IESC 3 · Supreme Court

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

Geoghegan J.

Fennelly J.

109/02 & 108/02

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) 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/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/RESPONDENT

Judgment of Mrs Justice McGuinness delivered the 23rd day of January 2003

I have had the advantage of reading the judgment about to be delivered by Fennelly J. and I agree with both his reasoning and his

conclusions. I propose here to add some comments and considerations of my own.

The facts of the two cases in question have been fully and helpfully set out in the judgments both of the Chief Justice and of

Fennelly J. and there is no need to repeat them here.

This is an appeal from the judgment of Smyth J. in the High Court delivered on the 12th April 2002 and his order made on the 12th

April 2002 whereby he refused the relief sought by the Applicants in both cases in their judicial review proceedings. In essence the

non-national Applicants sought to prevent their deportation as illegal immigrants.

In his judgment Smyth J. provided an admirably clear and succinct analysis of the submissions made by the parties and the matters

which were, and which were not, in issue between them. It is, I consider, useful to set out that analysis here (from page 39 of the

judgment onward):-

“The Legal Issues

Notwithstanding the very extensive range of reliefs sought or the elaborate grounds advanced in the documentation, the case

on presentation to the Court reduced itself to two broad issues:-

(a) Constitutional, and

(b) Dublin Convention.

The Constitutional Issue

1. For ease of reference under this heading, Kevin Lobe and Osaze J. Osayande will be referred to as ‘the Irish-born child’; the

Lobe family and Osayande family will for convenience be referred to as ‘the family’.

2. The rights invoked in these proceedings by the Applicants are:-

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

(ii) those of the family.

3. The constitutional provisions relied upon were:-

(A) Article 2, which provides:-

“It is the entitlement and birthright of every person born on the island of Ireland, which includes its island and seas, to

be part of the Irish nation. This 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.”

The contention on behalf of the Irish-born child is that to be part of the Irish nation must involve an entitlement to live to be

reared and to be educated in Ireland.

(B) Article 40.3.1, which provides:-

“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.”

The contention on behalf of the Irish-born child is that amongst the personal rights of the citizen is the right to reside in

Ireland. That, where the citizen is a minor and unable because of that fact to make the decision to so reside, it is the parents

of that child who are entitled, prima facie, to make that decision and to exercise that right for and on behalf of the child.

In respect of both (A) and (B), the Respondent accepts that:-

(i) the Irish-born child is a citizen;

(ii) it is not possible to make a Deportation Order against an Irish citizen;

(iii) there is a prima facie entitlement of the parents to make a decision on behalf of the Irish-born child to reside within

the State.

(C) Article 41.1.1 which provides:-

“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.”

Article 41.2:-

“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.”

The contention on behalf of the family is that it is a constitutionally recognised family and that it has rights as a family by

virtue of the fact that comprised in the family unit there is an Irish-born child, who is a citizen. The Irish-born child was

referred to by Mr Shipsey as ‘the anchor’ which connects and keeps connected to Ireland or the State the families of non-

nationals.

The Respondent did not dissent from the submission made on behalf of the family that:-

(a) it is not legally permissible to ignore the constitutional rights which derive under Article 41 in respect of a family that

has one member who is an Irish citizen;

(b) every Irish citizen has a right to membership of a family;

(c) every Irish citizen has a right to have that family respected under Article 41 of the Constitution; and

(d) the family and family rights have a very special position under the Constitution.

(D) Article 42, which provides:-

‘1. The State acknowledges that the primary 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.

2. Parents shall be free to provide this education in their homes or in private schools or in schools recognised and

established by the State.

3. – 10 The State shall not oblige parents in violation of their conscience and lawful preference to send their children to

schools established by the State, or to any particular type of school designated by the State.

- 20 The State shall, however, as guardian of the common good, require in view of actual conditions that the children

receive a certain minimum education, moral, intellectual and social.

4. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to

private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or

institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral

formation.

5. In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the

State, as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but

always with due regard to the natural and imprescriptible rights of the child.”

The contention on behalf of the family is that:-

(i) it is the family not the parents that is regarded as the primary and natural educator of the child, it is a right which

attaches to the family not to the parents;

(ii) the family comprises the parents and the children within the family;

(iii) the guarantee would be meaningless if the State could deport the parents of Irish children and thus effectively

abdicate all responsibility which the State could exercise over those parents in respect of the education and welfare

outside of the State;

(iv) the mandatory obligation of the State under Article 42.3.2, as guardian of the common good, cannot be fulfilled by

deporting the parent(s).

The Respondent did not dissent from submissions (i) and (ii) aforesaid, bit did not agree that (iii) and (iv) were a consequence

of giving effect to Deportation Orders made by the Respondent.

Both parties agreed with the law as expressed by Finlay CJ in Re J.H. [1985] IR 375 (as referred to in the Supreme Court

decision of the Northwestern Health Board v HW and CW unreported 8th November 2001, per Keane CJ, at p.40 of his

judgment, and at p.30 of the judgment of Hardiman J), that an infant had, in addition to the rights of every child, rights under

the Constitution as a member of the family, which he defined as follows:-

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

(Article 41.1);

(b) to protection by the State of the family to which it belongs (Article 41.2); and

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

education (Article 42.1)”

The argument in the High Court, as in this Court, turned in the main on the interpretation and analysis in the case of Fajujonu v

Minister for Justice [1990] 2 IR 151, to which I shall refer in detail later. The learned trial judge held that the reasons given by the

Respondent Minister for refusing permission for the non-national members of the Lobe family and for Mr Osayande to continue to

reside in this country met the requirements set by this Court in the Fajujonu case and that the Minister was entitled to make the

relevant deportation orders.

The Rights in Issue

The two children, Kevin Lobe and Osaze J. Osayande, are citizens of Ireland both in accordance with Statute and in accordance with

Article 2 of the Constitution. The children and their parents also have rights as families; these rights arise under Articles 41 and 42 of

the Constitution. The children’s rights arising from their citizenship, which are protected under Article 40.3 of the Constitution, are not

necessarily absolute rights but their right to be citizens is an absolute right and the Respondent accepts that they cannot, as

persons, be deported. The rights of the family under Articles 41 and 42 are important and powerful rights but are not absolute; this is

clear both from Article 42.5 itself and from a number of previous decisions of this Court (including Fajujonu itself) to which I will refer

later.

While the right of the State to control the entry and residence of non-nationals is not explicitly expressed in the Constitution, it has

been accepted by this Court that this is a sovereign right – see, for example, the much quoted passage from the judgment of Gannon

J. in Osheku v Ireland [1986] IR 733, as approved by this Court in Laurentiu v Minister for Justice Equality and Law Reform [1999] 4

IR 27, and in In Re Article 26 of the Constitution and the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360. This too, is an

important right and must be seen in the context of the common good.

In the Fajujonu case the Court considered the rights of the particular family in the context of the immigration system then prevailing –

the Aliens Act 1935. The Court dismissed the appeal and returned the matter to the Respondent Minister for consideration in the light

of the requirements set out by the Court. In the words of Finlay CJ (at page 162):

“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 a grave and substantial

reason associated with the common good.”

In the words of Walsh J. (at page 166) the Respondent Minister:-

“Would have to be satisfied, for stated reasons, that the interest of the common good of the people of Ireland and of the

protection of the State in 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 aim sought to be achieved as to be

unsustainable.”

The Respondent Minister in the instant cases put forward a number of reasons why he had decided to refuse the applications of the

parents to remain in this country. These are mot clearly expressed in the memorandum provided to the Minister for consideration of

the cases by Mr John Lohan (the “Lohan Memorandum”) as follows:-

“The reasons for this recommendation are:-

The length of time the family has been in the State – only seven months at this stage but less than four months at the

time of making the deportation order,

The application of the Dublin Convention to which Ireland is a party,

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

In the Lobe case, a further reason was given relating to the adaptability of the family to life in the Czech Republic.

The learned High Court judge accepted that these reasons met the standards set in the Fajujonu case. The Applicants have

appealed. In their notice of appeal a series of grounds of appeal are set out, but in essence the Applicants assert that the learned

High Court judge erred in holding that the reasons put forward by the Minister met the requirements set out by this Court in the

Fajujonu case.

As in the High Court, therefore, the argument before this Court turned in the main on the analysis and interpretation of this Court’s

decision in Fajujonu and whether the instant cases could properly be distinguished from that case. It should be noted that the

Respondent did not mount a direct challenge to the decision in Fajujonu, nor did he bring evidence, statistically or otherwise, to try to

demonstrate that in the context of the common good and in the context of present immigration patterns the considerations set out

by the Court in Fajujonu should no longer apply.

It is therefore necessary for this Court to consider the nature, importance and weight of the rights of the child citizens, of their

families, and of the State, in the context of the Fajujonu judgment.

The Children’s Citizenship

Kevin Lobe and Osaze J.Osayande were born in Ireland. They are therefore citizens of Ireland in accordance with the provisions of the

Irish Nationality and Citizenship Act 1956 which provided, inter alia, at section 6(1)(a):

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

Article 2 of the Constitution which was passed by Referendum of the people following the British-Irish Agreement of Good Friday 1998,

provides 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.”

The terms of the Article are strong and emotive; it is the birthright of every person born in Ireland to be part of the Irish nation. Do

the terms of Article 2 in any way affect the rights of the two children in question as citizens? They do not add any specific rights to

those acquired by Statute, nor, presumably to these rights which may arise through the operation of Article 40 of the Constitution.

Historically, however, the enactment of Article 2 by the people was accepted as being of great importance.

The statutory position, as has been pointed out by others, arose from the old rule of ius soli, and doubtless, even without the

constitutional protection of Article 2, it would not be possible retrospectively to remove the right of citizenship from those who were

already qualified, including these two children. However, the ius soli rule has been altered and diminished by legislation elsewhere, in

particular in the United Kingdom. Given the changes in the pattern of immigration to this country it is not impossible that, in the

absence of constitutional protection, the statutory position in this jurisdiction might also have been changed, possibly in the case of

those who, to use the Respondent’s phrase, were born “fortuitously” in Ireland. In the light of Article 2 such a statutory change

cannot now occur.

I would also concur with Fennelly J. in his analysis of the wording of Article 2. Some import and meaning must be given to the concept

of the birthright of the Irish born person and to the declaration that such a person is part of the Irish nation; it is not a mere

shibboleth. It seems to me that the enactment of Article 2, while not altering the statutory position in regard to citizenship, alters the

context and perhaps also the quality of the citizenship which is the right of the Irish-born. Can the declared birthright and entitlement

contained in Article 2 be met by a reassurance that Kevin Lobe and Osaze J.Osayande, having been in reality constructively deported

in infancy, may return to claim their citizenship at the age of 18? This question also, in my view, must be included in the Court’s

consideration of the tests set out in the judgments in Fajujonu.

Articles 41 and 42

The first section of Article 41 of the Constitution provides as follows:

“41.1.1 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.

1.2 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.”

Article 42 which is headed “Education” provides as follows:

“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.

2.1. Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established

by the State.

3.1 The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools

established by the State, or to any particular type of school designated by the State.

3.2 The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a

certain minimum education, moral, intellectual and social,

4.2 The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private

and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions

with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.

5. In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as

guardian of the common good, by appropriate means, shall endeavour to supply the place of the parents, but always with due

regard for the natural and imprescriptible rights of the child.”

The meaning and effect of these Articles have been considered by the High Court and by this Court in a considerable number of

cases. The rights of the family and of children are central to the organisation of our society, and understandably there has been much

analysis and commentary on these decisions, for example in Kelly; The Irish Constitution (3rd edition), pages 989 to 1060 and in

Shatter: Family Law (4th edition) chapter 1 and seriatim.

While in Article 41 the rights of the family are declared to be inalienable and imprescriptible, they are not fully defined. This question

was addressed by Kenny J. in Ryan v The Attorney General [1965] IR 294 where he said:-

“Not one of the Counsel in this case has attempted to state what the inalienable and imprescriptible rights of the family are

and, as the Constitution gives little help on this, I am in some difficulty in dealing with this argument. ‘Inalienable’ means that

which cannot be transferred or given away while ‘imprescriptible’ means that which cannot be lost by the passage of time or

abandoned by non-exercise. The right of the family to educate the children of that family is, I think, one of the rights which

any moral philosophy would recognise but this right cannot, in my opinion, be one of the rights referred to in Article 41 for

there is a separate Article (Article 42) dealing with education and it is highly unlikely that the Constitution gives the family two

separate rights to educate….Some clue to the ambit of the rights of the family referred to in article 41 is to be found in sub-

section 2 of section 1 where there is a reference to a guarantee by the State to protect the family in its Constitution and

authority. It seems, therefore, that the rights referred to in section 1.1 of Article 41 relate to the Constitution and authority

of the family.”

These fundamental rights and their origin were notably described by Walsh J. in McGee v Attorney General [1974] 284 (at 310):-

“Articles 40, 41, 42 and 44 of the Constitution all fall within that section of the Constitution which is titled ‘fundamental rights.’

Articles 41, 42 and 43 emphatically reject the theory that there are no rights without laws, no rights contrary to the law and

no rights anterior to the law. They indicate that justice is placed above the law and acknowledge that natural rights, or human

rights, are not created by law but that the Constitution confirms their existence and gives them protection. The individual has

natural and human rights over which the State has no authority; and the family, as the natural, primary and fundamental unit

group of society, has rights as such which the State cannot control. However, at the same time it is true, as the Constitution

acknowledges and claims, that the State is the guardian of the common good and that the individual, as a member of society,

and the family, as a unit of society, have duties and obligations to consider and respect the common good of that society.”

Walsh J. reiterated these views in G v An Bord Uchtala [1980] IR 32 (at page 69) where he said:-

“In my judgment in the same case (McGee v AG)I referred to Articles 41, 42 and 43 of the Constitution and expressed the

view, which I still hold, that these Articles ‘acknowledged that natural rights or human rights are not created by law but that

the Constitution confirms their existence and gives them protection. The individual has natural and human rights over which

the State has no authority…”

Later, at page 317 of the report, I stated:-

“The natural or human rights to which I have referred earlier in this judgment are part of what is generally called the natural

law.”

The leading case on the rights of the constitutional family (the family based on marriage, as a unit) is In Re J.H [1985] IR 375 a case

which the Respondent accepts as binding on him. The facts of that case were that the infant girl who was the subject of the

proceedings was placed in foster care by her unmarried natural mother one week after her birth on 25th September 1982. The mother

took this course because at the time she was worried about the effect on the child of being brought up by an unmarried mother.

Although the mother knew the infant’s father, a widower with grown up children, she did not wish to marry him solely because of her

pregnancy. The infant was placed for adoption within three months of birth. The adoptive parents, both in their twenties, already had

one adopted child. The natural mother later married the father of the infant and they then applied pursuant to the provisions of the

Illegitimacy Act 1931 for the infant’s birth to be re-registered. The natural mother, in correspondence with the Adoption Society,

refused to give her consent to an order for the infant’s adoption. The adopting parents issued proceedings claiming that the natural

mother’s consent to adoption should be dispensed with pursuant to the provisions of the Adoption Act 1974. The natural parents

issued further proceedings pursuant to the provisions of the Guardianship of Infants Act 1964 in which they sought custody of the

infant. The High Court granted an order pending determination of the proceedings restraining re-registration of the infant’s birth since

such re-registration would, under the Adoption Acts, have effectively prevented any adoption. The natural parents did not challenge

the suitability of the adopting parents to provide a secure and stable home for the infant and it was established in evidence that the

infant and the adopting parents’ other child had formed a close relationship. The adopting parents presented medical evidence relating

to the natural parents indicating that the father suffered from blood pressure and a partially detached retina, while the mother

suffered from over-strain which was occasioned by her care for her own ageing mother whom she had nursed up to her death.

Psychiatric evidence at the trial indicated that there was a risk of long term psychological harm to the infant if custody was

transferred from the adopting parents to the natural parents. At the date of the hearings in the High Court the natural mother was

expecting another child.

In the High Court Lynch J. granted custody of the infant to the adopting parents having regard to the test of the primacy of the

welfare of the child as stated in section 3 of the Guardianship of Infants Act 1964, but refused to dispense with the natural parents

consent to adoption.

The natural parents appealed to this Court on the custody issue. This Court remitted the custody issue to the High Court, holding

that the test as to the welfare of the child stated in section 3 of the Guardianship of Infants act 1964 must be given a meaning

consistent with the infant’s rights as stated in Articles 41 and 42 of the Constitution as a member of a family, in view of the marriage

of her parents. Notwithstanding the presumption of validity attaching to the provisions of section 3 of the Act of 1964, it was held

that the Court cannot supplant the right to education by the family and parents conferred on the infant by Article 42 section 1 unless

there is established to the satisfaction of the Court the exceptional circumstances referred to in Article 42 section 5 and in the

circumstances section 3 of the 1964 Act ought to be construed as involving a constitutional presumption that the welfare of the child

as defined in section 2 of the Act is to be found within the family unless there are compelling reasons why this cannot be achieved, or

the evidence establishes an exceptional case as envisaged by Article 42 section 5 and in this light the matter should be reconsidered

on the basis of this test.

In the event the High Court having heard further evidence and applying the test as adumbrated by this Court awarded custody of the

child to the natural parents.

In his judgment Finlay C.J. spoke of the family rights under Articles 41 and 42 of the Constitution. He surveyed a number of cases

which dealt with these rights and went on to say (at page 394):-

“Having considered these decisions and the relevant provisions of the Constitution I have come to the conclusion that the

principles of law applicable to this case are as follows:

1. The infant, being the child of married parents, now legitimised, has in addition to the rights of every child, which are

provided for in the Constitution and were identified by O’Higgins C.J. in G v An Bord Uchtala [1980] IR 32 at page 56,

rights under the Constitution as a member of a family, which are:

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

positive law (Article 41 section 1);

(b) to protection by the State of the family to which it belongs (Article 41 section 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, section 1)….”

Later in his judgment Finlay C.J. continued:-

“A child of over two years of age, as this infant is, in the dominant or general custody of persons other than its parents and

continuing in such custody against the wishes of its parents, cannot be said to enjoy the right of education by its family and

parents granted by Article 42 section 1 of the Constitution. And no additional arrangements, as were indeed put in train in this

case by the orders of the High Court for access by its parents to the child or participation by them in a decision-making

process concerning its education, could alter that situation. Furthermore, notwithstanding the presumption of validity which

attaches to the Act of 1964 and the absence of a challenge in these proceedings to that validity, the Court, cannot, it seems

to me, as an organ of the State, supplant the right to education by the family and parents which is conferred on the child by

the Constitution unless there is established to the satisfaction of the Court a failure on the part of the parents as defined in

Article 42 section 5 and ‘exceptional circumstances’.

I would, therefore, accept the contention that in this case section 3 of the Act of 1964 must be construed as involving a

constitutional presumption that the welfare of the child, which is defined in section 2 of the Act in terms identical to those

contained in Article 42 section 1, is to be found within the family, unless the Court is satisfied on the evidence that there are

compelling reasons why this cannot be achieved, or unless the Court is satisfied that the evidence establishes an exceptional

case where the parents have failed to provide education for the child and to continue to fail to provide education for the child

for moral or physical reasons.”

The other members of the Court – Griffin J., Hederman J., McCarthy J., and O’Hanlon J. agreed with the Chief Justice. In a brief

judgment McCarthy J. emphasised the need for “compelling reasons”. At page 397 he said:-

“The key issue is whether the Court is satisfied on the evidence that there are compelling reasons why the welfare of the

child, as defined, cannot be achieved within the family, in other words that there are compelling reasons why the child should

be in custody other than that of her parents. It may seem inappropriate in a case so inevitably distressing as this to speak of

a burden of proof; I would merely wish to emphasise that the ‘compelling reason or reasons’ must, in my view, be clearly

established.”

This judgment, which firmly established the constitutional rights of the family as a unit, had considerable impact at the time. Its

reasoning and conclusions are reflected in the terms of the Child Care Act 1991 which, in earlier Bill form, was before the Oireachtas

at the time that this Court gave judgment. Section 3 of the 1991 Act, for example, provides:-

“3(1) It shall be a function of every Health Board to promote the welfare of children in its area who are not receiving adequate

care and protection.

(2) In the performance of this function, a Health Board shall -

(a) take such steps as it considers requisite to identify children who are not receiving adequate care and protection and

co-ordinate information from all relevant sources relating to children in its area;

(b) having regard to the rights and duties of parents, whether under the Constitution or otherwise –

(I) regard the welfare of the child as the first and paramount consideration, and

(II) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of

the child; and

(c) Have regard to the general principle that it is generally in the best interests of a child to be brought up in his own

family.”

The next judgment in which the strength of the rights of the constitutional of family was considered was In the Matter of Article 26

of the Constitution and In the Matter of the Adoption (No. 2) Bill 1987 [1989] IR 656. Prior to 1987 there was no provision in the

Adoption Acts for the adoption of a child of married parents. The Adoption Bill 1987 provided for such adoptions in extremely limited

circumstances. The Bill, which was enacted as the Adoption Act 1988, reflects virtually word for word the terms of Article 42.5 of the

Constitution and adds the additional requirement that the child in question must be “abandoned” by the married parents. In delivering

the judgment of the Court Finaly C.J. stressed the necessity for strict interpretation of the terms of the Act, which arose from the

importance of the rights of the family under Articles 41 and 42 of the Constitution. Only where the circumstances set out in Article

42.5 applied could there be any possibility of removing the child from its constitutional family. At page 663-4 the learned Chief Justice,

having set out the provisions of the Constitution and of the Bill, said:-

“In section 3 the provisions of sub-clause I (A) to II (B) inclusive provide a series of matters which seriatim must be

established to the satisfaction of the Court. They are not merely matters to be taken into consideration by the Court in

exercising a general discretion but are framed in a much more stringent form of being absolutely essential proofs requiring

separately to be established. Failure in any one of these proofs absolutely prohibits the making of an authorising order, no

matter how strong might be the evidence available of its desirability from the point of view of the interests of the child.”

Thus the importance of the rights of the family are held to be such that the strictest standards must be applied in any interference

with them.

In M.F. v Superintendent Ballymun Garda Station [1990] ILRM 767 O’Flaherty J. in this Court returned to the subject of the

constitutional rights of the child and of the family (at page 773):-

“Dealing with the constitutional rights in the first instance, what they are and the importance that the Court attaches to

them, was fully explored in Re Article 26 of the Constitution and In the Matter of the Adoption (No. 2) Bill 1987. It will be

recalled that the legislation (as it now is) was concerned with the entitlement of the child of the marriage to be adopted. In

the course of its judgment the Court examined all the relevant constitutional provisions and highlighted the necessity always

to have regard to the ‘natural and imprescriptible’ rights of the child.

The Court accepted (page 272):-

‘…that the right and duty of the State to intervene upon the failure of parents to discharge their duty to a child can be

considered both under Article 42.5 and under Article 40.3. By the express provisions of Article 42.5 the State in

endeavouring to supply the place of the parents is obliged to have due regard for the natural and imprescriptible rights

of the child. Any action by the State pursuant to article 40.3 endeavouring to vindicate the personal rights of the child,

would, the Court is satisfied, be subject to a similar limitation.’

This is the constitutional requirement.”

It is also clear from the case law that the family rights contained in article 41 and article 42 are not confined to families composed of

Irish citizens. They can extend to non-nationals. In Northampton County Council v ABF and MBF [1982] ILRM 164 Hamilton J. (as he

then was) held that non-citizenship had no effect on the interpretation of Article 41 or the entitlement to the protection afforded by

it. In that case an English Juvenile Court had placed the infant child of English citizens who were married in and domiciled in England

and which infant was born in England in the care of the applicant County Council. The father of the infant unlawfully removed the

infant from the jurisdiction of the English Court to Ireland and placed her in the care of the Defendants. The County Council’s claim

was for the return of the infant so that she might be legally adopted in spite of the opposition of the father. The infant’s mother

consented to the proposed adoption. At the time such an adoption was not permissible under Irish law and was assumed to be

repugnant to Article 41 of the Constitution.

Hamilton J. in his judgment referred to the passages from the judgment of Walsh J. in McGee v Attorney General which I have already

quoted above and also to the judgment of Walsh J. in G v An Bord Uchtala. He went on to say:

“The Supreme Court in the State (Nicolaou) v An Bord Uchtala [1996] IR 567 expressly reserved for another and more

appropriate case consideration of the effect of non-citizenship upon the determination of the Articles in question. It seems to

me, however, that non-citizenship can have no effect on the interpretation of Article 41 or the entitlement to the protection

afforded by it.

What Article 41 does is to recognise 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, which rights the State

cannot control. In the words of Walsh J. already quoted, ‘these rights are part of what is generally called the natural law’ and

as such are antecedent and superior to all positive law.

The natural law is of universal application and applies to all human persons, be they citizens of this State or not, and in my

opinion it would be inconceivable that the father of the infant child would not be entitled to rely on the recognition of the

family contained in Article 41 for the purpose of enforcing his rights as the lawful father of the infant the subject matter of the

proceeding herein or that he should lose such entitlement merely because he removed the child to this jurisdiction for the

purpose of enforcing his said rights.

These rights are recognised by Bunreacht na h-Eireann and the Courts created under it as antecedent and superior to all

positive law: they are not so recognised by the law of the Courts of the jurisdiction to which it is sought to have the infant

returned.”

In the State (Bouzagou) v Station Sergeant, Fitzgibbon Street Garda Station [1985] IR 426 Barrington J. in the High Court stated at

(page 103) that he was prepared to accept that the rights recognised by articles 41 and 42 of the Constitution were not confined to

citizens and that, in a proper case, the prosecutor would be entitled to rely upon these Articles, and he referred in this context to the

Northampton County Council case.

In T.M. and A.M. v An Bord Uchtala [1993] ILRM 577 this Court was asked to consider whether the provisions of the Adoption Acts

1952 to 1988 applied to a child of alien parents. The prospective adopters in that case wished to adopt an Indian child of unknown

parents. Evidence was given that the child had been a foundling but there was no evidence to indicate that the child’s parents were

unmarried. The Court held that the Adoption Act 1988 applied to any child within the jurisdiction who would otherwise qualify for

adoption irrespective of the child’s nationality. O’Flaherty J. in his judgment adverted to the constitutional point and said (at page

589):-

“The reference to ‘parents’ and ‘children’ in Article 42.5 is not confined to citizens of the State. Indeed it would be remarkable

if this section could not be invoked to protect any child in the State who is left, in effect, parentless.”

The most recent statement by this Court of the importance of the rights of the family and in particular of the rights of the family vis-

à-vis the State is contained in the judgments in Northwestern Health Board v H.W. and C.W. [2001] 3 IR 622. In that case the

Plaintiff Health Board applied for an order permitting it to carry out a particular screening test on the infant child of the Defendants

notwithstanding the fact that the Defendants had refused to give their consent and for an order restraining the Defendants from

impeding the Plaintiff from carrying out the test. In the High Court McCracken J. refused the relief sought holding inter alia that Article

41 of the Constitution placed the family in a special position as the natural, primary and fundamental unit group of society which

possessed rights antecedent and superior to all positive law and that the State had a constitutional duty to vindicate the rights of

children in exceptional cases, where there had been a failure by the parents in their duty, for physical or moral reasons. However, the

State was not entitled to intervene in every case where parental opinion differed from a professional opinion or the State considered

that the parents were wrong in a decision. In setting out his conclusions McCracken J. (at p.633) stated:

“Article 41.1 places the family in a very special position as being the natural primary and fundamental unit group of society. It

also provides that the family possess rights which are antecedent and superior to all positive law. It is indeed probably the

provision in the Constitution which comes nearest to accepting that there is a natural law in the theological sense. There have

been a number of cases which have spoken of a hierarchy of rights under the Constitution, but the wording of Article 41.1

certainly would appear to place the rights of the family and therefore, presumably, the rights of parents in relation to their

children, very high up in this hierarchy.”

On appeal the decision of the learned High Court judge was upheld by this court. In his judgment the Chief Justice discussed at some

length the provisions of Article 41. He pointed out (at Pg. 686) that:-

“While Article 12 of the European Convention of Human Rights and Fundamental Freedoms acknowledges the right of everyone

to respect for his family life, neither the Canadian Charter of Rights and Freedoms nor the Commonwealth of Australia

Constitution Act - to mention two jurisdictions’ precedents from which were cited in the submissions - contain any articles

equivalent to those contained in our Constitution.”

Later in his judgment (at Pg. 687) he goes on to say:

“Again, the Article speaks, not of the authority of parents, but of the authority of the family. While the family, because it

derives from the natural order and is not the creation of civil society, does not, either under the Constitution or positive law,

take the form of a juristic entity, it is endowed with an authority which the Constitution recognises as being superior even to

the authority of the State itself. While there may inevitably be tensions between laws enacted by the State for the common

good of society as a whole and the unique status of the family within that society, the Constitution firmly outlaws any attempt

by the State in its laws or its executive actions to usurp the exclusive and privileged role of the family in the social order.”

Denham J. in her judgment at p.718 stated:

“Under the Constitution, the State recognises the family as the natural primary and fundamental unit group of society: Article

41.1.1. Further, the State 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 41.1.2. Thus, the family is the basic unit in our

society and in accordance with the Constitution the State will protect it. The family in the context of Article 41 of the

Constitution is the family founded on the institution of marriage.

The fact that the family is the fundamental unit group of society is a constitutional principle. Whatever historical origin or

origins may be given for this principle it is a principle of the Constitution. In this case the family is one recognised and

protected by the Constitution. The responsibility and authority of the family is exercised by the defendants. The child is a

member of the family and has the benefit of being part of that unit. The child is the responsibility of the parents. The rights of

the parents in exercising their responsibility are not absolute; the child has personal constitutional rights. The child has rights

both as part of the unit of the family and as an individual.”

At p.719 Denham J. added

“However, the legislation and the rights of the child have to be construed in accordance with Article 41 which place the family

at the centre of the child’s life and as the core unit of society. The language of Article 41 (set out previously) is clear and

strong. The family is the fundamental unit group of society and the State (which includes the courts) guarantees to protect

the family in its constitution and authority.”

The origin, importance and weight of the rights of the family are all stressed in this powerful line of decisions both of the High Court

and of this court. They are not absolute rights, but they are not readily displaced and compelling reasons are required to displace

them.

It is in the context of these statements of the law that the case of Fajujonu v. The Minister for Justice [1990] 2 IR 151 came to be

decided and it cannot be doubted that Articles 41 and 42 are the foundation and inspiration of this court’s decision in that case.

The Respondent’s Reasons.

In his submissions to this court senior Counsel for the respondent minister, Mr.Gallagher, relied on a number of cases dealing with the

sovereign right of the State to maintain social order by controlling the entry of non-nationals into the State and their movement when

within the State. In Osheku v. Ireland [1986] IR 733 Gannon J. put the position as:

“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 it is in the interests of the common good of the 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 time. 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.”

Similarly in Pok Sun Shun v. Ireland [1986] ILRM 593, Costello J. held that the rights given to the family under the Constitution were

not absolute and that the provisions of the Aliens Act, 1935 and the orders made under it were permissible restrictions. This line of

authority was endorsed by this court in Laurentiu v. Minister for Justice [1999] 4 IR 27 and more recently In Re Article 26 of the

Constitution and the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360. The respondent argues that these cases establish

that the provisions of the Aliens Act, 1935 and of the present system of immigration control prevail over the constitutional rights of

the family members of a citizen and that the family members of a citizen may be deported.

The minister puts forward a number of reasons why the deportation orders made in respect of the members of the Lobe family and in

respect of Mr Andrew Osayande should not be revoked. These reasons are most clearly set out in the memoranda which were drawn

up for the minister’s consideration by Mr John Lohan, principal officer in the Department of Justice, Equality and Law Reform in both

cases (the Lohan memoranda). These memoranda are very similar in both cases and they set out the situation of the families in a

clear and fair manner. The full text of the memoranda have already been set out in other judgments and I will confine myself to

referring to the final passage headed “Recommendation”. This passage reads as follows:

“13. I believe that it is in the common good that the deportation orders made in respect of this family should be affirmed. The

interests of maintaining the common good outweigh any claims made on behalf of the Osayande family. The common good

would be ensured through the minister having as his priority the protection of the asylum and immigration systems in the

absence of sufficiently strong features to ignore that priority.

14. Having considered all the material in this case, I recommend that the minister should not revoke the deportation order

made in respect of Mr Andrew Osayande. The effect of the enforcement of this order will be a temporary separation of Mr

Osayande from his wife and two children, one of whom is an Irish citizen. On the basis of the family protection claimed by the

applicant it is presumed that Mrs Osayande and dependants will decide as to whether they wish to accompany Mr Osayande in

the completion of his asylum claim in the UK and thus preserve the family. This matter will be addressed in due course by the

Refugee Applications Commissioner.

15. The reasons for this recommendation are:-

The length of time the family has been in the State - only seven months at this stage but less than four months at the

time of making the deportation order,

the application of the Dublin Convention to which Ireland is a party,

the overriding need to preserve respect for and the integrity of the asylum and immigration systems.”

The written submissions to this court on behalf of the respondent conclude by giving a similar list of reasons as follows

“The respondent was entitled to conclude that the deportation order made in respect of the Lobe family and Mr Osayande

should not be revoked and that their application for residency in the State should be refused on the basis of (a) the length of

time the Lobe family and Mr Osayande had been in the State; (b) the adaptability of Kevin Lobe and Osaze J.Osayande; (c) the

fact that the lives of Kevin Lobe and Osaze J. Osayande would not be endangered if they were returned to the United

Kingdom, (d) the State’s interest in applying the Dublin Convention (e) the overriding need to preserve respect for the

integrity of the asylum and immigration system.”

The first of these reasons is related to the Fajujonu decision and will be discussed under that heading. The second reason relies, as

far as I understand it, on a pure assertion of belief that young children are adaptable. There is no detailed or evidential consideration

as to whether these particular children are adaptable. The third and fourth reasons are related to the operation of the Dublin

Convention to which I will refer later in this judgment. The final reason is indeed, as stated, the overriding reason - the need to

preserve respect for the asylum and immigration system.

There is no doubt that the preservation of the integrity of the asylum and immigration system is an important factor and has been

accepted by this court as being necessary for the common good. It is clearly undesirable that the proper administration of this system

should be distorted and that certain immigrants or asylum seekers should gain undue priority if that is unjustified. These are serious

matters which must be given due weight.

The Fajujonu Decision

Since this decision played such an important part in the arguments of both sides before this court it is necessary to consider it in

some detail. The plaintiffs in the case were a husband and wife together with their Irish born daughter. The husband was a Nigerian

citizen and the wife a Moroccan citizen. They were married in London in 1981 and shortly thereafter moved to Ireland and remained in

this country without notifying the authorities. Their daughter was born in Ireland in September, 1983 and was therefore an Irish

citizen. In December, 1983 Dublin Corporation allocated them a three bedroom house. Two further children were born, also Irish

citizens. The husband came to the notice of the authorities when he sought a work permit for employment in Ballyfermot. The Minister

for Labour refused to grant him a work permit because he was an illegal alien. The Minister for Justice requested the husband and wife

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

because the husband was unable to support his family without assistance from the State. Although no deportation order had yet been

made the plaintiffs instituted proceedings in the High Court seeking orders restraining their deportation together with other reliefs. In

the High Court Barrington J. refused the reliefs sought, stating that since the rights of the family were guaranteed by the Constitution

in the context of the welfare of the nation and the State and having regard to the common good, the laws enacted by the Oireachtas

for the control of the movements of aliens were permissible limitations upon the family and personal rights of the plaintiffs. In his

judgment Barrington J. referred in particular to the judgment of the then President of the High Court (Finlay P.) in The State (M) v.

The Attorney General [1979] IR 73. At p.156 of the report the learned judge stated, quoting that case:

“The former President then continues in a passage which Mr McDowell, on behalf of the plaintiffs, relies on very heavily. The

passage reads as follows:-

‘In the instant case where I am dealing with a child who is under the age of one year and is therefore under the age of

reason, such a personal right must be construed, in my view, in the same way as the courts have consistently

construed the right of liberty of such a child, that is to say as being a right which can be exercised not by its own choice

(which it is incapable of making) but by the choice of its parent, parents or legal guardian, subject always to the right of

the Courts by appropriate proceedings to deny that choice in the dominant interest of the welfare of the child. So

construed, the right of travel constitutionally arising for this particular child on the existing legal provisions for its welfare

consist, in my view, of the right to travel with the approval or consent of its mother provided that such travelling, and

the purpose of it, do not appear to conflict with the welfare of the child.’

The learned President was dealing in the case referred to with a comparatively straightforward clash between the rights of the

child on the one hand and the rights of the State on the other. He is adding that, in the case of a child of tender years, a

parent may make the child’s choice for him subject to the court being satisfied that the dominant interest of the welfare of

the child is being achieved.

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 of the society of its parents

in the State?”

Later in his judgment Barrington J. refers to the family’s rights under Articles 41 and 42:

“The rights of the family are declared to be ‘inalienable’ which means that they cannot be surrendered or given away. They

are also declared to be ‘imprescriptible’ which means that they cannot be lost or forfeited through the wrongful act of a third

party over a period of time. One is therefore driven to the conclusion that the Constitution reserves to the family a certain

sphere of authority and that within this sphere it has inalienable and imprescriptible rights. But this does not mean that the

sphere of authority is unlimited or the rights absolute. There are certain matters which are outside and beyond the

competence of the family, for example, issues such as peace or war or the foreign policy of the State.”

The Plaintiffs appealed to this Court. Judgments were delivered by Finlay C.J. and Walsh J. Griffin J. expressed agreement with both

judgments. Hederman J. and McCarthy J. expressed agreement simpliciter. The issue before the court was clear; Finlay C.J. stated (at

p.161):

“It is quite clear from the terms of the pleadings in the High Court and from the terms of the very careful judgment of

Barrington J. that the plaintiffs’ case in the High Court was simply confined to a single net and complete issue, and that was an

assertion that the third plaintiff as a citizen of Ireland was entitled to the protection of the constitutional rights to which she

was entitled pursuant to Articles 40, 41 and 42 of the Constitution, and that amongst those rights was a right to remain

resident within the State and have preserved for her the family of which she was a member as a unit of society within the

State and to be parented by her parents within the State. That was asserted as an absolute right which could not be defeated

or infringed by any order made by the Minister pursuant to the Aliens Act, 1935. As an alternative to that it was asserted that

if the Act of 1935 purported to vest in the Minister a power to abolish or infringe the constitutional rights of the third plaintiff,

which I have shortly outlined, that that provision of the Act of 1935 was inconsistent with the Constitution and could not have

been carried forward pursuant to Article 50 of the Constitution. 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] IR 733 and by Costello J. in Pok Sun Shun v. Ireland [1986] ILRM 593 and his own decision in The State

(Bouzagou) v. Station Sergeant, Fitzgibbon Street [1985] IR 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 on 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 effected 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 for 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.”

Finlay C.J., in the central core passage of his judgment, went on to say:

“I have now come to the conclusion that 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 a family unit within the State containing children who are citizens, that there can be

no question but that those children, as citizens, have got 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 would be entitled to exercise within the State.

I am also satisfied that whereas the parents who are not citizens and who are aliens cannot, by reason of their having as

members of their family children born in Ireland who are citizens, claim any constitutional right of a particular kind to remain

in Ireland, they are entitled to assert a choice of residence on behalf of their infant children, in the interests of those infant

children.

Having reached these conclusions, the question then must arise as to whether the State, acting through the Minister for

Justice 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 with what is clearly a constitutional right.

The discretion, it seems to me, which in the particular circumstances in 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 the 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 a grave and substantial reason associated

with the common good.

On the findings of fact which have been made by the learned trial judge there is not any finding that the existence of

important family rights in the children of this marriage have been ignored or brushed aside in the investigations carried out on

behalf of the minister. Neither, however, is there a finding nor any evidence, it would appear to me, to support a finding of a

careful consideration of those rights and the particular importance attached to them by reason of their constitutional origin.

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 not the probability of very substantial change since this

matter was investigated in 1984.

In these circumstances I am satisfied that the protection of the constitutional rights which arise in this case require 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.”

Walsh J. in his judgment referred to the Aliens Act 1935 as conferring extensive powers on the Minister for Justice to make orders

concerning aliens either in general or of a particular nationality or other class. These included the power to restrict or prohibit entering

the State or leaving the State and provided for the exclusion or deportation of such persons from within the State. The learned judge

went on to say:-

“It is abundantly clear that citizens of this State may not be deported. The third Plaintiff is one of three children of the first

two Plaintiffs, all of which children are citizens of Ireland. If the first two Plaintiffs, being the parents of the infant children, are

deported, the effect must be that their children who are Irish citizens are faced with the choice of remaining within this State

as they are entitled so to do and therefore being in effect compulsorily separated from their parents, or having to leave the

State with their parents and thus ceasing to have the benefit of all the protection afforded by the laws and the Constitutions

of this State. 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. There is no doubt that the family has made it its home and residence in Ireland.”

The learned judge then went on to refer to the decisions in Pok Sun Shun v Ireland and Osheku v Ireland (mentioned above) and also

to the State (Bouzagou) v Sergeant Fitzgibbon Street. He pointed out that Mr and Mrs Fajujonu had entered the country illegally and

that it was admitted that they knew that they were resident in Ireland illegally. Walsh J. continued

“The father openly applied through his prospective employer for a permit to work as an alien from the Minister for Labour. He

was refused that permit on the grounds that he was an unauthorised alien and one of the reasons advanced for refusing him

permission to stay in the country was that he was unable to support his family without assistance from the State. The reason

he was unable to support his family was precisely because he was refused permission to work. Therefore in effect he was not

being permitted to support his family within the State because he was not permitted to work. Such a position could not arise

in respect of the support of his family if the parents were citizens and therefore to that extent the members of the family

who were Irish citizens were suffering discrimination by reason of the fact that their parents were aliens. The question which

arises therefore is whether a family, the majority of whose members are Irish citizens, can effectively be put out of the

country on the grounds of poverty. The dilemma posed for the parents by this attitude is that they must choose to withdraw

their children, who are Irish citizens, from the benefits and protection of Irish law under the Constitution or, alternatively, to

effectively abandon them within this State, which would then be obliged to support them.

In view of the fact that these are children of tender age, who require the society of their parents and when the parents have

not been shown to have been in any way unfit or guilty of any matter which make them unsuitable custodians to their

children, to move to expel parents in the particular circumstances of this case would, in my view, be inconsistent with the

provisions of Article 41 of the Constitution guaranteeing the integrity of the family.

The Act of 1935 did not in any way contemplate a situation in which infant citizens of this State could in effect be deprived of

the benefit and protection of the laws and Constitution of this State. In my view, therefore, the Act is not inconsistent with

the Constitution but it will 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 reason other than poverty, particularly when that poverty has been effectively induced by the

State itself.

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 re-considered 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 aim sought to be achieved as to be unsustainable.”

The appeal of the Fajujonu Plaintiffs was therefore dismissed, but rigorous standards were set in both judgments in regard to reasons

which might justify the Minister in deporting the family in that case. In the case of the Chief Justice the requirement is expressed as

“a grave and substantial reason associated with the common good”. In the case of Walsh J. the requirement was that the reasons

had to be 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 aim sought to be achieved as to be unsustainable.

It is abundantly clear, however, that neither Finlay C.J. nor Walsh J. suggested that the personal rights of the child, or the rights of

the family, were absolute. For proper and proportionate reasons these rights must yield to the requirements of the common good. This

was clearly accepted, through their Counsel, by the Applicants in the present cases. The fact that these rights are not absolute is

not in issue.

Reference was made in argument in the present cases to the fact that a family may be broken up by the conviction and imprisonment

of one of its members. Such a division of the family would be constitutionally valid. In Pok Sun Shun v Ireland ILRM 593 at page 597

Costello J. (as he then was) stated:-

“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 S.C. 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.”

Walsh J. in his judgment in Fajujonu (at page 164) in fact rejected the comparison made by Costello J. in the Pok Sun Shun case.

However, in the context of the present cases, it seems to me that the comparison with imprisonment of a member of a family is

unnecessary rather than incorrect. The Applicants accept that the rights in question are not absolute. They accept that a member of

a family may be deported where sufficiently grave reasons exist. In particular Senior Counsel for the Applicants agreed that an

example of such a reason would be criminal behaviour on the part of the immigrant concerned. The Immigration Act 1999 reflects this

in providing at section 3(2) that a deportation order may be made in respect of “a person who has served or is serving a term of

imprisonment imposed on him or her by a Court in the State.” No suggestion has been made that this provision conflicts with

constitutional rights. The right of the State to deport immigrants, who have committed crimes, even if this results in the breaking up

of their families, was not put in issue by the Applicants.

Following the decision of this Court, the Fajujonu proceedings do not appear to have come before the Courts again and one assumes

that the family was permitted to remain in the country. It seems that it has been the normal practice of the Minister since the

Fajujonu case to permit the parents of the Irish-born children of immigrants to remain in this country.

In his judgment, as quoted above, the learned Chief Justice held that the Fajujonu parents were “entitled to assert a choice of

residence on behalf of their infant children, in the interests of those infant children.” In the course of oral argument before this Court

in the Lobe and Osayande cases a question was raised as to whether this dictum formed part of the ratio decidendi of the Court’s

decision. This question does not appear to have arisen in the High Court; in Smyth J’s analysis of the issues he states that the

Respondent accepted that “there is a prima facie entitlement of the parents to make a decision on behalf of the Irish-born child to

reside within the State.” The issue is not raised in the Respondent’s written submissions. Nor does the Respondent challenge the

finding of the High Court by a notice to vary or otherwise.

With all respect to those who think otherwise, I find it difficult to see how the Chief Justice’s dictum can be other than part of the

ratio of his (and indeed Walsh J’s) decision. Finlay C.J. makes it clear in the immediately preceding sentence that the parents cannot

claim any constitutional right of their own to remain in Ireland. Any right of the parents to remain must therefore in the terms of the

judgment arise from the right of the children to remain. While, as citizens, the children may not be deported, it is not suggested that

they are compelled to remain here because they are citizens. As citizens they may choose to remain here or to leave; as infants they

are incapable of making that choice for themselves. It therefore, as seen by Finlay C.J., falls to their parents to assert their choice

for them.

It is only as a result of that choice that the parents may assert as part of the rights of a family under Articles 41 and 42 that they,

too, have a right, albeit not an absolute right, to reside with the children in this country. The issue of the parents’ right to remain and

the findings of the Court in that respect are built on the assertion of the child’s choice, which must therefore in my view be an

inherent part of the ratio of the decision. In the absence of any direct challenge to the Fajujonu decision, therefore, it must be

assumed to be binding on this Court.

The first of the list of reasons given by Mr Lohan in his memorandum to the Minister was the length of time the Lobe and Osayande

families had been in the State. Counsel for the Minister relied strongly both in written and oral submissions on the argument that the

present cases should be distinguished from the Fajujono case on the time factor and on the number of Irish citizens involved. In the

Fajujono case by the time the matter came for hearing before this Court the family had been resident in Ireland for some eight years

and also there were three Irish-born children in the family, two of whom had been born since the initiation of the proceedings. Senior

Counsel for the Respondent, Mr Gallagher, drew attention to the passages in the judgments of Finlay C.J. and Walsh J in which

reference was made to these facts. Finlay C.J. noted that that the aliens concerned had “in fact resided for an appreciable time in

this State” and referred to “this family, as it now stands, consisting of five persons three of whom are citizens of Ireland”. (page

162).

Walsh J. (at page 164) stated:

“There is no doubt that this family has made its home and residence in Ireland.”

and referred to the family as “a family, the majority of whose members are Irish citizens”. Counsel argued that these factual

circumstances were no doubt an important, if not crucial influence on the decision of this Court and that the instant cases should be

distinguished from Fajujonu on these factual grounds.

The families in the present cases had been in Ireland for a very much shorter time. The Lobe family arrived in Ireland on 31st March

2001 and the Osayande family shortly thereafter on 6th May 2001. Each family has only one Irish-born child. Their circumstances

were quite different from the Fajujonu family and, Mr Gallagher submitted, their cases were clearly distinguishable from that of the

Fajujonu’s.

Senior Counsel for the Applicants, Mr Hogan, stressed that despite their long residence in Ireland Mr and Mrs Fajujonu were at all

times illegal immigrants; their status was the same as that of the Lobe and Mr Osayande. While no deportation order had been made

in respect of the Fajujonus they had been requested to leave the jurisdiction and when they initiated their proceedings they clearly

anticipated that a deportation order would be made and endeavoured to prevent this.

On the facts there is no doubt that the facts in the present cases can be differentiated from those in Fajujonu, and it may well be

that both Finlay C. J. and Walsh J. had a degree of sympathy for the particular human circumstances of the Fajujonu family. I do not

believe, however, that the Fajujonu decision was merely a type of sympathetic aberration, which can readily be set aside if the

detailed circumstances of another case are different. The Fajujonu decision was firmly grounded on the “full recognition of the

fundamental nature of the constitutional rights of the family” Finlay C.J. (at Pg. 162). It follows on from and is consistent with the

powerful line of decisions on the constitutional rights of the family which went before it. Is the fundamental nature or importance of

these rights altered by the length of residence of the Irish-born child or the number of children in the family? If length of residence or

number of children is to be the test in the Lobe and Osayande cases, what is to be the proper test in future cases? Must all families

in a similar legal situation measure up to the Fajujonu length of residence and number of children? Or in another case would, say, five

years residence and two Irish-born children be sufficient? It must be borne in mind that the Minister is not challenging the Fajujonu

decision itself. If this Court’s decision is to distinguish these cases from Fajujonu on length of residence and number of Irish-born

children it seems to me that a situation will be created where future cases must be pleaded and decided on a “sympathy” basis, on

the varying circumstances, carrying with it the danger of inconsistency and arbitrariness.

In this context it is notable that in their commentary on the Fajujonu case the authors of Kelly on the Constitution (3rd edition page

1002) remark:

“There is evidence in the passages quoted from both judgments that the judges were influenced by the fact that the Plaintiffs

had resided in Ireland for quite some time and that the family had made its home here. An obvious implication is that an alien

family, one of whose children is fortuitously born in the country, thereby acquiring citizenship, might not be in the same

fortunate position as the Fajujonus when it comes to the matter of deportation. However it is submitted that, as the rights of

the child derive from its citizenship, the length of time which the family as a unit has resided in the State would appear to be

irrelevant in this context. For once the child, as a citizen, is entitled to reside in the State it is difficult to see how its right to

the company, care and parentage of its parents, derived from Articles 41 and 42, can depend on the length of this period of

residence. Furthermore, in policy terms, the desirability of promoting and protecting the psychological bond between parent

and child must also call into question any linkage between the child’s rights to the company of its parents and the length of

time which the family has resided in the State.”

The same must surely apply to the number of Irish-born children in the family. Bearing these factors in mind I do not consider that the

present cases can properly be distinguished from Fajujonu on this basis.

I therefore turn to the final reason given by the Minister for the affirmation of the deportation orders – the need to preserve respect

for and the integrity of the asylum and immigration systems. This is described as an “overriding” need in Mr Lohan’s memorandum. It is

well established that the State has a right to set up, as it has done by statute, a controlled immigration system. Also under the terms

of the Geneva Convention it has accepted the obligation to provide asylum in properly defined cases. This Court has accepted in

earlier cases that the maintenance of the integrity of the asylum and immigration system is a legitimate and proper aim for the

Respondent Minister and for the State authorities generally. In the present cases, however, the question at issue is whether this

particular reason is sufficient to meet the standards set by this Court in Fajujonu, and whether it is sufficient to outweigh the

family’s, and the child’s constitutional rights. Finlay C.J. held that “in the light of a full recognition of the fundamental nature of the

constitutional rights of the family” the reason for the removal of the family from the State “has to be a grave and substantial reason

associated with the common good.” The Minister (and the Court) have to be “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”. Walsh J. concludes his

judgment by stating:-

“In my view he (the Minister), for stated reasons, that the interest 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 aim sought to be achieved as to

be unsustainable.”

Senior Counsel for the Appellants, Mr Hogan, argues that in the circumstances of this case the reason which would justify a

deportation order would have to be a matter connected in a personal way to the immigrant concerned – such as for instance criminal

behaviour. I concur with Fennelly J. that this need not necessarily be so, since the immigrant concerned might belong to a particular

group whose presence in this country, on the evidence, might be inimical to the common good. But even in the more general situation

where the illegal immigrant concerned may be part of a class which poses a danger to the common good, it seems to me to be

necessary for the Respondent to have before him in his consideration of the case some specific evidence of the danger to the

common good which is related to the illegal immigrant parents concerned, whether as individuals or as members of a class or group.

The parents in the Fajujonu case were at all times illegal immigrants. It could readily have been argued in that case that their

continuing presence in Ireland lacked respect for the integrity of the then immigration system. It is clear from the decision of this

Court that their illegal presence in the country was not in itself sufficient reason to outweigh the constitutional rights of the child and

the family. Walsh J. speaks of reasons which are “so predominant and overwhelming in the circumstances of the case” (my

emphasis). This surely envisages some reason more specific to the individuals in the family concerned than a general statement as to

the maintenance of the integrity of the asylum and immigration system.

In Osheku v Ireland [1986] IR 733 Gannon J., in the passage quoted earlier, spoke of the protection of the fundamental rights of the

State which “may involve restrictions in circumstances of necessity” on the fundamental rights of individual citizens (my emphasis).

It seems to me that if the State is to rely, as it does, on this dictum the “circumstances of necessity” which permit it to restrict not

alone the rights of the individual citizen but the rights of the family should be set out fully, explicitly and in detail.

A further difficulty with this reason as framed by the Minister is that it is so general in nature, that if accepted in this case, it could

be applied in every case, including a future case with facts similar to Fajujonu, thus, as it were, overturning Fajujonu by the back

door. There is a danger in my view that phrases such as “respect for the integrity of the immigration and asylum system” or

“preserving the integrity of the immigration and asylum system” can become too widely used. There are, of course, situations where

the need to preserve and maintain the integrity of the immigration and asylum system is a perfectly sufficient and satisfactory reason

for the Minister to make deportation orders affecting illegal immigrants; a number of them had been the subject of decisions by this

Court. But in my view it is questionable whether such a general and undefined reason can be sufficient in a case where the

constitutional rights of an Irish citizen and his or her family are at stake. In my view “the grave and substantial” or “predominant and

overwhelming” reasons must be defined reasons, and reasons justified by evidence as to their actual impact on the common good of

the people of Ireland.

United States Cases

A number of cases decided in the Courts of the United States were opened to the Court by Counsel for the Respondent, for example,

Perdido v Immigration and Naturalisation Service, [1969] US App.: United States Court of Appeals for the Fifth Circuit), Acosta v

Gaffney [1977] US App: (United States Court of Appeals for the Third Circuit) and Gonzalez-Cuveas v Immigration and Naturalisation

Service [1975] US App: (United States Court of Appeals for the Fifth Circuit). These dealt with circumstances somewhat similar to the

present cases, where a child was born in the United States to parents who were illegal immigrants, or, as it is sometimes described,

undocumented immigrants. Since the United States accepts the ius soli rule, the children in these cases were United States citizens.

The United States Courts recognised the importance of the family and its rights, but nevertheless refused to permit the illegal

immigrant parents to remain in the United States, even if this meant in the words of the Court the “constructive deportation” of the

US citizen child.

The difficulty in accepting the reasoning in these cases as being wholly persuasive, however, is that there is no equivalent in the

United States Constitution to Articles 41 and 42 in Bunreacht na h-Eireann. Given that the ratio in Fajujonu is firmly and explicitly

based on the family rights set forth in Articles 41 and 42, and given that the Respondent accepts the reasoning and the decision in

Fajujonu, it seems to me that the United States decisions, however carefully reasoned, cannot be of decisive influence on this Court

in deciding the present cases.

Dublin Convention

A further reason given by the Respondent for the confirmation of the deportation orders is the application of the Dublin Convention to

which Ireland is a party. In regard to this aspect of the case I entirely agree with the views expressed by Fennelly J. and have

nothing to add.

Proportionality

Finally, in his judgment in Fajujonu Walsh J. refers to the action of breaking up the family being “not so disproportionate to the aim

sought to be achieved as to be unsustainable”.

The Appellants dealt in their submissions with this principle of proportionality. This principle was expressed by Costello J. (as he then

was) in Heaney v Ireland [1994] 3 IR 593 (at 607) thus:-

“In considering whether a restriction on the exercise of rights is permitted by the Constitution, the courts in this country and

elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraint on

the exercise of protected rights, and of the exigencies of the common good in a democratic society…The objective of the

impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to

concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They

must:

“(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations,

(b) impair the right as little as possible, and

(c) be such that their effects on rights are proportional to the objective. Chaulk v R [1990] 3 S.C.R. 1303 at pages 1335

and 1336.

Cox v Ireland [1992] 2 IR 503 is an example of a case in this country in which disproportionate means to obtain a legitimate

object invalidated a statutory provision. It dealt with the constitutional validity of section 34 of the Offences Against the State

Act 1939. That section provided that whenever a person convicted by a Special Criminal Court of an offence set out in the

schedule to the Act was, at the time of his conviction, an employee of the State, then he should forfeit his office or

employment and be disqualified from holding office or employment in the State Service for a seven year period. In holding that

the section was invalid, the Supreme Court pointed out that:-

‘the State is entitled, for the protection of public peace and order, and for the maintenance and stability of its own authority

by its laws to provide onerous and far reaching penalties and forfeitures imposed as a major deterrent to commission of

crimes threatening such peace and order of State Authority, and is also entitled to ensure as far as practicable that amongst

those involved in the carrying out of functions of the State does there is not included persons who commit such crimes.’ (page

523).

But the Court went on to point out that in pursuing these objectives the State must continue to protect as far as is

practicable the constitutional rights of the citizen. Having examined the operation of the section it concluded that because the

State had not as far as was practicable protected the citizens constitutional rights, notwithstanding the fundamental interests

of the State which the section sought to protect, the provisions of this section were impermissibly wide and indiscriminate.”

The Appellants submit that the interference with the constitutional rights of the family in the present cases amounts to a denial of

fundamental constitutional rights. They argue that the aim or objective upon which the Respondent seeks to rely in justifying that

denial falls far short of the objectives involved in the Cox case or in the Offences Against the State Act 1939. Indeed there was no

evidence before the Minister in the present cases that there was any real threat to public order or to the authority of the State.

If the Lobe and Osayande parents are now or in the near future to be deported from this country the Minister assumes that they will

take their Irish-born children with them. Indeed he goes so far as to say that this is their duty under Articles 41 and 42 of the

Constitution. It is not, one understands from correspondence in the case, entirely certain that this will be the case. Leaving aside

these particular cases it is certainly possible to envisage situations where illegal immigrant parents might regretfully but sincerely

believe that it was contrary to the interests of their Irish born children to bring them back to a country where the child’s welfare

might be under threat for reasons arising from, say, religion, gender or tribal origin. In the situation faced by the Lobe and Osayande

families they have an unenviable choice between breaking up their families or denying Kevin Lobe and Osaze J. Osayande their right to

reside and be brought up and educated in their native country – their “entitlement and birthright” to be “part of the Irish nation”.

I would accept the submission of the Appellants that the overriding reason for maintaining the deportation orders as framed by the

Minister is not proportionate to the effect which his proposed course of action will have on these families. It seems to me that it

could not be said, in the words of Costello J., to “impair the right as little as possible” or to be such that its effect on the families

rights is proportional to the objective to be achieved.

The matter of the standard for judicial review of administrative decisions was not argued in this case and was specifically stated by

Counsel for the Respondent not to be relevant to the case. I would, however, concur with Fennelly J. in believing that where

constitutional rights are at stake as in this case the standard of judicial scrutiny as set out in particular in O’Keeffe v An Bord Pleanala

[1993] 1 IR 39 may fall short of what is likely to be required for their protection.

I made reference to this question and to the approach taken to it by judges in the United Kingdom in my judgment in Z v The Minister

for Justice Equality and Law Reform (Supreme Court, unreported, 1st March 2002). I said:-

“The outcome of judicial review proceedings in many cases and in many contexts is of crucial importance to Applicants. The

Court is committed to submitting the decision making process in all cases to careful scrutiny… I have a certain difficulty in the

interpretation of the phrases used by the English Courts in the cases to which we have been referred – ‘anxious scrutiny’, -

‘heightened scrutiny’, and similar phrases. From a humane point of view it is clear that any Court will mostly carefully consider

a case where basic human rights are in question. But from the point of view of the law, how does one define the difference

between, say, ‘scrutiny’, ‘careful scrutiny’, ‘heightened scrutiny’, or ‘anxious scrutiny’? Can it mean that in a case where the

decision making process is subject to ‘anxious scrutiny’ standard of unreasonableness/irrationality is to be lowered? Surely not.

Yet it is otherwise difficult to elucidate the legal significance of the phrase. It must be said that this aspect of the case was

not fully argued before this Court so that my remarks in this context are merely a preliminary impression. Further

consideration must await a fuller argument in a future case.”

In this context I bear in mind the dictum of Finlay C.J. in O’Keeffe v An Bord Pleanala (at page 72):

“I am satisfied that in order for an Applicant for judicial review to satisfy a Court that the decision making authority has acted

irrationally in the sense which I have outlined above so that the Court can intervene and quash its decision, it is necessary

that the Applicant should establish to the satisfaction of the Court that the decision making authority had before it no relevant

material which would support its decision.”

If this standard is to be applied, especially when it is combined with a generalised reason such as respect for the integrity of the

immigration and asylum system, it makes, as pointed out by Fennelly J., the decision in cases such as the present virtually immune

from review. On this account it would, in my view, be of assistance to have this matter fully argued in a future case.

Conclusion

In conclusion, given the repeated emphasis by this Court in its decisions over the years on the nature, weight and importance of the

rights of the family set out in Articles 41 and 42 of the Constitution – rights which the Minister accepts are rights possessed by these

children and these families – I am not satisfied that respect for the maintenance of the immigration and asylum system is sufficiently

grave and substantial a reason or so predominant and overwhelming a reason in the circumstances of the cases and in the context of

the common good to justify the denial of the constitutional rights of these children and their families. I would allow the appeal.