IESC 3 · Supreme Court

THE SUPREME COURT

Record No. 109/02 108/02

Keane C.J.

Denham, J.

Murray, J.

McGuinness, J.

Hardiman, J.

Geoghegan, J.

Fennelly, J.

BETWEEN

DAVID LOBE, JANA LOBE, ALADAR LOBE (A MINOR SUING BY THIS HIS FATHER AND NEXT FRIEND, DAVID LOBE) JANA LOBE

(A MINOR SUING BY HIS FATHER AND NEXT FRIEND, DAVID LOBE) AND KEVIN LOBE (A MINOR SUING BY HIS MOTHER AND

NEXT FRIEND, JANA LOVEOVA

APPLICANTS/APPELLANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

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 the 23rd day of January, 2003 by Murray, J.

The State may, for reasons associated with the interests of the common good, deport non-nationals who are the parents of a child

who is a citizen of Ireland even if that means, defacto, that the child is compelled to leave and reside outside the State with its

parents.

That statement regarding the law is common to the arguments all the parties in these proceedings. It is one which emerges clearly

from the judgments of this Court in Fajujonu -v- Minister for Justice [1990] 2IR 151 upon which the parties have based their primary

arguments.

The issues in this appeal focus on the ambit of the power of the State to deport parents in such circumstances and in particular the

criteria which may be applied by it when seeking to exercise such a power of deportation in the interests of the common good. It was

not argued that non-national parents of infant citizens have an absolute right to remain in the State. The Appellants argue that the

Fajujonu case should be applied to their circumstances without distinction but in accordance with the interpretation of the judgments

in that case advanced on their behalf which included an assertion that the Minister may not take into account “ordinary immigration

reasons” as a ground for deporting the parent Appellants. The Minister on the other hand submits that the Fajujonu case is

distinguishable having regard to do the particular facts and circumstances which prevailed in that case and certain principles referred

to in the judgments have only limited application to the circumstances of the present case. Neither side asked the Court to overrule

Fajujonu.

Background Facts:

The appeal concerns two cases which were heard and determined together in the High Court. The first case is concerned with the

position of the Lobe family and the second with that of the Osayande family.

Mr and Mrs Lobe, Czech citizens, arrived in Ireland with their three children on March 31st, 2001. Shortly afterwards they applied for

asylum within the State and it transpired that they had previously applied for asylum in the United Kingdom. In these circumstances

the Refugee Applications Commissioner, on July 24, 2002, ruled that the application for asylum made by the Lobe family should not be

examined by the State but should be examined and determined in the United Kingdom pursuant to Article 8 of the Dublin Convention,

the Inter-Governmental Convention determining the state responsible for examining applications for asylum lodged in one of the

Member States of the European Communities.

An appeal was lodged by the Lobe family to the Refugee Appeals Tribunal on the grounds, inter alia, that Mrs Lobe was pregnant and

was experiencing serious medical complications with the pregnancy. The tribunal refused the appeal on the 29th August, 2001.

Deportation orders were made in respect of the Lobe family on the 26th September, 2001. Subsequently these proceedings were

initiated and the Minister agreed not to give effect to those orders pending the outcome of these proceedings. On the 2nd November,

2001, Mrs Lobe gave birth to a child, Kevin Lobe, one the Plaintiffs in these proceedings. Subsequent to the birth of the child the

Minister invited the Lobe family to make further representations having regard to the birth of the child. Following upon these

representations a report was prepared was made by Mr John Lohan, Principle Officer, Immigrant Division. Having regard to this report

the Minister confirmed the original deportation orders and the Applicants have sought to set aside this further decision in these

proceedings.

As regards the second case, Mr and Mrs Osayandes arrived in the State on 6th May, 2001 along with their three year old daughter.

They are Nigerian nationals. They also applied for asylum and their case followed a similar course to that of the Lobe family. Mr

Osayande had previously made an application for asylum in the United Kingdom and the Refugee Applications Commissioner refused the

Application on the grounds that any application for asylum fell to be examined and determined in the United Kingdom pursuant to

Article 8 of the Dublin Convention. The relevant decisions were appealed to the Refugee Appeals Tribunal on grounds, inter alia, that

Mrs Osayande was pregnant and bedridden. The appeal was rejected on 29th August, 2001 and in due course a deportation order was

made by the Minister in respect of Mr Osayande. It would appear that no decision has yet been made in respect of Mrs Osayande or

her daughter but nothing turns on this.

On 4th October, 2001 Mrs Osayande gave birth to a son, Osaze. Subsequently the case followed the same course as in the Lobe case

with the Minister confirming the deportation order having regard to the memorandum prepared by Mr Lohan.

The Lohan Memorandums:

In the Lobe case the Memorandum of Mr Lohan acknowledged that “the deportation of the Lobe family could result in the removal of

Kevin,, an Irish citizen from the state in circumstances which could be interpreted as a constructive deportation,” and went on to

propose that “The Minister should weigh up the rights of that Irish citizenship against the needs of the common good.” At paragraph

9 it was stated “It is accepted that Kevin is an Irish citizen and may have rights to reside in the State. It would also appear that he

would have protection of the Constitution in terms of guaranteeing him the right to the company, care and parentage of his

family/parents. However, against these factors are the need for the Minister to preserve the integrity of and the respect for the

State’s asylum and immigration laws. TheLobe family have not been in the State for a lengthy period – they arrived in March, 2001,

a period of nine months. They applied for asylum in the State even though Mr Lobe, Ms Lobeova and three dependent children had

already applied for asylum in the U.K. …”

At paragraph 11 it states “On balance, the interests of the common good and of the protection of the State through seeking to

preserve the respect for and the integrity of the asylum and immigrations systems are seen in this case as outweighing the

countervailing claims which the Irish born child and consequently his family have made to the Minister.”

The memorandum then went on to make a recommendation on the following terms at paragraph 13 “I believe that it is in the common

good that the Deportation Order made in respect of this family should be affirmed. The interests of maintaining the common good

outweigh any claims made on behalf of the Lobe family. The common good would be ensured through the Minister having as his

priority the protection of the asylum and immigrations systems in the absence of sufficiently strong features to ignore that priority.”

In the ensuing paragraph it was stated “On the basis of the family protection claimed by the Applicants, it should be presumed that

the Applicants would preserve the family unit on enforcement of the orders by taking Kevin with them, thereby preserving his right

to the care and protection of his family as per Article 41 of the Constitution.” A similar approach was adopted in Mr Lohan’s

memorandum in the Osayande case and in each case the memorandum went onto set out the concluding reasons for the

recommendation to the Minister, and which were adopted by him, namely: -

The length of time the family has been in the State;

The Application of the Dublin Convention;

The overriding need to preserve respect for and the integrity of the asylum and immigrations systems.

There was one additional reason given in the Lobe case, “the Lobe family and Kevin Lobe can adapt to the family’s return to

the United Kingdom and the Czech Republic and that their lives or wellbeing would not be endangered.”

Arguments of the Parties:

Counsel for the Appellants contended that the issue at the heart of the joint appeals is the question whether the Minister may

deport the parents of Irish children of tender years “In the absence of special and overwhelming circumstances”. It follows

from the judgments of Finlay, C.J., Walsh, J. in the Fajujonu case that such special and overwhelming circumstances associated

with the common good must exist before the Minister can exercise his power to deport in such cases. The reasons relied upon

the Minister and set out in the Lohan Memorandums can best be described as standard and orthodox immigration reasons and

do not constitute the special or particular reasons envisaged by the aforementioned judgments.

The Fajujonu case falls to be applied without distinction to the position of the Appellants in this case and the learned High Court

Judge erred in distinguishing the Fajujonu case from this case.

Infant citizens, it was submitted, have an unqualified right to reside in the State. That is protected by Article 2, Article, 9,

Article 40.1 and Article 40.3 of the Constitution. It is a fundamental, absolute and imprescriptible right of citizenship, Walsh J.,

having found in Fajujonu, that citizens of the State may not be deported.

Allied to the foregoing right, an infant citizen has the right to have the care and company of its parents in the State. It is only

with such care and company that an infant citizen can effectively exercise or enjoy his or her right to reside in the State.

Furthermore, to deny a citizen the care and company of his or her parents and family would be an attack on the integrity of the

family and the rights of an infant as a member of that family as identified by Finlay, C.J. in Re: J.H. (an infant) [1985] I.R. 375

and in North Western Health Board –v- H.W. and C.W. [2001] 3.I.R. 622. It is a fundamental principle of Article 41 that the

family has a right to remain together and that any State measure which has the effect, direct or indirect, of breaking up the

family constitutes an attach on the integrity of the family and a breach, prima facia, of Article 41. Similarly the removal of the

family from the State must amount to a breach of the State’s obligation under Article 42.

It was further submitted that while the exceptional circumstances associated with the common good which might justify the

deportation of the non-national parents of infants who are citizens were not expressly set out in Fajujonu, it is clear that a

general desire to maintain the integrity of the immigration or asylum systems would not constitute such a reason. The learned

High Court Judge erred in holding that the integrity of the immigration could constitute such a reason. It is clear from the

judgment of both Finlay, C.J. and Walsh, J. in Fajujonu that any routine immigration reason would not in itself suffice to justify

deportation orders in such circumstances. Walsh, J. appears to have envisaged that the deportation of the parents might be

justified where they pose a threat to security or had engaged serious criminal wrongdoing but not otherwise. The application of

the Dublin Convention could not be considered as a “grave and substantial reason” within the meaning of the Fajujonu case.

The Convention does not oblige the State to transfer an individual to another convention country for the purpose of having his

application for asylum examined. Although the State maybe obliged under the Convention to accept the transfer of an individual

from another convention country, it has a discretion whether or not to transfer an Applicant for asylum to another convention

state. In any event the Dublin Convention must be operated subject to rights protected by the Constitution.

On behalf of the Minister it was acknowledged that the respective infant children in question were Irish citizens but the issue

was whether such citizenship necessarily confers an automatic right of residence on the parents and siblings of such a child.

The State had an inherent and constitutional right to control the entry of non-nationals and their departure from the State in

the interest of the common good. This was recognised in a number of cases including Osheku –v- Ireland [1968] I.R. 733, Poke

Sun Shun –v- Ireland [1986] I.L.R.M. 593, Laurentiu –v- Minister for Justice [1999] 4.I.R. 27 and In Re Article 26 of the

Constitution and the Illegal Immigrants (Trafficking) Bill 1999 (2000) 2 I.R.360. In that case-law the courts have acknowledged

that the provisions of the Aliens Act 1935 prevail over the rights of the family members of a citizen notwithstanding the

provisions of Article 41 of the Constitution. The case-law relied upon by the Appellants is not authority for the proposition that

family members of citizens may not be deported. The judgments of this court in Fajujonu must be read in the context of its

particular facts which were specifically referred to and relied upon by Finlay C.J. and Walsh, J. in their judgments in that case.

It is clear from those judgments that the court did not hold that an infant citizen had an automatic constitutional right to the

company, care and parentage of his or her parents. The approach adopted in the Fajujonu case was dependant on the fact

that the non-nationals in that case had resided for an appreciable period of time in the State (8 years) and the family had made

its home and residence in Ireland. It was submitted that the Appellants, in their submissions, were asking the Court to go

further than the decision in Fajujonu case and to conclude that all infant citizens have the right to reside within the State and

to the company and care of their parents as a family unit without regard to the particular factual matrix which arose in that

case.

It is well established that the maintenance and integrity of the asylum and immigrations systems is a legitimate aspect of public

policy and the common good and was so held in P, L and B. case. There is nothing in the judgments in Fajujonu which would

preclude the Minister having full and proper regard to such matters in coming to a decision in cases of this nature. As regards

the Dublin Convention, to which the State is a party and to which effect has been given by the Oireachtas by way of Section

22 of the 1996 Act, it establishes an inter-governmental system designed to provide an orderly system of examining applications

for asylum in countries which are parties to the Convention. It was entirely reasonable that the Minister would take into

account the operation of the Convention, to which Ireland is a party, when making his decision in these cases.

The Fajujonu Case:

It is a notable feature of this case that both parties took the judgments in the Fajujonu case as their starting point and indeed the

very basis of their nonetheless divergent arguments concerning the powers of the Minister to make a deportation order and the

criteria to be applied by him before deciding to do so. Both parties subjected the judgments of Finlay C.J. and Walsh, J. in that case

to detailed analysis. For the purpose of this judgment I propose to examine the two judgments in that case in detail. Undoubtedly

there is a parallel between the issues in Fajujonu and the issues which arise in this case but any consideration of Fajujonu must first

of all be done in the context of its facts and circumstances in order to determine the essential ratio of the judgments and the manner

and extent to which they may be applicable to the issues as they arise in this particular case.

Fajujonu – Facts:

First of all as regards the facts of the Fajujonu case, Mr and Mrs Fajujonu were married in March, 1981 and at the end of that month

came to Ireland. They had the status of the illegal immigrants and as such were always subject to the risk that a deportation order

might be made against them pursuant to the provisions of Section 5 of the Aliens Act 1935. Their first child was born in Ireland on the

24th September, 1983 and was thus an Irish citizen. Mr Fajujonu was a Nigerian citizen and Mrs Fajujonu a Moroccan citizen.

Subsequently they had two further children. Mr Fajujonu although willing to obtain employment was unable to do so because he did

not have a work permit. In December, 1983, Dublin Corporation provided the family with a house in which they were still residing at

the time of their proceedings before the courts. The family established themselves among the local community and indeed it was the

decision of the committee of their local tenants association to employ Mr Fajujonu at the local sports and leisure complex which

brought his presence in the country formally to the attention of the Department of Justice. When an application was made for a work

permit for that purpose this lead to an investigation of his immigrant status by the Department. He was then requested by the

Minister for Justice to make arrangements for his departure from the State. No deportation order had been made by the Minister but it

was the fear that a deportation order would in due course follow which gave rise to the proceedings which they brought before the

High Court and ultimately the Supreme Court. It is not clear when precisely the Minister requested Mr Fajujonu to prepare for the

departure of himself and his family but certainly it was made prior to mid-November, 1984. In those proceedings the Plaintiffs, Mr and

Mrs Fajujonu and their first born daughter Miriam, sought, inter alia, an order restraining the Minister from prohibiting them to reside

within the State and a declaration that they were entitled to so reside. As Finlay C.J. was to note in his judgment, the Plaintiff’s case

in the High Court was confined to an assertion that the third Plaintiff, the daughter of Mr and Mrs Fajujonu, as a citizen of Ireland was

entitled by virtue of her citizenship, to remain resident within the State and to have the right to do so with other members of her

family. In the High Court this was asserted as an absolute right which could not be infringed by any order made by the Minister

pursuant to Aliens Act, 1935. That submission was rejected by Barrington, J and the Plaintiffs’ application dismissed. The assertion of

an absolute right in this regard was not pursued on appeal in the High Court but abandoned. In the Supreme Court what was argued

was not an absolute but rather the assertion of a constitutional right of great importance which could only be restricted or infringed

for very compelling reasons.

The High Court proceedings were disposed of by the judgement of Barrington, J. delivered on the 11th November, 1987. The Supreme

Court proceedings, which dismissed the appeal, were disposed of on the 8th December, 1989 in the judgments of Finlay, C.J. and

Walsh, J., other members of the court agreeing with both judgments.

I think it is relevant to note at this point, because specific reference was made to it in the judgment of Finlay, C.J., that when the

Supreme Court delivered its decision in the Fajujonu case a considerable time had elapsed since the Minister for Justice and his

officials had made an assessment on their case in 1984 and by that time the Fajujonu family had lived in Ireland for a period of

approximately eight years without any deportation order actually having been made. In the meantime, since 1984, two further children

had been born to the family in Ireland.

Judgement of Finlay C.J.

I now turn to the judgment of Finlay C.J. At page 162 he set out his first conclusion in the following terms “… where, as occurs in this

case, an alien has in fact resided for an appreciable time in the State and has become a member of the family unit within the State

containing children who are citizens, that there can be no question but that those children, as citizens, have a constitutional right to

the company, care and parentage of their parents within a family unit. I am also satisfied that prima facie and subject to the

exigencies of the common good that that is a right which these citizens should be entitled to exercise within the State”.

He then went on to express the view that non-national parents were entitled to assert a choice of residence on behalf of their infant

children, and I will come back to this particular point later. In the next paragraph Finlay C.J. stated “Having reached these

conclusions, the question then must arise as to whether the State, acting through the Minister for Justice is pursuant to the powers

contained in the Aliens Act, 1935, can under any circumstances force the family so constituted as I have described, that is the

family concerned in this case, to leave the State. I am satisfied that he can, but only if, after due and proper consideration, he is

satisfied that the interests of the common good and the protection of the State and its society justifies an interference as to what

is clearly a constitutional right.

The discretion, it seems to me, which in the particular circumstances of a case such as this is vested in the Minister for Justice to

consider as to whether to permit the entire of this family to continue to reside in the State, on the one hand, or to prevent them

from continuing to reside in the State on the other hand, is a discretion which can only be carried out after and in the light of a full

recognition of the fundamental nature of a constitutional rights of the family. The reason, therefore, which would justify the removal

of this family as it now stands, consisting of five persons three of whom are citizens of Ireland against the apparent will of the entire

family, outside the State has to be grave and substantial reason associated with the common good.”

At this point I would note first of all that it is quite evident that the then Chief Justice did not hold that the Fajujonu family had an

automatic right let alone an absolute one to remain within the State. There could be circumstances justifying their removal from the

State. Secondly, he premised his first conclusion pointedly on the fact that they had resided in the State for an appreciable time and

in ensuing paragraphs referred to the “family concerned in this case” and the “particular circumstances of a case such as this” and

the justification for the removal “of this family as it now stands”.

The learned Chief Justice was clearly addressing the issues in the context of the circumstances of the Fajujonu family and in doing so

he identified competing considerations or rights, none of which were absolute, namely rights flowing from the fact that three of the

children concerned were Irish citizens and the right of the State, in the interest of the common good, to deport non-nationals even if

this had the consequence that infant citizens would necessarily have to leave the State with their parents. This was a matter to be

decided by the Minister in the exercise of his discretionary power.

It seems to me that the facts and circumstances in which the balance could be struck between these competing considerations or

rights may vary greatly. In principle the constitutional rights of infants who are citizens must be taken into account in every case but

the degree to which a deportation order may constitute an injury to those rights may, in a qualitative sense, vary according to the

circumstances of the case. In the Fajujonu case the family, at the time of the Supreme Court decision, had been in the country for

eight years.

They had, as Walsh J expressly stated, made their home and residence in Ireland.

That Finlay C.J. considered the facts and circumstances of the case as influencing the manner in which the Minister should strike

balance between the competing considerations or rights seems to me to be conclusively demonstrated by the next ensuing

paragraphs of his judgment. He first of all pointed out that while there was no finding of fact to suggest that the rights of the children

had been ignored or brushed aside by the Minister in the investigations carried out on his behalf, neither was there a finding or any

evidence of a careful consideration of those rights. He then went on to support his conclusion in the case with the following

statement:

“In any event the position of the family itself, the exercise by it of its rights to remain as a family unit and the exigencies of the

common good which may be affected by the continued residence in the State of the first and second Plaintiffs, are all matters

which must, of necessity, have been subject to at least the possibility, if the not the probability of very substantial change

since this matter was investigated in 1984.”

In short, it seems to me that Finlay C.J. relied on a probable change in the factual circumstances relating to the competing rights and

considerations since 1984 as capable of having an important bearing on how the Minister exercised his discretion as to whether or not

he should make a deportation Order. He then went on to state:

“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

these 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.”

Finlay C.J. then went onto what I regard as the definitive part of his judgment where he stated:

“I am, however, satisfied also that if, having had due regard to those considerations and having conducted such inquiry as maybe

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.”

I regard this concluding passage of Finlay C.J. as containing the definitive statement of principle which he sought to apply in that

case because it sets out the duties of the Minister in a more abstract fashion namely, that he must have due regard to the

constitutional rights of infant citizens who maybe affected, even if indirectly, by a deportation order concerning their parents as well

as any facts or factors affecting their situation and those rights maybe circumscribed by deportation orders in respect of the parents

if the Minister is satisfied that for good and sufficient reason the common good requires that such orders be made.

Finlay C.J.’s earlier statement that there should be grave and substantial reason associated with the common good is entirely

dependent on his reference in the same sentence to the removal of the family “as it now stands consisting of five persons three of

whom are citizens of Ireland”. Depending on the circumstances of the case particularly where there are special factors such as

“continued residence in the State”, “for an appreciable time” and the circumstances under which that residence has continued, may

give rise in a particular case to the need for “a grave and substantial reason associated with the common good.”

It was submitted on behalf of the Applicants that the constitutional rights of the infant citizens and the extent to which they are

entitled to rely on them should not in principle be affected by the length of time which the children, or the family of which they are

part, are in the State. In short a constitutional right is a constitutional right and cannot be affected by such factual considerations.

In making that submission, Counsel for the Applicants did not seek to put in issue the correctness of the judgments in Fajujonu but

submitted that it was the basis on which they should be interpreted.

Counsel submitted that Finlay C.J. did not hold that only citizens whose parents had resided in the State for an appreciable time had

the constitutional right to reside. If he had intended to limit the rights recognised in Fajujonu to such a category of citizens, he could

have done so expressly.

In my view to adopt such an approach would be to misinterpret the judgment of Finlay, C.J. First of all, as I have already pointed out,

Finlay C.J. expressly relied on the passage of time between 1984 and the proceedings in the Supreme Court as giving rise to a

probability that the factual circumstances of the Fajujonu family had changed and this could lead the Minister to taking a different

view than he had in 1984. Neither do I think that Finlay C.J. was suggesting that only those who had been in the country for an

appreciable period of time enjoyed such rights. In every case there are the prima facia rights of the infant citizens on the one hand

and the possible existence of good and sufficient reasons associated with the common good suggesting that the non-national parents

be deported. The Minister has to ascertain the weight to be attached to all of the relevant and competing considerations and make a

decision which is rational and proportionate. Justice requires that this be done according to the circumstances of the case. It should

be self-evident that the deportation of such a family which has been allowed to remain the State for, say, fourteen or fifteen years,

would be likely to give rise to qualitively different considerations than a similar family to which an Irish citizen was born during the

relatively short period while the parents were waiting the outcome of an application for asylum. It is not simply that a family here for

an appreciable period of time has integrated well in discrete ways such as doing well at school or being popular in the local

community. It is more that after such a period Ireland has become their home and residence as Walsh, J. put it. They may have in a

very substantial way established their home in the State. When the question of making a deportation in such circumstances arises,

the Minister is not dealing with the fact that an infant was born in Ireland as an abstract notion. Clearly what was envisaged by this

Court in its decision in Fajujonu was that the Minister should have regard to all the relevant facts of the particular circumstances not

because some had rights and others did not. If such a family has made its home and residence in the State for an appreciable period

of time, the amplitude of the rights of the infant citizens would be affected and a deportation order of their parents may have a more

intrusive or injurious effect on those rights than in the case of infant citizens whose parents had been in the country for some weeks

or months. Similarly, whether reasons associated with the common good, which the Minister might consider as a basis for a

deportation order, may or may not be of sufficient weight to justify such an order depends on a range of circumstances. In the case

of integrity of the immigration and asylum system, it must be self-evident that different considerations may arise according to

whether the total number of applicants for asylum per annum falls well under one hundred or runs into many thousands.

That the infant citizens are members of a family and the length of time which that family has resided in the State are relevant factors

which the Minister must take into account.

I conclude from the judgment of Finlay C.J. that the Minister may make an Order deporting the parents of infant citizens if, having

taken into account their constitutional rights as citizens, and members of a family, he is satisfied that for good and sufficient reason

the common good requires it.

Judgment of Walsh J.

I now turn to the judgement of Walsh J. in Fajujonu. First of all some general observations. Walsh J. also held that the Applicants’

claim for relief preventing the Minister from deporting them from the State should be dismissed even if this had the consequence that

their infants, who were citizens, would also have to leave the State or even if they were in effect compulsorily separated from their

parents. In short, he also concluded that the non-national members of the Fajujonu family had neither an absolute nor automatic right

to be excepted from deportation by reason only of the fact that children in the family were Irish citizens. In doing so he also agreed

with the judgment of Finlay C.J. when he concluded that having regard to the considerations raised in “the judgments” of the Court

he would dismiss the present appeal.

It is also evident that the approach of Walsh J. was very much premised on the particular facts and circumstances of the case and in

particular the fact that they had lived in Ireland for a considerable period of time during which they had established themselves as

part of their local community. This is illustrated by his statement that “There is no doubt that the family has made its home and

residence in Ireland.” It was in this context that Walsh J. stated “In my view, the first two Plaintiffs and their three children

constitute a family within the meaning of the Constitution and the three children are entitled to the care, protection and the society

of their parents in this family group which is resident within the State.” In my view, Walsh J. is here stating simply that the Fajujonu

family, as a family resident in the State, and while resident in the State, enjoys as a family the protection of the Constitution. I will

address this question further in the context of family rights but it is clear that Walsh J. did not consider such rights as a bar to an

appropriate deportation order since as I have already pointed out, in dismissing the Applicant’s appeal he held that the Minister may,

in certain circumstances, for stated reasons associated with the common good, make such a deportation order.

He also stated in the same context that “It is abundantly clear that citizens of the State may not be deported” but this again was

not a bar to deportation of the non-national members of the family even it has the implication that infants, who are citizens, would

have to leave the State with their parents. Perhaps I should say a brief word on the notion of deportation. It has long been a

principle of international law that a State may not deport its own citizens. This is in part because it would be inimical to international

order and risk creating what would in effect be a large body of stateless persons making it difficult and sometimes impossible for

States to refuse entry or deport undesirable aliens. There would be no State to which they could be returned and which would accept

them. Much more relevant as Walsh J. stated, the Constitution protects citizens from such deportation. Of course a citizen may be

removed and sent out of the State under our extradition laws. Although this may in one sense be viewed as a form of de facto

deportation it is of course not deportation in its true or legal sense since the citizen extradited has a right to return to the State if

and when the purposes for which he or she has been extradited have expired such as when a term of imprisonment served in another

country is completed. Deportation in its true and legal sense is the removal of a non-national from a State on the grounds that he or

she has no right to be within the State and has no right to return to the State (except by Executive discretion or special change of

circumstances). The terms ‘constructive deportation’ or ‘de facto deportation’ have occasionally been used in these proceedings to

refer to the consequences which a deportation order of parents has for their infant citizens. These are no more than euphemisms for

the practical effects which the deportation of non-national parents may have on their infant citizens, namely, that they will almost

inevitably have to leave the State with them. Those infant citizens of course retain the right to return to the State at anytime once

they have reached an age of discretion enabling them to decide to do so. However it is described, this is not deportation in its true

and legal sense and was patently not considered as such by this Court in the Fajujonu case.

Subsequent to the foregoing considerations, Walsh, J. dealt with a number of discrete points. The first of these was the reference by

Costello J. in Pok Sun Shun –v- Ireland [1986] I.L.R.M. 593 to the imprisonment of a parent as an example that the rights given by the

Constitution to the family are not absolute in the sense that they are not subject to some restrictions by the State. Walsh, J. made

the point that this did not appear to him to be a valid comparison since the right to prosecute and punish for crime is derived from the

Constitution itself and is applied irrespective of whether or not the offender is a citizen of Ireland. Walsh, J. did not in any sense seek

to call in question the general premise that the constitutional rights of the family under the Constitution are not absolute in the sense

that they are subject to some restriction by the State. That is a general premise which has been recognised in the case law of this

Court (see for example North Western Health Board –v- H.W. and C.W. [2001] 3 I.R. 622 and the cases cited in the judgments of the

Court). I consider Walsh, J. observations in this regard to be entirely obiter.

Walsh, J. next makes reference to the judgment of Gannon J. in Osheku –v- Ireland [1986] I.R. 733 and some conclusions which can

be drawn from it. Walsh, J. stated that because different considerations arose in the Fajujonu case that it was not necessary for him

to offer any view on Gannon J’s expression of views as to the constitutionality of certain matters arising in Osheku, that is to say the

Aliens Act and Orders. It seems to me that nothing turns on the distinctions which Walsh, J. made between the considerations which

arose in those two cases.

It was submitted on behalf of the Applicants in this case that Walsh, J. in effect expressed a disapproval of the reasoning of Gannon

J. in the passage which he quoted from the judgment in Osheku. I do not think there is any basis whatsoever for interpreting Walsh,

J’s judgment as in any sense expressing disapproval of that passage or indeed the principles expressed by Costello J. in Pok Sun Shun.

The next discrete question which Walsh J addressed was a reason advanced by the Minister for refusing Mr Fajujonu permission to

stay in the country “that he was unable to support his family without assistance from the State.” It is a somewhat curious feature of

the Fajujonu case that neither in the High Court nor the Supreme Court were the reasons relied upon by the Minister for refusing the

Fajujonus permission to stay in the country set out. Inability to support his family was cited by Walsh, J. as one of the reasons, but

we do not know what the others were. Consequently, there is no examination of any ground based on the integrity of the

immigrations system such as in the present case, which is something to be borne in mind. Walsh, J. commenced his examination of

that particular reason by noting that there was no suggestion that the first two plaintiffs in Fajujonu, the parents, were in anyway

unfit to maintain the guardianship and custody of their children or that there was any other ground upon which they could be lawfully

separated from their children either temporarily or permanently. This was done for the purpose of distinguishing Fajujonu from the

State (Bouzagou) –v- Station Sergeant, Fitzgibbon Street [1985] I.R. 426 which was a case where the parents had become

estranged and the father, a non-national, had been the subject of a barring order. I do not think it is necessary to go into any further

detail concerning the later case. Walsh, J. was simply making the point that there was nothing in the Fajujonu case which rendered

the parents unfit to act as parents of the children in question. Walsh, J. then moved on to the substance of the issue arising from the

Minister’s ground that the father was unable to support his family without assistance from the State and posed the relevant question

in the following terms: -

“The question which arises, therefore, is whether a family, the majority of whose members are Irish citizen, can effectively be

put out of the country on grounds of poverty”. The dilemma for Mr Fajujonu was that he was unable to support his family

because the State refused him permission to work. The situation in which

Mr Fajujonu found himself was a vicious circle and Walsh, J. rightly pointed out that this left the parents with a dilemma. To

expel the parents for that reason in those particular circumstances, when they had not “been shown to have been in anyway

unfit or guilty of any matter which make them unsuitable custodians to their children” would

“be inconsistent with the provision of Article 41 of the Constitution guaranteeing the integrity of the family.” He went onto

conclude “it would be ultra vires the act to exercise the powers which had been sought to be exercised by the Minister to

disrupt this family for no other reason than poverty, particularly when that poverty has been effectively induced by the

State itself.”

In rejecting poverty or the inability of Mr Fajujonu to support his family as a valid ground in the circumstances of the case upon which

the Minister could rely, Walsh, J. was deciding a discrete issue which as nothing whatsoever to do with the present case before the

court. Inability to support the families concerned in this case is not a ground upon which the Minister relies for the making of a

deportation Order.

In his penultimate paragraph Walsh, J. had this to say: “I agree with the opinion expressed by the Chief Justice that there is nothing

to suggest that the Minister had applied his mind to any of these considerations, and the matter will have to be reconsidered by the

Minister, bearing in mind the constitutional rights involved. In my view, he would have to be satisfied, for stated reasons, that the

interests of the common good of the people of Ireland and of the protection of the State and its society are so predominant and so

overwhelming in the circumstances of the case, that an action which can have the effect of breaking up this family is not so

disproportionate to the aims sought to be achieved as to be unsustainable.” He then concluded by dismissing the appeal of the

Fajujonu family having regard to the considerations of his judgment and that of Finlay, C.J. It was only in the latter cited passage

that Walsh, J. addressed the considerations by reference to which the Minister could proceed to deport the family if he was satisfied,

for stated reasons, that the interests of the common good and the protection of the State required it.

One cannot elide from the judgment of Walsh, J. (no more than one can from that of Finlay, C.J.) his specific references to the

circumstances of the case with which he is dealing including, in the last cited passage, his reference to the particular circumstances

of the case and the risk of the breaking up of “this family”. When Walsh J, used the words “predominant and so overwhelming” it was

very much in the context of the facts and circumstances of the Fajujonu case just as the words “grave and substantial” of Finlay C.J.

were, for reasons already explained. As I have already alluded to, Walsh J. expressly agreed with the considerations in the judgment

of Finlay C.J. among the grounds for dismissing the appeal in that case. Although he initially approached the issues from a different

perspective and dealt with some discrete issues which Finlay C.J. did not address, his final conclusion is very much in accord with

what Finaly C.J. felt the Minister should have regard to when addressing anew the particular situation of the Fajujonu family as it then

stood. There is nothing in his judgment inconsistent with what I have described as the more definitive and abstract principle laid down

in the judgment of Finlay C.J. whereby generally speaking the Minister in considering whether to deport non-national parents of

children who are citizens must have regard to the constitutional rights arising but may make a deportation Order if there is “good and

sufficient reason” associated with the common good.

I think it can be said that Walsh J did add a nuance to the considerations in the judgment of Finlay C.J. which he adopted in his

ultimate paragraph. In his penultimate paragraph he was expressing the view that the effect which a deportation order might have on

the Fajujonu family should not be “so disproportionate to the aims sought to be achieved [by recourse to the interests of the

common good] as to be unsustainable”. In essence he was here introducing a proportionality test which I consider inherent in Finlay

C.J.’s reference to “good and sufficient reason”. He obviously concluded on the particular facts of the Fajujonu case the

considerations which could lead to their deportation should be predominant and overwhelming. That was his application of the test to

that particular case and of course the facts in the present case before the court are very much different. However, I would accept

that it follows from the judgment of Walsh J. and consistent with the approach adopted by Finlay C.J., that in a judicial review of a

decision of the Minister to deport the principle of proportionality may be applied in order to ascertain whether its effect was so

disproportionate to the aim sought to be achieved as to be unsustainable. This principle, for reasons which I have outlined above,

must be applied having regard to the circumstances of the particular case.

While the facts and circumstances of the Fajujonu case differ materially from those in the present case, in my view the judgments do,

as I have just indicated, express principles of more general application which I sum up later in concluding.

I would also like to add in passing that although Walsh J. expressed the view that the Minister could deport non-national parents in

appropriate circumstances in the interests of the common good even if it should result in the separation of members of the family, the

case made before this Court was not premised on a proposition that such would be the result in any of these cases. There is no

evidence whatsoever in this case that there is any reality in the prospect that the parent appellants would abandon their infant

children if deported. It was suggested at one point, in a letter to the Minister written by the solicitor for one of the parties, that he

should not presume that, if deported, the parents concerned would necessarily bring the infant with them. That, he said, was a

matter on which they would take a decision if and when a deportation order was enforced. The matter was put no further than that.

In my view the Minister was perfectly entitled to presume, in the absence of concrete material to the contrary, that the parents

would act in a natural, responsible, and humane fashion so that if, like other non-national parents, they should be deported they

would continue to give care and parentage to their child as part of their family.

‘Reasons associated with the common good’

I now come to another argument advanced on behalf of the Appellants according to which it was submitted that the reasons or

“exceptional circumstances” associated with the common good upon which Finlay C.J. and Walsh J. held a Minister could rely could

not be any routine immigration reason – such as illegal immigrant status of the Applicants or that they were not entitled to asylum or

refugee status.

It was submitted that any reason relied upon by the Minister in such circumstances must be reasons which are personal to the non-

nationals such as where they posed a threat to national security or had engaged in serious criminal wrong doing. This is clear, it was

submitted, from both judgments in the Fajujonu case.

This argument is a crucial part of the Appellant’s case. It sought to exclude from consideration by the Minister any consideration of

illegal immigrant status, or other reason associated with the immigration and asylum system when considering whether he should make

a deportation order in respect of non-nationals who are also the parents of an infant born in this country. Even if the “grave and

substantial” criteria argued for by the Applicants were to apply to this case, the Minister would still be left with a reasonable

discretion to make a deportation order in respect of the parents if those considerations could be taken into account. Thus in making

this argument the Applicants seek to exclude altogether any consideration by the Minister of the integrity of the immigration and

asylum systems as a matter associated with the interests of the common good. This would grant such parents an automatic right to

remain within the country unless there was some specific reasons such as national security or criminal wrongdoing personal to them,

or one of them.

In my view, the argument advanced on behalf of the Appellants is unfounded. It was acknowledged that the circumstances or

reasons upon which the Minister could rely were not fully spelled out in Fajujonu. The court was addressing the facts in that particular

case. There was no suggestion in the judgments in the Fajujonu case that there was any basis for considering non-immigrant reason,

such as criminal wrong-doing or something which might be a threat to the State, on the part of Mr and Mrs Fajujonu, yet their

application was dismissed. What the Court said was that the Minister should consider their situation afresh, first of all to have regard

to the fact that three members of the family were citizens, their constitutional rights, and that they had made their home and

residence in Ireland having being in the country for an appreciable period of time and secondly that the situation had evolved since

the Minister had first examined their case in 1984. The fundamental basis of the Minister’s position was that Mr and Mrs Fajujonu had

entered the State illegally and, more important, as non-nationals had no authority or right to remain within the State. Patently, if the

court had wished to exclude immigration considerations from the ambit of the Ministers discretion they would have expressly done so.

I do not consider that there is anything in either of the judgments of the Court which in any sense could be said to expressly or

implicitly exclude immigration reasons from the Ministers consideration.

Citizenship

Reference was made at the hearing to the nineteenth amendment to the Constitution which amended Article 2 of the Constitution so

that it reads as follows:

“It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part

of the Irish nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of

Ireland. Furthermore, the Irish Nation cherishes its special affinity with people of Irish ancestry living abroad who share its

cultural identity and heritage.”

Prior to the adoption of the amendment, citizenship was acquired by law, the relevant provision being Sections 6 of the Nationality

and Citizenship Act, 1956. I will confine myself to quoting sub-section 1 which provides “Every person born in Ireland is an Irish

citizen from birth.”

During the course of the hearing a question arose as to whether Article 2 had the effect of enhancing the rights of citizens and thus

the infant citizens concerned with this case. My understanding of the submissions made on behalf of the Appellants is that it was

accepted that the amended Article 2 of the Constitution was no more than declaratory of the existing right to citizenship of a person

born in Ireland as provided for by law. In any case I find it difficult to accept in the context of issues in this case, that the

constitutional rights of a citizen born prior to the adoption of the amendment to the Constitution in 1998 were less, or were afforded

less protection, than the constitutional rights or protection which they now enjoy. So far as the rights of citizens in issue in this case

are concerned I do not find any basis in Article 2 as amended, for concluding that they have either been enhanced or diminished. In

the context of this case I am satisfied that those articles in the Constitution which either acknowledge or protect the rights of

citizens apply to the citizens who are such by virtue of Article 2 in the same way as they previously applied to citizens by virtue of

Section 6 of the 1956 Act.

Family Rights:

In support of his submissions on the interpretation and application of Fajujonu Counsel for the Appellants relied on the special and

express protection afforded by the Constitution to the family as a fundamental unit in society. It was submitted that the family

comprising an Irish citizen is a family under Irish law and enjoys the protection of the Constitution, in particular Articles 41 and 42.

Reference was made to the judgments of this court in North West Health Board –v- H.W. and C.W. (cited above) where the

fundamental status of the family in society and the nature of its rights under the Constitution were acknowledged. Counsel also

referred to the decision of the former Chief Justice, Finlay C.J. in Re J.H. (an infant) [1986] I.R. 375 where an infant had the following

rights as a member of the 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, 3.2); 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 was submitted that it flowed from Article 41 that the family has a right to remain together and that any State measure which has

the affect, direct or indirect, of breaking up the family must be an attack on the integrity of the family and must, therefore, be prima

facie in breach of Article 41. Similarly, it was submitted, that the removal of the family from the State must amount to a breach of

the States obligations under Article 42. It was submitted that in the Fajujonu case this Court recognised the right of the citizen to

reside in the State and the right of infant citizens in that case to the company, care and parentage of her parents within the family

unit within the State.

Article 41.1 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”. Article 41.1 then goes on to state “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.”

Article 42.1 provides “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, moral, intellectual, physical

and social education of their children.”

I would first of all observe that in my view the protection afforded by the Constitution to the family is not dependent entirely on

whether it counts among one of its members a citizen of the State.

In the North Western Health Board case the judgment of this Court once again pointed out that the constitution recognises the family

as a moral institution independent of the State but in respect of which the State has a duty to protect its constitution and authority.

I do not believe that the decision of the Court in South Western Health Board (which upheld the right of the parents to refuse to

submit their infant to a health screening test notwithstanding the opposite view of the Health Board) would have been any different if

all members of the family were non-nationals. When a family of non-nationals is within the State it has all the attributes which the

Constitution recognises as a “moral institution”. I do not think that there can be any question but that the non-national children of

such a family have a constitutional right to the company, care and parentage of their parents within a family unit while in the State

and that one or both parents could not be removed from that role on grounds any different from those which the Constitution permits

as the basis for removing children from the custody of their parents who are citizens.

In the present context it is only when the deportation of a family arises that a distinction is made between families, as was in the

Fajujonu case, and that distinction is the fact of citizenship of one or more of the children of the family. It is a distinction based on

citizenship and not on family rights.

It is self-evident that a family (of citizens) may choose to leave the State voluntarily and live elsewhere and that does not impinge on

its authority or constitution as a family unit or the rights of the parents as natural educators of the child as envisaged in Article 42.1.

Patently that is a different matter to deportation. It has never been suggested, and I do not think it could be seriously contended,

that the deportation of a non-national family, on otherwise lawful grounds, could be said to put in peril the status of a family as such

or undermine its constitution and authority.

I return to the important and self-evident distinction between an entirely non-national family and one in which one or more of the

children are citizens. A proposed deportation of the latter gives rise to different considerations because of the Irish citizenship of one

or more children of the non-national parents. The children have a general right of residence in the State and prima facie a right to

the company and parentage of their parents within the family unit while within the State. But that right is qualified and the infant

citizen does not have a right to the company and parentage of their parents in all circumstances to such an extent that the parents

themselves acquire a right to reside in the State in all circumstances. Any rights of the parents are qualified because they themselves

have no right to remain within the State and any right of the infants to their company and parentage is subject to the exigencies of

the common good.

This is what I understand Finlay C.J. to have meant in Fajujonu when, having referred to the position of children who are citizens and

their right to the company of their parents went onto say “I am also satisfied that prima facie and subject to the exigencies of the

common good that that is a right which these citizens would be entitled to exercise within the State.” The rights in question are not

absolute they are qualified. They are subject to the exigencies of the common good. I think it is also worth repeating that both Finlay

C.J. and Walsh J took full account of the rights of the family within the State but went onto conclude that these were no bar to

deportation as such and that the Minister may for good and sufficient reasons associated with the common good nonetheless deport

the non-national parents with all the consequences that that would have for the infant citizens. Walsh J. went so far as to say that

this was so even if it should result in the separation of members of the family although this has not been established as a fact in this

case. The point being, that unlike a family of non-nationals who can be deported simply because they are non-nationals, having no

personal right whatsoever to be within the State (where rights arising under the Immigration and asylum systems have been excluded)

the Minister must take into account in a case such as the present one, the prima facie constitutional rights deriving from the

citizenship of the infants in question and consider whether notwithstanding those rights there are, in the circumstances of the case,

good and sufficient reason associated with the common good for the deportation of their parents with the inevitable consequences

for their child.

I wish to turn briefly to the statement, mentioned earlier, by Finlay C.J. that the non-national parents are “entitled to assert a choice

of residence on behalf of their infant children in the interest of those infant children.” I empathise with the analysis of this statement

made in the judgments of both Keane C.J. and Hardiman J. However, I do not consider that Finlay C.J. was saying here that the

parents were making a choice of residence for the children as if it were the choice of the children themselves. That would be absurd

and inconsistent with the rest of his judgment. Once citizens have reached the age of discretion they may decide to reside in the

State and may do so without qualification of their constitutional right to do so. Finlay C.J. was not treating any assertion of the rights

referred to as equivalent to that situation. Any assertion of a choice of residence by parents of infant children is at most their

assertion of where they would wish the family to reside. The choice maybe motivated by the interest of one or more of their children

or their own wishes as to where they would like to reside. Whatever be the case it is patently not the decision of the infants

themselves. It seems to me that in referring to the assertion of a choice of residence on behalf of the children, Finlay C.J. was doing

no more than referring to a situation in which such parents in effect seek to require the Minister, before the making of a deportation

order, to take into account, in the decision he has to make, the constitutional considerations concerning residence, and related

factual elements, which arise from the fact that one or more of their children is an Irish citizen. In any event having so stated that

the parents may assert such a choice he concluded, and in my view properly so, that any rights arising did not prevent the Minister

from exercising his discretion to deport the non-national parents if there was good and sufficient reason associated with the common

good.

Immigration and the interest of the common good:

Although the primary thrust of the submissions of the Appellants in this regard was to exclude immigration considerations from the

ambit of reasons which the Minister may take into account in deciding whether or not to deport the parents of a family which includes

an infant Irish citizen, and one which I have held must fail, I think it appropriate to consider, before concluding, the public interest

element of the control of immigration. In the case as recent as the Illegal Immigrants (Trafficking) Bill 1999 this Court cited with

approval statements of law on this subject by Costello, J. and by Gannon J.

Costello J. in Pok Sun Shun –v- Ireland stated “[The] State …. must have very wide powers in the interests of the common good to

control aliens, their entry into the State, their departure and their activities within the State.”

In Osheku –v- Ireland the passage of Gannon, J approved was as follows:

“The control of aliens which is the purpose of the Aliens Act, 1935, is an aspect of the common good related to the definition,

recognition, and the protection of the boundaries of the State. That 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 this 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 maybe true social order within the

territory and concorde maintained with other nations in accordance with the objectives declared in the preamble to the

Constitution.”

It is an inherent and fundamental right of the State to control and regulate immigration. Its right, and even its duty to do so arises in

the interests of the common good which includes the maintaining of true social order within its territory and concordance in its

relations with other nations. These principles must, in my view, be considered well established in the light of the foregoing case law

and in particular having regard to the decision of this court in the Immigration Bill case. That the control and regulation of immigration

by the Government, through powers conferred on the Minister for Justice, is in the interest of the common good of the nation cannot

in my view be gainsaid and it is universally so accepted in sovereign democratic states.

No doubt it can be said that immigration of policy adopted by our State, with our history, should be as generous as possible but the

evaluation of its generosity is not a matter for the Courts. On the other hand few, if any, countries can afford to adopt an open door

policy. There must be some regulation and control of numbers. The Courts are concerned as to whether the control and regulation of

immigration and in particular the application of those controls in individual cases are in accordance with the law and the Constitution.

Where the Minister is required, as in a case such as this, to take into account the relevant circumstances of parents of children who

are citizens and who maybe affected by a deportation order, it is clear that he must also be entitled to take into account the

integrity, including functioning, of the immigration and asylum systems in order to determine whether there exists interests of the

common good which require the making of such a deportation order.

It was suggested that this Court should not have regard to the manner in which the number of applications for asylum or refugee

status have evolved over the years particularly since the 1980’s when the Fajujonu case was decided, because there is no statistical

evidence put before the Court on this matter. I do not think it would be necessary to rely on such statistical evidence, if such were

available (although some general figures were made available). The Court has judicial knowledge of the fact that the number of

applicants for asylum has grown enormously in recent years. In any event it is sufficient to say that there is manifestly a distinction

to be drawn between a situation where the number of persons seeking to enter the State in any one year is very low, for example 30

or 40, and the situation where many thousands seek to do so. In the latter situation the importance and priority to be attached to

the necessity of maintaining the integrity of such a system in the interests of the common good is far greater than in the former

case. The weight to be attached to those interests is not frozen at some point in time. It evolves as the situation evolves. The

Minister in my view is entitled to take current circumstances concerning the level of immigration and the complexities involved in

maintaining the integrity of the asylum and immigration systems in the interests of the common good.

It was argued on behalf of the Minister that if non-national parents who came to this country for the purpose of seeking asylum or

refugee status could claim an automatic right to remain in the State independent of the outcome of their application for asylum by

reason of the “fortuity” that a child was born to them while awaiting a final decision on their application, the Immigration and Asylum

System would be distorted. It also self-evident that in such a situation a substantial number of non- nationals could come to this

State for the ostensible reason of seeking asylum with the intent of circumventing the controls which the State has imposed on

immigration in the interests of the common good. This certainly seems to me to be at least a possibility against which the State is

entitled to protect itself.

It is also seems to me evident that the immigration system and the powers of the State to regulate it includes the right of the State

to permit the entry of economic migrants in accordance with policies adopted in the interests of good government and the common

good. This means that the State may choose to permit the entry of skilled workers, by reason of the need for such skills in particular

economic sectors, subject to such conditions as to limited period of time and that they remain in regular employment. It is also the

case that in this country, as in most other countries, that other categories of non-nationals maybe permitted to enter subject to

conditions, for specialised purposes such as the establishment of new industry or the pursuit of post graduate or other academic

studies. It seems to me that the proper regulation of immigration in all its aspects requires the State to be in a position to impose

lawful and reasonable conditions on the entry of such persons into the State and the circumstances under which they are permitted

to remain. If such non-nationals could acquire an automatic right to remain in the State (subject only to deportation if they commit a

serious criminal offence or otherwise a threat to the security of the State) by reason only of the fact that they had an infant born to

them, it would obviously undermine the ability of the State to exercise its inherent and sovereign powers to control and regulate

immigration. The Constitution has to be read as a whole and competing rights reconciled. In my view the general principles which

emerge from the judgments of this Court in Fajujonu permit the State to exercise control and regulation in this sphere.

In his judgment in this case Fennelly J makes reference to the apparent significant number of non-nationals who have been or appear

to have been permitted to remain in the State by reason of the fact that they were the parents of at least one Irish born child. No

reference was made to State practice or policy in this regard in the course of the proceedings and was not relied upon by the

Applicants as a ground for impugning the decision of the Minister to deport the parent Appellants in this case. How the State

regulates immigration is in first place a matter of policy for the government acting through the relevant Minister. It is for the

government to determine that policy from time to time having regard, among other matters, to the exigencies of the common good.

Such policy may evolve or change according as factors affecting the exigencies of the common good evolve or change. There is

always likely to be a point in time when a particular policy must be changed and this may be done for reasons associated with the

common good. Since the practice of the State in recent years on this matter did not arise during the course of the proceedings

neither party had an opportunity to address any underlying policies involved in such practice and in particular the State did not have

an opportunity to do so. In these circumstances I do not consider appropriate to treat any State practice in this regard, whatever it

may be or have been, as material to the issues in this particular case.

The Dublin Convention

The Dublin convention is an inter-governmental agreement between states who have shared objectives and shared interests in the

orderly and fair regulation of applications for asylum from persons outside those states who are contracting parties to the agreement.

The preamble to the agreement includes the following recitals:

“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 no 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;

DETERMINED to co-operate closely in the application of this Convention through various means …”

One of the objectives of the convention is to facilitate the effective achievement of an area without internal frontiers in which the

free movement of person can be effectively ensured. This is an objective common to the states concerned and it is an objective

which Ireland is bound to pursue in common with other states, pursuant to the provisions of the Treaty referred to as amended by

the Single European Act. A further objective of the Convention, mutually undertaken by the states, is to ensure the orderly treatment

of applications for asylum so that applicants are guaranteed that their applications would be examined by one of the member states

and that they are not referred successively from one member state to another. The states have a duty to co-operate in the

application of the convention.

To these ends the Minister has power to make such orders as are necessary or expedient to give effect to the convention.

Exercising its constitutional powers the State became a party to the Dublin Convention and the Oireachtas conferred powers on the

Minister by virtue of the Refugee Act 1966 to give effect to the Convention. It is clearly in the interests of the common good that the

State fulfil its obligations to ensure that the convention is applied with a view to achieving its objectives. That is a task and duty

which falls upon the Minister. Even where he has a discretion to permit an application for asylum to be examined in this country where

the Convention otherwise envisages that it be examined in another state party to the Convention, he still has the task and duty of

exercising that discretion in the light of the objectives of the convention and so as to ensure its effective application. That is a

decision for him to make in the interests of the common good in order to ensure that the State fulfils its obligations.

Case Law of the United States and the E.C.H.R.

Certain case-law of the courts of the United States were cited in the course of the oral argument. I do not propose to cite them but

simply to recall that the substantial effect of them was that those courts viewed the deportation of non citizens with the

consequential effect of citizen children having to leave the United States with them as not constituting a denial of the exercise of the

right of citizenship but merely a postponement In this particular case I do not think there is a sufficient parallel between our

constitutional provisions which are relevant to the issues being tried and the constitutional considerations applying in the United

States so as to make that case- law relevant. It is perhaps significant that no case law has been cited from any country which

recognises the acquisition of citizenship on the grounds of jus soli which would support the thesis being advanced on behalf of the

Appellants. I do not think that the case law of the European Court of Human Rights was relied upon to a significant extent by the

Appellants. Apart from the fact that the European Convention on Human Rights is not part of domestic law, I consider that the issues

and circumstances which arose in the cases of the E.C.H.R. which were cited are so removed from the facts and issues in this case

that they can have no meaningful bearing on them. The issues in this case fall to be resolved within the ambit of the constitutional

provisions relied upon by the Appellants.

Conclusion

Matters material to the Minister’s decision

In my view the arguments advanced on behalf of the Appellants in essence amount to a false syllogism. It was submitted that infants

who are citizens have a constitutional right of residence. Such infants have a constitutional right to the care, company and

parentage of their parents within the State. Therefore, the parents have a right to remain in the State. For the reasons outlined in

this judgment this conclusion is not validated by the preceding premises. Barrington J. also addressed this in his judgment in the High

Court in the Fajujonu case when he said “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 decide the society of its parents in the State?” Barrington J’s answer to

this question included the following:

“In interpreting the Constitution it appears to me to be important to preserve the balance which the Constitution itself

contemplates … In the present case the parents never had a right to live or 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 the 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.”

I agree with those statements and it is notable that they were not in any sense criticised in the appeal by either Finlay C.J. or Walsh

J. and in my view there is nothing in their judgments inconsistent with them.

I have already expressed the view that while much of what was said in the judgments in the Fajujonu case relate to the particular

facts and circumstances of that case there are nonetheless general principles, on a proper interpretation of those judgments, which

can be applied generally when a decision to deport is being considered in a case such as we have here.

A child or infant of non-national parents has, prima facie, a right to remain in the State. While in the State such a child has the right

to the company and parentage of its parents. These rights are not absolute but are qualified. The rights do not confer on the non-

national parents any constitutional or other right to remain in the State. The rights referred to are qualified in the sense that the

Minister having had due regard to those rights and taking account of all relevant factual circumstances, may decide, for good and

sufficient reason, associated with the common good, that the non-national parents be deported even if this necessarily has the

effect that the child who is a citizen leaves the State with its parents. In deciding whether there is such good and sufficient reason

in the interests of the common good for deporting the non-national parents the Minister should ensure that his decision to deport, in

the circumstances of the case, is not disproportionate to the ends sought to be achieved.

The decision of the Minister

It is evident from the memorandum of Mr Lohan, which I cited at the outset, that when making his decision in this case the Minister

had before him all the material facts and circumstances relating to the situation of the Appellants in this case. It is also clear that the

relevant constitutional considerations to which I have adverted to in my judgment were taken into account. In deciding to make the

deportation order the Minister made specific reference to the period of time for which the applicants for asylum had been in the

State. He had regard to two matters which are material to promoting the interests of the common good namely the application of the

Dublin Convention and the protection of integrity of the immigration and asylum systems. Each of the families who comprise the

Appellants in this case were in this State for a relatively short period before the deportation order was made. The grounds upon which

they seek to challenge the Minister’s deportation order stem from the birth of a child in this State some months after their arrival. It

seems to me entirely reasonable to conclude that the circumstances relating to the Applicants are not unique but on the contrary

that it is a situation that could apply or would apply to a substantial proportion of applicants for asylum. In these circumstances it

seems to me entirely reasonable that the Minister would consider whether a refusal to make a deportation in such circumstances

could call in question the integrity of the immigration and asylum systems including their effective functioning. That is a matter for

him. It has not been contested that the circumstances of each of the families are such that the Minister may require that their

applications for asylum be examined in another state pursuant to the Dublin Convention.

No issue was raised concerning the principles to be applied in scrutinising the lawfulness of the Minister’s decision and the established

principles as to rationality fall to be applied.

In the circumstances of the case I am satisfied that the Minister’s decision has been shown to be reasonable and rational in

determining that there existed good and sufficient reasons associated with the common good for the making of the deportation order.

Non-national immigrants are permitted to remain in the State while their applications for asylum or refugee status are examined and

determined. It has been shown that the Minister decided to deport the non-national parents in this case because, inter alia, of

concerns that this process could be circumvented by reason only of the fact that during the relatively short period during which that

process takes place applicants may become the parents of a child born in the State. The Minister had a stark choice to make, either

to deport or not to deport. There is no halfway house. No circumstances have been disclosed or shown to exist upon which one could

consider the Ministers decision to be disproportionate. In my view it has not been established that the Minister’s decision to deport in

these cases was unlawful or unconstitutional. Cases may arise which are so wholly exceptional and unique in their circumstances

which might require further evidence of the manner in which the integrity of the immigration and asylum systems could be called in

question if no deportation order was made but this is clearly not such a case.

For the reasons set out in my judgment I would also dismiss this appeal.