a person was not before this court in these appeals and I

await a full argument on the issue.

16. Conclusion

I am satisfied that the learned trial judge correctly distinguished Fajujonu and refused the relief sought. I would affirm the order and

judgment of the High Court.

The Minister is obliged to consider the facts of each case by an appropriate inquiry in a fair and proper manner as to the facts and

factors affecting the family. If the Minister is satisfied for good and sufficient reason that the common good requires that the

residence of the parents within the State should be terminated, even though that has the necessary consequence that in order to

remain a family unit the child who is an Irish citizen must also leave the State, then that is an order he is entitled to make. The child

has rights of citizenship and as a consequence he or she also has rights of residence in Ireland. He or she also has the right to the

society, care and company of his or her parents. However, it does not flow from the rights of the child that the family or parents and

siblings of Irish children have the right to reside in Ireland. It is for the Minister to weigh the factors in a fair and just manner in each

case in accordance with the law and the Constitution. The Minister may deport parents if he is satisfied that for good and sufficient

reason the common good requires that the residence of the parents within the State should be terminated, even though that has the

necessary consequence that in order to remain a family unit the child who is an Irish citizen must also leave the State. It is

appropriate in balancing all the factors of a case to place weight on the time factor, the integrity of the immigration system and the

Dublin Convention.

Even if the children do not reside in Ireland they retain their rights as citizens of Ireland. They retain this property, this right, and may

benefit from it, for example at a later date by residing in Ireland, by obtaining an Irish passport, by voting, etc. The fact that they are

Irish citizens may benefit not only themselves but their descendants.

In conclusion, the Irish citizenship of a minor child does not give rise to an absolute right to have his or her family, parents or siblings,

reside in Ireland. Reasons by the Minister for refusing not to deport the family of an Irish citizen of tender years will depend upon the

circumstances of each case but may include: (a) the length of time the family has been in the State; (b) the application of the Dublin

Convention; and (c) the overriding need to preserve respect for and the integrity of the asylum and immigration system.

For the reasons given in this judgment I am satisfied that the appeals should be dismissed and the orders of the High Court affirmed.