IESC 3 · Supreme Court

[2003] IESC 3

THE SUPREME COURT

109/02 & 108/02

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

Geoghegan J.

Fennelly J.

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 Mr. Justice Hardiman delivered the 23rd day of January, 2003.

1. These cases concern two families who sought asylum in England on the basis that they were refugees from their respective

countries of origin. When these applications were unsuccessful, they came to Ireland and made identical applications here. On arrival,

each of the wives was pregnant. It was decided, pursuant to the relevant international convention, to send the applicants back to

England to complete the asylum procedure where they had started it. Before this decision could be implemented, each wife gave birth

to a child in Ireland.

2. It is now claimed that this event effectively confers a right to remain indefinitely in Ireland on the parents, and any brothers or

sisters, of the Irish born child. It is conceded that this right, if it exists, would be unique in the world. But it is said to follow,

inexorably or virtually so, from the child’s Irish citizenship and from the constitutional status of the family.

ASYLUM AND PARENTHOOD: THE CLAIM.

3. Over the last six years or so Ireland has received a greatly increased volume of applications for refugee status, now exceeding

11,500 applications per year. Typically, these are made by persons who arrive in the State for that purpose rather than applying from

abroad, even from a safe country. Each application requires to be examined in a painstaking manner under our domestic legislation and

our international obligations. The applicant typically stays in the State while this is done. There is detailed provision in law for the

examination of the application, for appeal to an independent tribunal and for unsuccessful applicants to seek that they should not be

deported on humanitarian grounds. For those who are unsuccessful at each of these stages, there is scope to seek judicial review of

an adverse decision in the courts, which is widely availed of. To assist their participation in these procedures, the State makes

available to applicants an elaborate system of legal advice and free legal representation, as well as Social Welfare or direct provision

for their needs. All this is as it should be.

4. But these elaborate procedures take time and will always do so, even administered with maximum efficiency. A year to eighteen

months is not an untypical time span. One consequence of this is that female applicants who are pregnant at the time of their arrival

in the State or become so thereafter may give birth to a child in Ireland. This case is concerned with the consequences of that event

for the parents and siblings of this Irish born child, and for the State in dealing with them and providing for them. Only a small

percentage of applications for refugee status turn out to be well founded. In the other cases, deportation or voluntary repatriation is

the normal consequence of the failure of the claim. The fact that only a small percentage of asylum applications are successful is

emphatically not a relevant consideration in considering any particular application. The human and legal consequences of refusing

asylum where it is properly sought are so grave that each application must be meticulously examined on its own merits. But the fact

that the system must deal with a large number of cases which turn out to be unmeritorious is a significant factor in the length of time

which elapses before any particular application is finalised. If, however, a child has been born in Ireland to applicants for asylum in the

interval between their application and their departure, it is submitted that the very fact of the birth virtually precludes their

deportation and that of other family members.

THE ISSUE IN ITS FACTUAL BACKGROUND.

5. I gratefully adopt the findings of fact in the judgment of the learned trial judge, which have not been challenged on the hearing of

this appeal. I set out below a brief summary of those facts which seem particularly relevant only.

6. Apart from the two Irish born children the applicants in these cases are all individuals who have no personal right to be or to remain

in the State. Each of them left their native countries (the Czech Republic and Nigeria respectively) and went to the United Kingdom.

They all applied for asylum there on the grounds that they were refugees. These applications were refused. They subsequently came

to Ireland and made identical applications here. In the case of the Lobe family the previous history in the United Kingdom was

disclosed; in the Osayande case it was concealed. Pursuant to the provisions of the Dublin Convention, each was, in view of their

history, liable to be sent to the United Kingdom for the further consideration of their asylum application. The United Kingdom has

agreed to accept the transfer of each applicant for that purpose. It is common case that there is no reason to believe that the

United Kingdom will not comply with its obligations under the 1951 United Nations Geneva Convention as amended by the 1967 New

York Protocol, and with its obligations under the Dublin Convention. In these circumstances, the Minister made deportation orders in

respect of each applicant. The applicants seek to quash these orders.

7. In each case, the mother of the family to which the applicants belong was pregnant at the time of coming to Ireland in early 2001,

and each gave birth to a child in the latter part of that year. Each of these children was referred to in the course of argument as an

“Irish born child”.

8. Following the birth of the respective children, the applicants stated in their proceedings that the Irish born child, who is, of course,

an Irish citizen, wished to remain in Ireland. On that basis, and on the further basis that the child is a member of a family as that term

is used in the Constitution, and, therefore, entitled to the society of the other members of the family, the applicants assert that

neither the parents nor any siblings of an Irish born child may be deported other than in rare and extreme circumstances, for a

“special and overwhelming reason”. These circumstances, it is claimed, are limited to those arising from serious criminal convictions of

family members or to their being a threat to public order.

9. If this argument is correct, then parents who have no personal right to reside in the State will acquire a right to reside here if it

happens that a child is born to them here. This may occur for any number of reasons, including chance, misfortune, emergency,

arrangement or contrivance. The applicants contend that the circumstances of the birth are wholly irrelevant. The sole consideration,

they say, is that a child was in fact born into each family in Ireland. Once this has happened, the circumstances in which it

happened, the length of time the family was in Ireland, and the dealings which preceded the birth in Ireland are all equally irrelevant,

in the submission of the applicants.

A NOTE ON TERMINOLOGY.

10. Accordingly, it is claimed that the birth of an Irish born child transforms the entitlements of his or her parents and siblings to

remain in the country. The dramatic nature of this transformation is reflected in the language used in arguing the case. The Irish born

child was described by counsel for the appellants as “the anchor child”, presumably because he or she is seen as the anchor securing

the rest of the family to this country. The birth of such child was contended to have a dramatic effect on the position of family

members who were, at the time of the birth, liable to deportation. It is said to make such deportation virtually impossible since (again

in the words of counsel for the appellants) “the immigration stork has landed”. Counsel for the respondents, who regarded the same

development as having a much less dramatic effect, characterised the birth of the child and the argument it opens to the parents as

“a fortuity”.

Citizenship

11. The first contention of the applicants relates to the citizenship of the Irish born child and what they say follows from this

citizenship.

12. The persons entitled to Irish citizenship have been specified in law at all times since the creation of the Irish Free State. Article 3

of the Irish Free State Constitution provided for citizenship for those domiciled in the State on the date of coming into operation of

the Constitution (6th December, 1922) on one of three alternative bases. These were birth in Ireland; birth of one parent in Ireland or

continuous residence by the putative citizen “in the area of the jurisdiction of the Irish Free State (Saorstát Eireann) for not less than

seven years.”

13. The Irish Nationality and Citizenship Act of 1935 was the first legislative provision for Irish citizenship. It closely followed the

scheme of The British Nationality and Status of Aliens Act, 1914 by providing for citizenship by birth or descent. It provided that

persons within the scope of this provision be referred to as “natural-born citizens”.

14. Article 9 of the Constitution provides for citizenship for any person “who is a citizen of Saorstát Éireann immediately before the

coming into operation of this Constitution”. Article 9(1)(2) provides:

“The future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law.”

15. Modern Irish citizenship stems from the Irish Nationality and Citizenship Act, 1956, as amended. This provides, at s. 6(1) that

“Every person born in Ireland is an Irish citizen from birth”. Citizenship can also be acquired by descent.

16. Article 2 of the Constitution, dating in its present form from 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.”

17. This form of words involves and perhaps elides the two concepts of nationality and of citizenship. All persons born in Ireland are,

by s.6 of the Act of 1956, citizens of Ireland. What the first sentence of Article 2 acknowledges is their entitlement “to be part of the

Irish Nation”. The concepts of Irish nationality and of citizenship of Ireland are distinguished in the first two sentences of Article 2.

This corresponds to the distinction drawn in the Constitution between “the Nation” and “the State”. It is not clear to me that, as

regards citizens, the first sentence of Article 2 confers, as opposed to acknowledges, any right. Since, by Article 9.2 all citizens are

said to have a fundamental political duty of fidelity to the nation, it could hardly have been denied (even before Article 2 took its

present form) that such citizens are “part of the Irish Nation”. Having regard to the statutory provision mentioned above, the

question of whether being part of the Irish Nation necessarily involves a right to citizenship does not arise in this case. In the third

sentence of Article 2 it is the Nation, and not the State, which has a “special affinity with people of Irish ancestry living abroad who

share its cultural identity and heritage.” This relationship clearly does not imply citizenship or a right to it. On the other hand the

phrase “otherwise qualified in accordance with law to be citizens of Ireland” in the second sentence of the Article is (at least if one

ignores the statutory provision for citizenship) not easy to understand without an implication that the condition of being “part of the

Irish Nation” entitles one to citizenship.

18. Neither the “entitlement and birthright” mentioned in the Article’s first sentence, nor the “special affinity” mentioned in the third,

requires for its existence that the persons enjoying them should have been reared or educated in Ireland or should have resided here.

Irish birth alone is the precondition of the first. Even that is unnecessary for the “special affinity” which the State cherishes. A person

who may never have visited Ireland may enjoy this special affinity if he or she is of Irish ancestry and shares Ireland’s cultural identity

and heritage.

19. It may also be noted that the “entitlement and birthright” referred to is an option open to a person meeting the condition of Irish

birth, and not an intrinsic characteristic. The Article does not for example seek to claim that a British subject born in Ireland is

thereby automatically “part of the Irish Nation” or liable to the duty set out in Article 9 of “fidelity to the Nation and loyalty to the

State”. It is an option, personal to him and to be exercised at his discretion.

20. But the construction of Article 2 does not arise in this case. Firstly, on no view of the Article can it be read as conferring a

different status as citizen on the applicants than that which they enjoy by virtue of s. 6 of the Act of 1956. Secondly, the

respondents have not been concerned to deny the childrens’ claim to citizenship couched as it is (inter alia) in terms of Article 2.

Most fundamentally, the question at the nub of this case is not whether the Irish born children are citizens, which they most certainly

are, but what the consequences of that may be in the case of an infant Irish citizen who is a member of a family which contains

persons who are non-citizens and who are prima facie liable to deportation.

21. Ireland is unusual in its offer of citizenship to anyone born on its soil. Only a few European countries still grant automatic

citizenship on the basis of birth in a country’s territory. The United Kingdom and Australia repealed laws providing for citizenship on

the basis of birth in the country during the 1980’s. The best known provision for citizenship on the same basis is that contained in the

Fourteenth Amendment to the Constitution of the United States which provides that:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United

States and of the State wherein they reside”.

22. There is no doubt whatever but that each of the Irish born children of the families of the applicants is himself an Irish citizen. As

such, the child is himself immune from deportation and no deportation order has been made in respect of either. The point of greatest

novelty raised by the case is the capacity of such child to “anchor” the remainder of his family to the State, making it virtually

impossible (the applicants contend) to deport any member of his family at least while the child remains in the family’s care. It was not

seriously disputed that long before that state of affairs ended it would be open to the family members to apply for naturalisation, and

to engage in business or employment to support the child.

Anchoring

23. In the course of argument it was admitted by counsel for the applicant that he could not say that the right of the family of a

locally born child to remain in the latter country of birth had been recognised in any other jurisdiction anywhere in the world. But that

international reality, counsel said, did not at all prevent an Irish born child from being an “anchor” securing the rest of his family to

the State. That effect, counsel submitted, arose from the unique and uniquely strong assertion in Article 41 of the Constitution of the

position, rights, authority and prerogatives of the family.

24. Counsel for the applicants based his case very firmly on Article 2 of the Constitution, and the statutes which provide for the Irish

born child’s citizenship and on Article 41 which he contended secures the right of the Irish born child to be reared in Ireland by his

family.

25. It was not, however, contended that this right was an absolute or unqualified one. It was admitted that the parents had no right

to remain in the State other than one derivative from the Irish born child. The parents’ (or siblings’) right to remain in the State might

be defeated if there were a very grave reason for deporting them. But he submitted that such a reason would have to be not merely

very grave, but specific and personal to the family member in question – that he had a serious criminal conviction or was a threat to

public order. Specifically, he denied that “routine immigration reasons” or considerations of State policy towards immigration in general

(no matter how rationally defensible or well-founded such policy might be) could justify the deportation or transfer out of the country

of a member of the family of an Irish born child once “the immigration stork had landed”.

26. The applicants then invited the Court to examine the reasons given for the decision to deport them in light of the contentions

summarised above. Thus viewed, it was contended, the reasons given fell at the first hurdle. They substantially relied on

considerations of a general nature – the application of the Dublin Convention to which Ireland is a party, and the overriding need to

preserve respect for and the integrity of the asylum and immigration systems. They also referred to the short length of time each of

the applicant’s families had been in the State. The applicants contended that each of these matters was a wholly irrelevant

consideration.

Immigration and the State

27. This topic was very extensively canvassed in the judgment of this Court in In the Matter of Article 26 of the Constitution and

section 5 and section 10 of The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360, especially at p. 382 ff under the heading

“The Constitutional Status of Non-Nationals”. I respectfully agree with all that is said there. In particular, I would point to the

recognition in that judgment and in the judgment of Keane J. (as he then was) in Laurentiu v. Minister for Justice [1999] 4 I.R. 42

that a sovereign State enjoys, as a characteristic of its sovereignty, the power to expel or deport aliens. This is for the reason given

by Gannon J. in Osheku v. Ireland [1986] IR 733 where he said:-

“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 a State that it should have control of the entry of aliens, their departure, and their activities and duration of stay

within the State is and has been recognised universally and from earliest times. There are fundamental rights of the State

itself as well as fundamental rights of the individual citizens, and the protection of the former may involve restrictions in

circumstances of necessity on the latter. The integrity of the State constituted as it is of the collective body of its

citizens within the national territory must be defended and vindicated by the organs of the State and by the citizens so

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

the objectives declared in the preamble to the Constitution.”

28. I have ventured to reiterate that well known and often approved passage because of its centrality on the topic of the nature, as

well as the detail, of the State’s power to control aliens. It leads to the principle described in the judgment already referred to in

Laurentiu as follows:-

“the general principle that the right to expel or deport aliens inheres in the State by virtue of its nature and not because

it has been conferred on particular organs of the State by statute.”

29. The intrinsic and essential quality of this right of the State, and its antecedence to positive law including constitutional law,

means amongst other things that the cases quoted are applicable to the present statutory scheme for the regulation of immigration,

although some were decided in relation to an earlier statutory dispensation. It is also important to stress that the nature of this

power has been the same throughout recorded history and over a vast range of political and geographical conditions. In my judgment

in P, L and B v. the Minister for Justice, Equality and Law Reform [2002] 1 I.L.R.M. 16, I said:-

“The inherent nature of these powers in a State is demonstrated by their assertion over a vast period of history and from

the very earliest emergence of States as such, and its existence in all contemporary States even though these vary

widely in their constitutional legal and economic regimes, and in the extent to which the rule of law is recognised.”

30. The constitutional source of this power, and of all executive powers in relation to foreign affairs or otherwise, is now to be found

in Article 6.1 of the Constitution: it is part of the executive power which is there referred to. By the following sub-article, it is

exercisable exclusively by the relevant organ of State established by the Constitution, in this case the Executive Government,

responsible to Dáil Eireann and thus to the people of Ireland. Article 29.4 deals specifically with the Executive power in connection

with International relations. But the detailed exercise of the power in relation to aliens is now heavily regulated by law.

31. In Ireland, the United Kingdom, the United States and other common law jurisdictions, and in the Member States of the European

Union this inherent and intrinsic power is the subject of detailed regulation both by domestic law and by international instruments. The

most relevant of these for Ireland have already been mentioned: the 1951 Geneva Convention, as amended by the 1967 New York

Protocol and the Dublin Convention. There is detailed domestic provision ensuring the constitutional and human rights of applicants for

asylum will be protected. In these cases it is to be presumed, and the history of the cases and the arguments addressed to this Court

in any event demonstrate, that these rights have been fully vindicated in properly conducted proceedings. On the hearing of this

appeal no point was urged as to the applicants’ right to remain in the State on any basis other than that they were the parents or

siblings of an Irish born child. Accordingly, the issue on this appeal is strictly confined to the question as to whether the applicants’

status as members of the family of an Irish born child precludes their deportation.

32. The cases just cited, and others on the topic of the control of immigration, also deal specifically with the position of a non-

national who has family ties in this State. In Osheku, the person whose deportation was in question was married to an Irish citizen

and was the father of their child, another Irish citizen. In a passage immediately after that quoted above Gannon J. said:

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

of being considered entirely independently of the overall provisions over all of the Constitution. The personal liberty of the

citizen is probably the greatest of the fundamental freedoms. It must be in the interests of social order and the common

good from time to time in individual cases [necessary] to restrict the freedom of movement of a citizen within the State,

as for instance by imprisonment or hospitalisation. This necessity may prevail over the related constitutional rights of

members of the family of the individual concerned notwithstanding the recognition in the Constitution of the family “as the

natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible

rights, antecedent and superior to all positive law” and “as the necessary basis of social order and as indispensable to the

welfare of the Nation and the State.” [Article 41.1.1 and 2].

The right to reside in a particular place of the individual’s choice is not a fundamental or constitutional right of a citizen

whether he be married or single. The maintenance of social order, by imposing the sanctions of the law in the

administration of justice, is a fundamental right of the State and of the body of its citizens. The right, if such there be as

claimed in this case, of an individual citizen by reason of marriage or family bonds to have a place of residence of his or

her choice within the State, is not one that could or should prevent the imposition of the sanctions of the law in the

administration of justice.”

33. Having described the circumstances of Mr Osheku, the learned judge went on:-

“His marital status and the familial relations created by that lawful marriage can be recognised and protected by the State

“in its constitution and authority” while applying to him sanctions for non-compliance with the law. In my opinion the

prosecution of Mr Osheku for offences committed contrary to the provisions of the Aliens Act, 1935, or his deportation

pursuant to the powers conferred on the Minister for Justice, if such be his determination in the exercise of his discretion,

would not constitute an infringement of any of the constitutional provisions for the protection of marriage and the family.”

34. This passage anticipates a number of the arguments advanced on the hearing of the present appeal on behalf of the applicants.

35. In Pok Sun Shum and Others v. Ireland [1986] ILRM 593, the applicant was married, apparently to an Irish citizen, and had three

children who were born here. He contended that his deportation was precluded by these facts and would undermine his and the

family’s rights under Article 41 of the Constitution. Costello J. said:-

“I do not think that the rights given to the ‘family’ are absolute in the sense that that are not subject to some restrictions

by the State and, as Mrs Robinson SC (counsel for the State) has pointed out, restrictions are, in fact, permitted by law,

when husbands are imprisoned, and parents of families are imprisoned and undoubtedly, whilst protected by the

Constitution these are restrictions permitted for the common good on the exercise of its rights. It seems to me that the

Minister’s decisions and the Act, and orders made under it are permissible restrictions and I cannot hold that they are

unconstitutional.”

36. Moreover, in view of the importance placed by the applicants on the decision of this court in Fajujonu v. The Minister for Justice

[1990] 2 I.R. 151, it is instructive to note the summary of that case in the dissenting judgment of Barrington J. in Laurentiu v. The

Minister for Justice [1999] 4 IR 28 at p. 77 as follows:-

“The important point is that the Oireachtas has seen fit to regulate this sphere of life and to do so on the basis of

maintaining the distinction between citizens who have a right to reside in the State and aliens who have not. But, as

Fajujonu v. Minister for Justice [1990] 2 I.R. 151, illustrates, the Minister, having fairly considered all the matters involved

in the case can still deport an alien even though his decision may incidentally cause hardship to the alien’s children who

may be citizens of Ireland.”

37. The case of Fajujonu will, as its centrality in the present appeal requires, be dealt with separately later in this judgment. But

sufficient authority has been cited to demonstrate that our Superior Courts have on several occasions considered the constitutional

propriety of deporting a person who is a member of a family within the meaning of the Constitution and whose spouse and/or children

are Irish citizens. In none of the cases cited was the existence of a child who was an Irish citizen seen as precluding the deportation

of a non-citizen parent, or as constraining in the manner alleged the reasons which may justify deportation.

Statutory Provisions and International Agreements

38. The regime which existed under the Aliens Act, 1935 and the Aliens Order, 1946, effectively conferred on the State a general

discretion to deport, based on considerations of the common good. This area is now governed to a very large extent by statutory

provisions and international agreements. Prominent amongst these are the Refugee Act, 1996 and the Dublin Convention which is the

Fourth Schedule to the Act, the Immigration Act, 1999, and in particular s. 3 relating to deportation orders, the Geneva Convention

and the amending Protocol of 1967, and the Irish Nationality and Citizenship Act, 1956 as amended.

39. The power under which the deportation orders in these cases were made is s. 3 of the Immigration Act, 1999. Section 3(1) of this

Act provides:-

“Subject to the provisions of section 5 (prohibition of refoulement) of the Refugee Act, 1996 and the subsequent

provisions of this section, the Minister may by order (in this Act referred to as “a deportation order”) require any non-

national specified in the order to leave the State within such period as may be specified in the order and to remain

thereafter out of the State.”

40. Subsection (2) of the section provides that a deportation order may be made in respect of a number of categories of person. One

of these, mentioned at s. 3(2)(e) is:-

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

section 22 of the Refugee Act 1996.”

41. This is what occurred in the cases of the present applicants. It thus appears that a transfer of an application under the Dublin

Convention is specifically envisaged by statute as a ground for deportation.

42. It may also be noted that, pursuant to s. 3(6)(b) and (c) the Minister in determining whether to make a deportation order is

obliged to consider the duration of residence in the State of the person to whom the order would apply, and that person’s family and

domestic circumstances.

43. Accordingly the liability of the applicants for deportation arises from the application to them of the provisions of the Refugee Act,

1996. The long title of this Act is:

AN ACT TO GIVE EFFECT TO THE CONVENTION RELATING TO THE STATUS OF REFUGEES DONE AT GENEVA ON THE 28TH

DAY OF JULY, 1951 THE PROTOCOL RELATING TO THE STATUS OF REFUGEES DONE AT NEW YORK ON THE 31ST DAY OF

JANUARY, 1967, AND THE CONVENTION DETERMINING THE STATE RESPONSIBLE FOR EXAMINING APPLICATIONS FOR

ASYLUM LODGED IN ONE OF THE MEMBER STATES OF THE EUROPEAN COMMUNITIES DONE AT DUBLIN ON THE 15TH DAY

OF JUNE, 1990 TO PROVIDE FOR THE APPOINTMENT OF A PERSON TO BE KNOWN AS THE REFUGEE APPLICATIONS

COMMISSIONER AND THE ESTABLISHMENT OFA BOARD TO BE KNOWN AS THE REFUGEE APPEAL BOARD AND TO PROVIDE

FOR MATTERS RELATED TO THE MATTERS AFORESAID [26th June, 1996]

44. The International Instruments mentioned are the basis of an applicant’s entitlement to have his claim to asylum considered in this

State.

45. By s. 22 of the Act “[T]he Minister may make such orders as appear to him or her to be necessary or expedient for the purpose of

giving effect to the Dublin Convention”. It is then provided that, without prejudice to the generality of the above provision an order

under the section may do a number of things including specifying:-

“The circumstances and procedure by reference to which an application for asylum-

(i) shall be examined in the State,

(ii) shall be transferred to a convention country for examination”.

46. It may also be noted that s. 22(2)(b) enables the Minister to provide for an appeal against a determination to transfer an

application to a convention country. This is not required by the convention itself and Ireland is, apparently, one of only two

convention countries to have provided for it. The relevance of this fact to the present cases is that a portion of the stay in Ireland of

the applicant and their families is accounted for by a period after they had lodged appeals.

The Dublin Convention and the European Context.

47. This convention was signed on the 15th June, 1990 by the Member States of the European Union. It is, however, an Inter-

Governmental Treaty and not an EU instrument. Article 2 of the Convention is the reaffirmation by the Member States of their

obligations under the Geneva Convention as amended, and a commitment to co-operate with the United Nations High Commissioner for

Refugees in that regard. The first portion of Article 3 is self-explanatory. It provides:-

“1. Member States undertake to examine the application of any alien who applies at the border or in their territory to any

one of them for asylum.

2. That application shall be examined by a Single Member State, which shall be determined in accordance with the criteria

defined in this Convention. The criteria set out in Articles 4 to 8 shall apply in the order in which they appear.

3. That application shall be examined by that State in accordance with its national laws and its international obligations.”

48. The Geneva Convention of 1951 on the status of refugees did not determine which State was responsible for examining an

application for asylum. This led to the phenomenon described as “refugees in orbit” whereby applicants for asylum were sent from one

State to another without any State acknowledging itself competent or obliged to examine the application for asylum. The Dublin

Convention was designed to end this position in the interests of applicants for refugee status and also to ensure that multiple or

simultaneous applications for asylum are not made.

49. The context and effect of the Dublin Convention was recently considered in the neighbouring jurisdiction. In R (Yogathas) v. The

Home Secretary [2002] 4 AER 800, The House of Lords was dealing with a case where two applicants for asylum in the U.K. had

previously applied for it in Germany. Before considering the issue in terms of U.K. domestic legislation, a number of the law lords

outlined or commented upon the international instruments which provided the background to that legislation. Lord Hope of Craighead

referred to the Geneva Convention and the European Convention on Human Rights in some detail and continued:-

“By the end of the 1980ies the Member States of the European Union were faced with a rising number of applications for

asylum. The burden of dealing with these applications, many of which turned out after examination to be unfounded, was

causing increasing concern to the national authorities. Among other problems was the fact that the large number of

applications which were unfounded was delaying the recognition of refugees who are in genuine need of protection. In the

United Kingdom applications for asylum, which had been in the low hundreds annually in the early 1970s were already in

the low thousands annually by the 1980s and were increasing year by year. The whole issue was also becoming

increasingly political sensitive and various ad hoc arrangements were entered into with a view to increasing co-operation

between the Governments of the Member States in immigration and asylum law..

50. The creation of an internal market in which people could move freely between Member States created a further problem. It led to

a concern that asylum seekers might seek to abuse the system by lodging applications for asylum in two or more Member States. The

Dublin Convention sought to address this problem by establishing a framework to ensure that a claim for asylum was heard only once

in the European Union. It established the principle that the State through which the applicant for asylum entered the European Union

is responsible for dealing with the application, even if it is lodged in another Member State. Under this system a State is responsible if

it is the first point of entry into the European Union of an asylum seeker who crossed the border into a member State from a non-

member State without complying with its entry requirements”.

51. The Treaty on European Union, signed at Maastricht in February, 1992 provided in Title VI that, for the purposes of achieving the

objectives of the Union, Member States were to regard various areas in the field of justice and home affairs as matters of common

interest. These included asylum policy.

52. Subsequently, in December 1992, the European Council approved a Resolution relating to “manifestly unfounded” applications for

asylum. The preamble to this stated that the Member States were determined, in keeping with their common humanitarian tradition, to

guarantee adequate protection to refugees in accordance with the Geneva Convention, and it reaffirmed their commitment to the

Dublin Convention. It also stated that the Ministers were aware that a rising number of applicants for asylum in the Member States

were not in genuine need of protection within the Member States within the terms of the Geneva Convention, and that they were

concerned that such manifestly unfounded applications were overloading asylum determination procedures, delaying the recognition of

refugees in genuine need of protection and jeopardising the integrity of the institution of asylum. (See Lord Hopes judgment,

paragraphs 28 and 29).

53. These considerations appear to me to have a bearing on the question of the protection of the integrity of the asylum and

immigration systems, which is one of the reasons cited for the Minister’s decision in this case. This relevance does not appear to be

limited to applications deemed manifestly unfounded.

54. In the present cases, the determination of the Member State responsible for examining or further examining the applicants

application for asylum was in accordance with Article 8 of the Convention which provides:-

“Where no Member State responsible for examining the application for asylum can be designated on the basis of the other

criteria listed in this Convention, the first Member State with which the application for asylum is lodged shall be

responsible for examining it.”

55. This, undeniably, is the United Kingdom and that State has accepted that this is so.

56. The respective applicants’ proceedings as originally issued contain certain challenges to the operation of the Dublin Convention

but these were not persisted in on the hearing of this appeal.

The European Convention on Human Rights

57. This Court has already held in Adam & Iordache v. Minister for Justice (Supreme Court unreported 5th April, 2001) that an

applicant is not at the present time entitled to rely on the provisions of this Convention, and the applicants here have not sought to

do so. However, the Convention jurisprudence is of interest in a number of respects. It sets out apparently generally accepted

principles of international law in regard to the rights of non-national relatives of locally born or legally resident persons. It also

discusses in an informative way the rights and prerogatives of States in relation to this group of people as they are regarded in a

significant declaration of rights to which Ireland has subscribed. It is convenient, for reasons that will appear below, to consider this

before proceeding to consider the Fajujonu case.

58. The position under the Convention in relation to asylum generally is illustrated in Vilvarajah v. U.K. [1992] 14 EHRR 248. There it is

said (para 102) that contracting States have the right, as a matter of well established international law and subject to their treaty

obligations including Article of the European Convention, to control the entry, residence and expulsion of aliens, and that the right to

political asylum is not contained in the Convention or its protocols. It is also stated (para 103) that the expulsion of an asylum seeker

by a contracting State may give rise to an issue under Article 3 where substantial grounds are shown for believing that the person

concerned faces a real risk of being subjected to torture or degrading treatment or punishment in the country to which he is returned.

59. The jurisprudence of the Convention relevant to the present issue is conveniently summarised in the decision of the English Court

of Appeal in Mahmood v. Secretary of State for the Home Department [2001] 1 W.L.R. 840, and certain material cited therein. At

para. 55 of the judgment Lord Phillips MR had this to say:-

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

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

1. A State has the right under international law to control the entry of non-nationals into its territory, subject

always to its Treaty obligations.

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

couple.

3. Removal or exclusion of one family member from a State where other members of the family are lawfully resident

will not necessarily infringe Article 8 provided that there are no insurmountable obstacles to the family living

together in the country of origin of the family member excluded, even where this involves a degree of hardship for

some or all members of the family.

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

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

member expelled.

5. Knowledge on the part of one spouse at the time of marriage that rights of residence of the other were

precarious militates against a finding that an order excluding the latter spouse violates Article 8.

6. Whether interference with family rights is justified in the interests of controlling immigration will depend on:

(i) the facts of the particular case and

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

60. It will be noted that this approach of balancing family and state rights closely reflects the approach in the Irish cases cited

above. It is also consistent with the more general principles of constitutional construction applied in this country. These are best

expressed in the passage from the dissenting judgment of Henchy J. in The People (D.P.P.) v O’Shea [1982] IR 384, which concerned

whether Article 34.4.3 of the Constitution conferred on the prosecution in a criminal case in the Central Criminal Court a right of

appeal against a directed verdict of not guilty. The learned judge said:-

“I agree that if the relevant sub-section of the Constitution is looked at in isolation and is given a literal reading, it would

lend itself to that interpretation. But I do not agree that such an approach is a correct method of constitutional

interpretation. Any single constitutional right or power is but a component in an ensemble of interconnected and

interacting provisions which must be brought into play as part of a larger composition, and which must be given such an

integrated interpretation as will fit it harmoniously into the general constitutional order and modulation. It may be said of a

constitution, more than of any other legal instrument, that “the letter killeth, but the spirit giveth life”. No single

constitutional provision (particularly one designed to safeguard personal liberty or social order) may be isolated and

construed with undeviating literalness.”

61. This passage has been subsequently approved in a number of judgments and in my view elegantly expresses the basis of a

harmonious approach to constitutional interpretation.

62. Amongst the cases under the European Convention referred to in Mahmood is Poku v. United Kingdom [1996] 22 EHRR CD 94. This

case related to a decision of the United Kingdom government to deport Ama Poku, a Ghanaian who had overstayed her leave to

remain. The application was also made by six members of her extended family all of whom has a right to reside in the UK or were UK

citizens. These included her second husband, her three children and a further child of her second husband. The Commission wrote as

follows:

“The applicants emphasise that they are all British citizens or have a permanent right to remain in the United Kingdom,

save Ama Poku. Previous cases relied on by the Government involved the situation where neither parent had the right to

remain and were being deported. Further, it is not reasonable to expect the applicants to continue their family life in

Ghana since the older children are well settled into the educational system; Michael will lose regular contact with his

father; Samuel Adjei will lose his legal residence rights in the United Kingdom and also lose contact with Sarah, his

daughter by a previous marriage. The Commission recalls according to its established case law that, while Article 8 of the

Convention does not in itself guarantee a right to enter or remain in a particular country, issues may arise where a person

is excluded or removed from a country where his close family reside or have the right to reside.

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

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

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

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

Commission considers that this applies to situations where members of a family, other than spouses, are non-nationals.

Whether the removal or exclusion of a family member from a Contracting State is incompatible with the requirements of

Article 8 will depend on a number of factors: the extent to which family life is effectively ruptured, whether there are

insurmountable obstacles in the way of the family living in the country of origin of one or more of them, whether there are

factors of immigration control (e.g. history or breaches of immigration law) or considerations of public order (e.g. serious

or persistent offences) weighing in favour of exclusion

The Commission finds that there are no elements concerning respect for family or private life which in this case outweigh

the valid considerations relating to the proper enforcement of immigration controls. It concludes that the removal does

not disclose a lack of respect for the applicants’ right to family or private life as guaranteed by Article 8(1) of the

Convention.”

63. In a number of other cases, including Moustaquim v. Belgium [1991] 13 E.H.R.R. 802 and Beldjoudi v. France [1992] 14 E.H.R.R.

801, the length of residence in the relevant country of the person sought to be deported (twenty years and over thirty years

respectively) was considered a relevant factor in considering whether there had been a breach of Article 8.

Considerations of policy and the common good

64. In addition to the policy considerations to be derived from the statutes and other instruments cited, Mr John Lohan of the

Department of Justice swore an affidavit in these proceedings and referred to certain factual matters. He says there has been a

dramatic increase in the number of persons seeking asylum in the State since 1995, and also a significant increase in the number of

applications for residency on the basis of parentage of an Irish born child. The number of applications for asylum increased from 424 in

1995 to 10,924 in 2000. (The current figure is 11,503). Moreover, (though not stated on affidavit) the main reasons for withdrawals

of asylum applications are that the applicant has become the parent or sibling of an Irish born child, has married an Irish or EU

national, or voluntary repatriation. Up to November 2001 the Department of Justice received 5,247 applications for permission to

remain in the country on the basis of parentage of an Irish citizen, from current or former asylum applicants (written response of the

Minister for Justice to question 343, 11th December 2001).

65. From these figures it would appear that leave to remain in Ireland has in fact been granted over a period of years to a significant

number of relatives of Irish born children. It is hard to see why else they would withdraw their applications for asylum. Whether this is

so or not, and whether if it is so it acted as a “pull factor” to Ireland, and whether, if it did, that fact has any bearing on future

applications for leave to remain by persons now long established in Ireland, are matters which the Minister, in his discretion, may wish

to address in future applications.

66. It will be understood that this Court can have no concern with the formulation of the State or Government policy in relation to the

facts mentioned above and can have no view on whether the developments they represent are desirable or otherwise. Their

significance is confined, in my opinion, to two matters only. Firstly, they illustrate that the phenomenon of immigration to Ireland by

asylum seekers is a significant one, capable of eliciting some reaction in terms of official policy. What that reaction or policy may be is

not the concern of the Court so long only as it is rational and lawful. Secondly, the pace of increase in applications for asylum (still

more striking if one considers that there were only 39 applications in the year 1992) illustrates that the requirements of the common

good, such as the appropriate authorities may consider them to be, may not be static and may have to have regard to a rapidly

changing factual position.

67. In putting before the Court the figures and statements mentioned above in the affidavit of Mr. Lohan, it seems to me that the

Minister is relying on them. In considering a reason for deportation such as one of those given here, relating to the integrity of the

asylum and immigration systems, one must consider these systems in context, and not as words on a statutory page divorced from all

reality. But our concern with that reality, as opposed to that of the Minister, is strictly limited in the manner described above.

68. In the judgment which he will deliver in this case, Fennelly J. has referred to other sources of information from which a more

detailed breakdown of the numbers of persons receiving permission to remain in the State on the basis of parentage of an anchor child

is available. The pattern is indeed a dramatic one. No figures are available before 1996, but having regard to the very low number of

applications for asylum in that period, one may assume that the numbers would be very small indeed, possibly nil in some years. The

figure for 1999 (1428) is more than ten times the figure for the highest previous year, and more than thirteen times the figure for

1997. No applications were processed in 1998, because of a review of the system. Thereafter, however, the pattern of rising numbers

has continued, the 2002 figure (2879) being more than twice that for 1999. When these figures are correlated with the overall

numbers of applications for asylum, and with the rate of withdrawals of such applications, the significance of the right alleged to

attach to parentage of an anchor child in the context of the asylum system generally becomes clear. Moreover, it seems that from

2001, records are kept of applications, as well as grants of permission, to remain in the State on anchor child grounds. In that year,

according to the figures obtained by Fennelly J., there were 6,570 anchor child applications, of which 5,924 were from current or

former asylum applicants. As Fennelly J. says, it is not possible from these figures to extrapolate a precise figure for the success rate,

historically, of anchor child applications because (for instance), one cannot know how many of the 2001 applications were processed

in that year. It appears however that the success rate of such applications far exceeds that for asylum applications (about 9%). It

would also appear, though one cannot be certain, that a considerable number of anchor child applicants are unsuccessful.

69. Fennelly J. quite correctly emphasises that these figures were obtained by him after the hearing and formed no part of the

appellants’ case. Nonetheless, he regards the facts summarised above as important and points out that the parents of the anchor

children in the present cases are not being permitted to remain in the State although other parents of anchor children have been

given such permission. He also points out that neither side informed the Court that a large number of applications by the parents of

anchor children have been granted, or the basis on which this was done.

70. I have to say that my reaction to the figures obtained by the diligence of Fennelly J. is a very different one. To my mind, they

demonstrate even more clearly than those cited in Mr. Lohan’s affidavit, the very significant rise in applications for asylum and the

very significantly increased role of anchor child applications as a factor preventing what were originally applications for asylum being

dealt with as such. They illustrate very clearly why an applicant for asylum might prefer to advance his case to remain in Ireland on

the anchor child ground. The figures demonstrate clearly that anchor child applications are capable of being regarded as a factor

affecting the integrity of the asylum system. I discuss below whether it is legitimate for the Minister, in considering an individual

application, to consider overall policy in relation to asylum, and whether that policy requires to be changed in light of changing

circumstances. If it is legitimate to consider these factors, it seems to me that their existence is very strikingly established (at least

having regard to the very limited role of the Court in relation to policy matters) by the figures quoted. I am, accordingly, unsurprised

that no point was made on behalf of the appellants based on this material. I must emphasise that what I have said about these

figures is obiter and in no way essential to the outcome of this case. I do not consider it possible to infer from the fact that the State

has granted leave to remain in the past to parents of anchor children that it would be impermissible to deny it to other such parents

either then, now or in the future. The applicants themselves concede that individual factors have a role to play in these decisions.

Quite apart from that, general policy in relation to these applications need not be frozen, once and for all, in a form that may have

seemed proper and desirable at some point in the past. To do this in an area where the numbers involved are increasing at the rate

evidenced by the statistic cited would be to convert precedent into a straitjacket. The relevant authorities are entitled to consider

whether an approach considered possible and desirable when applications were numbered in the tens or hundreds remains appropriate

in present conditions. In T.D. v. The Minister for Education [2001] 4 IR 259 this Court held that the Executive was entitled to freedom

to alter policy as well as to formulate it. This seems to me a proposition of fundamental importance in practice.

Asylum and immigration: a digression.

71. In his judgment in this case, Fennelly J. has referred to the phenomenon of asylum seeking in the context of contemporary

immigration into Ireland and of Irish emigration in earlier times. I agree with all he says on the last two topics. Endemic emigration,

first in a haemorrhage of population and then as a steady debilitating drain of people and energy, has scarred Ireland for over one

hundred and fifty years up to very recent times. In our economic statistics, “emigrants remittances” formerly held a prominent place.

Irish emigrants found a new home in many countries, including all the great English speaking democracies and made conspicuous

contributions to the lives and economies of those lands. It would be an act of historical blindness and ingratitude to forget this when,

for the first time in modern history, we ourselves are attracting net immigration.

72. It must however be recalled that asylum seekers are a small minority of potential immigrants to Ireland. The great bulk of such

immigrants are people who come here in possession of work permits, and their families. Over 40,000 such permits were issued or

renewed last year, to people from over 100 countries from Albania to Zimbabwe. They work in thousands of Irish enterprises and

manage some of them. They make a much needed contribution to Irish life by their skills and industry, just as Irish emigrants in the

past made a valued contribution in their new homelands. This orderly process of immigration seems likely to continue, bringing further

welcome and productive newcomers to Ireland. This case is not concerned with that large group of people which, however,

constitutes the great bulk of immigrants to Ireland.

Fajujonu v. The Minister for Justice

73. This case is central to the arguments of both sides of the present appeal. Both sides accept that it was correctly decided, and

each side claims that it assists their case.

74. It must be said immediately that it is not easy to distil a single ratio from the judgments in Fajujonu. In a case where the result is

unanimously agreed but there is more than one judgment it is not, of course, necessary or inevitable that each judgment should reach

the agreed conclusion in the same fashion. In this case, however, there is particular difficulty in isolating the authoritative content.

There has been acute disagreement on this question in the oral and written arguments in the present case.

75. The essential facts of the case are that Mr. and Mrs. Fajujonu were Nigerian and Moroccan citizens respectively. They married in

London in 1981 and almost immediately moved to Ireland. A child was born to them here in September, 1983. In December of that

year Dublin Corporation allocated them a three bed roomed house. They subsequently had two further children, who are also Irish

citizens. Mr. Fajujonu came to the notice of the Minister when he applied for a work permit for specific employment. The Minister for

Labour refused to grant him a permit because he was an unauthorised alien and the Department of Justice asked him to make

arrangements to leave the country. One reason given for this was that Mr. Fajujonu was unable to support his family without

assistance from the State. While matters stood thus, without any formal deportation order being made, the plaintiffs issued

proceedings seeking orders restraining their deportation, and certain declarations essentially of their own entitlement to remain in the

State and as of the un-constitutionality of certain provisions of the Aliens Act, 1935.

76. They were unsuccessful in the High Court where their action was dismissed in a judgment of Barrington J. Their appeal to the

Supreme Court was dismissed; however it was held that the Minister should consider the case afresh. This was done for reasons and

in terms which were the subject of acute dispute on the hearing of this appeal.

77. Barrington J. cited or referred to passages from Osheku and Pok Sun Shun which have been cited earlier in this judgment. In the

latter case, he said, it was “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.” He fully acknowledged the constitutional

provisions relating to the family in Articles 41 and 42 of the Constitution. He said:-

“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 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.”

78. Barrington J. continued:-

“the Constitution does not contemplate the family as existing in isolation but regards it as living in a larger community or

society in which the State has a role to play as the guardian of the common good. Moreover Article 40 of the Constitution

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

notwithstanding the fact that this may have tragic repercussions for innocent members of his family who may be deprived

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

which the Constitution itself contemplates. Whatever the “inalienable and imprescriptible” rights of the family may be,

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

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

between this and other countries are peculiarly matters within the competence of the Oireachtas and the Government

and they are matters into which these courts should be slow to enter.

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

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

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

in their society confer upon themselves a right to remain in Ireland such as could be invoked to override the legislation

passed by the Irish Parliament to achieve its concept of what the common good of Irish citizens generally requires.”

79. Counsel for the applicant/appellants disagreed strongly with this passage and said that it had in effect been overruled by the

judgments of the Supreme Court in the same case. He conceded that the latter judgments did not entirely preclude the deportation of

the family of an Irish born child in all circumstances but he argued strongly that they envisaged that something extreme and

overwhelming relating to the family members personally would be required before they could lawfully be deported.

80. The Supreme Court which heard the appeal in Fajujonu consisted of five judges. Judgments were delivered by Finlay C.J. and

Walsh J. Griffin J. said “I agree with the judgments of the Chief Justice and of Walsh J.”. Hederman J. and McCarthy J. each said “I

agree”. Finlay C.J. said:-

“I have 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 interest of

those infant children.

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

Justice 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 of a case such as this is vested in the Minister for

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

or to prevent them from continuing to reside in the State on the other hand, is a discretion which can only be carried out

after and in the light of a full recognition of the fundamental nature of 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, and against the apparent will of the entire family, outside the State has to be a grave and substantial

reason associated with the common good.”

81. The learned former Chief Justice then made certain findings specific to the Fajujonu family which required a fresh consideration of

whether to deport “having due regard to the important constitutional rights which are involved as far as the three children are

concerned” and went on to say:-

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

may be appropriate to the facts and factors now affecting the whole situation in a fair and proper manner, the Minister is

satisfied that for good and sufficient reason the common good requires that the residence of the parents within the State

should be terminated, even though that has the necessary consequence that in order to remain as a family unit the three

children must also leave the State, then that is an order he is entitled to make pursuant to the Act of 1935.”

82. Walsh J. referred to the facts of the case and held “[T]here is no doubt that the family has made its home and residence in

Ireland”. He discussed the cases of Pok Sun Shum and Osheku: He then returned to the facts of the case and held:

“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

protections of Irish law under the Constitution or alternatively effectively abandon them within this State, which would 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 makes them unsuitable custodians to

their children, to move to expel the 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 of protection of the laws and Constitution of the State. In my view, therefore, the Act is not

inconsistent with the Constitution. But it would be ultra vires the Act to exercise the powers which had been sought to

be exercised by the Minister to disrupt this family for no 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 has applied his

mind to any of these considerations, and the matter will have to be reconsidered by the Minister, bearing in mind the

constitutional rights involved. In my view, he would have to be satisfied, for stated reasons, that the interest of the

common good of the people of Ireland and 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.” (Emphasis added)

83. The absolute centrality of the judgments in Fajujonu has rendered necessary this lengthy citation without which the exposition

which follows would be difficult to understand.

84. It is clear that, as was observed in Byrne and Binchy Annual Review of Irish Law 1989, there is a difference of emphasis between

the judgments of Finlay C.J. and Walsh J. Counsel for the Minister, however, contends that each of them is firmly based on the

“factual matrix within which the family and the Irish born child in particular found itself”. This, they say, is common to both judgments

though within that factual matrix Finlay C.J. emphasised the length of time for which the family had been in the State and Walsh J.

the reliance, in refusing permission to stay within the State, on the poverty of the family, notwithstanding that this arose from the

denial of a work permit. Walsh J. also, however, held that the family had made its home and residence in Ireland.

85. Counsel for the appellants, on the other hand, contended that each of these factual aspects was irrelevant to the true ratio of

the decisions. They contended that, in so far as the family’s eight years residence in the State and their poverty arising from the

refusal of a work permit, (which poverty was then relied on as a ground to compel them to leave the State) are mentioned in the

judgments, they are mentioned merely as part of the background facts. These facts are not, counsel contended, at all essential or

even important to the result of the case. The result is dictated solely and sufficiently by the existence of the Irish born children, any

one of whom is sufficient to anchor the entire family to the State. It followed from that, the appellants contended, that while the

Minister was not absolutely precluded in all circumstances from deporting family members of an Irish born child he could only do so for

overwhelming reasons, which must be related to the family members personally such as a very serious criminal record.

86. Counsel for the respective parties emphasised the different forms of words used in the judgment to describe the circumstances in

which deportation could occur. The phrases particularly emphasised were Finlay C.J.’s statement that the family members could be

deported only after “due and proper consideration” with “full recognition of the fundamental nature of the constitutional rights of the

family” and leading to the conclusion that deportation would be justified by “a grave and substantial reason associated with the

common good”. The Minister would have to be satisfied “that for good and sufficient reason the common good requires” exclusion from

the State. Much emphasis was also placed on the dictum of Walsh J. that the interests of the common good would have to be “so

predominant and overwhelming in the circumstances of the case, that an action which can have the effect of breaking up the family

is not so disproportionate to the aims sought to be achieved as to be unsustainable.” These phrases, of course, relate to the nature

of the Minister’s consideration, and of the reasons he requires to deport, and not to the criteria for judicial review.

87. I do not accept that the particular facts of the Fajujonu case, over and above the existence of children who are Irish citizens,

are irrelevant to the ratio. In particular, I believe it would ignore the plain words of the judgment of Walsh J. to conclude that he

regarded as irrelevant or inessential the fact that inability due to poverty to support the children was a ground for refusing permission

to stay in the State, although that poverty was state induced. The learned judge himself defined what he saw as the essential issue

as follows:-

“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.”

88. He also stated:-

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

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

itself”.

89. Contrary to the Appellants’ submission, it seems to me that this aspect of the case – the refusal of a work permit followed by

reliance on the family’s poverty – was for Walsh J. a central feature of the case. No other conclusion is possible, I believe, from a

perusal of the lengthy extract from his judgment set out above.

90. I do not accept, either, that the reference in the judgment of Finlay C.J. to the fact, also acknowledged in the other judgment,

that the family had been in the State for an appreciable time (eight years) during which the father “has become a member of a family

unit within the State containing children who are citizens” is irrelevant to the ratio. I do not believe that the references in both

judgments to the fact that over that period of time the family had expanded so that the majority of its members were Irish citizens

was mere crude head counting. On the contrary, I believe that the references to these two facts is an indication of the composite

position that the family had been in Ireland for eight years during which in the natural course of events three children who are Irish

citizens had been born and that the family had made its home and residence here.

91. These facts are, in my view, self-evidently relevant to the decision which the Minister must make. The facts of the particular

case, including long residence, have been held to be relevant in cases under Article 8 of the European Convention, as is demonstrated

in a preceding section of this judgment. Section 3(6)(b) and (c) of the Immigration Act, 1999 now specifically requires the Minister to

consider the duration of residence in the State and the family and domestic circumstances of a proposed deportee before he can

make an order. Facts of the same sort were relevant, I believe, to such decisions even before either of the sources quoted came into

being.

92. I believe that the factual matters referred to are central to the ratio of the Fajujonu case and, accordingly, that the case does

not proceed simply on the basis of the existence of an Irish born child. The present cases are clearly distinguishable on the facts.

93. The other aspect of the Fajujonu case said to govern the present one is that relating to the nature of the reasons which might, in

certain circumstances, justify deportation. The applicants’ contention in this regard has been mentioned several times. The nub of it

is that what were referred to in the course of argument as “routine immigration reasons”, or reasons of general policy, cannot provide

a sufficient reason to deport. The reason must be exceptional and case-specific. Counsel for the applicants said that “what those

exceptional circumstances might be was not spelt out in Fajujonu, but clearly a general desire to maintain the integrity of the

immigration system would not constitute such a reason.”

94. In my view, no argument justifying this contention has been advanced. It seems wholly artificial to contend that “a grave and

substantive reason associated with the common good”, in the words of Finlay C.J., is to be read as excluding general considerations

of that common good including the statistical pattern of immigration and asylum seeking, the demands thereby created on the State’s

resources, the State’s international obligations and the need to ensure that one applicant for permission to reside in the State does

not gain an unfair advantage over others. Some statistical indication of the extent of the phenomenon of asylum-seeking was given in

the affidavit of Mr. Lohan. I agree with the judgment of the learned Chief Justice in rejecting the submission that neither the High

Court nor this Court is entitled to have regard to the factual context in which recent legislation was enacted and administrative

decisions taken in the implementation of that legislation. It would be unreal not to have due regard to the manifest truth that factual

conditions in Ireland, in terms of immigration and otherwise, are very different to those that prevailed in 1989, 1992 or even in more

recent years. Apart from the statistical information quoted above, the legal landscape has been transformed by the passage of the

legislation cited earlier in this judgment and the giving of effect to the Dublin Convention. Just as the length of time for which the

applicants have been in the State is not merely a relevant consideration but one which the Minister is legally obliged to consider, so it

is relevant in deciding whether to apply the Dublin Convention. The same applies to the applicants’ family and domestic circumstances

generally, including the circumstances which render them liable to be sent to Britain for the consideration of their applications for

asylum. Again, since the State has undertaken international obligations in relation to applications for refugee status, the bulk of them

highly favourable to applicants, it is manifestly in the interests of the common good that these obligations receive due consideration

in each individual case. So also must what the European Human Rights Commission described as “valid considerations relating to

proper enforcement of immigration controls” be duly weighed.

95. I therefore conclude that there is nothing in the judgments in Fajujonu to limit the Minister’s discretion by excluding from his

consideration anything which can reasonably be regarded as bearing on the common good. This phrase must be construed realistically

in light of contemporary and changing conditions.

96. The decision in Fajujonu to require a fresh consideration of the applicants’ case was based on the finding that the Minister did not

appear to have considered the constitutional rights of the members of the family who were Irish citizens in deciding to request the

father to leave the country. These rights are undoubtedly weighty ones, but the decision goes no further than that. Finlay C.J.

specifically held that if the Minister were satisfied that if “for good and sufficient reason” the parents should be deported then “even

though that has the necessary consequence that in order to remain as a family unit the three children must also leave the State,

that is an order he is entitled to make pursuant to the Act of 1935.”

97. I would only add that the Minister, in my view, if duly satisfied as to the requirements of the common good, is also entitled to

make a deportation order under the Act of 1999.

98. I agree with the judgment of the learned Chief Justice, for the reasons which he has given, that the judgments in Fajujonu cannot

be read as questioning, much less overruling, the decisions of the High Court in Osheku and Pok Sun Shun. I would go somewhat

further. I do not regard the observation of Walsh J. on the latter case as indicating a basis for distinguishing it from the

circumstances of the present one, and I do not think that Walsh J. necessarily intended to distinguish it in Fajujonu. The judgment of

Costello J. makes it clear that the instance of imprisonment as a lawful interference with family rights was an illustration offered by

counsel to counteract the view that the family’s rights under Article 41 are absolute. The substance of Costello J’s decision was that

the making of deportation orders under statutory power can be permissible restrictions on family rights, so that he could not declare

the relevant statute unconstitutional. There is nothing to indicate that Walsh J. intended to dissent from this view, and he indicated

no basis for so doing.

99. Walsh J. specifically refrained from making any observations on Osheku on the basis that the trial judge in that case, Gannon J.,

had felt that it was premature to grant declarations about a decision to deport which had not yet been taken. At the end of his

judgment, however, Gannon J. set out seven numbered propositions which he described as “my determinations in the following

affirmative terms”. The third of these was:-

“Mr. Osheku is not entitled to remain nor reside in nor leave nor re-enter the State otherwise than in conformity with the

Aliens Act, 1935, and the orders thereunder.”

100. The fifth proposition was:-

“An order by the Minister for Justice deporting Mr. Osheku if made in the due execution of the discretion vested in him by

the Aliens Act, 1935 and the statutory orders there under, would not infringe the constitutional rights of any of the

plaintiffs.”

101. There is nothing whatever in the judgment of Walsh J. to indicate disagreement with, nor an intention to overrule, this

determination.

THE FAMILY IN AND AFTER FAJUJONU.

102. A child has a personal right to the society and nurture of his parents. The latter have no personal right to reside in this State.

The ordinary consequence of these facts is that the parents will rear and nurture the child elsewhere. Does the fact that a child,

alone of his family, is an Irish citizen alter that position? The answer depends on whether the child’s right to the Society and nurture

of his family is a right to enjoy these things in Ireland. The applicants submission seems to me to assume, rather than to establish,

that it is. Decisions as to nurture and rearing are normally matters for the parents, to be taken within the scope of their abilities,

resources and entitlements. The State’s right to restrict the exercise of family rights within the State by the deportation of a non-

national parent of an Irish born child has already been affirmed in Osheku and Pok Sun Shun: these cases have not been overruled.

Accordingly it seems to me that the existence of an Irish born child does not fundamentally transform the rights of the parents,

though it requires the specific consideration of the Minister who must reasonably be satisfied of the existence of a grave and

substantial reason favouring deportation. Whether this position is altered by the attribution to the child of an intention to remain in

Ireland is the next point arising from the appellants submissions.

103. The statement of Finlay C.J. in Fajujonu that the parents “are entitled to assert a choice of residence on behalf of their infant

children, in the interests of those infant children” requires close analysis for its proper construction. This case has been expressly

pleaded on the basis that it is the Irish born child himself who has, in his first few days or weeks of life, formed a wish and intention

to reside in Ireland. This is a contrived and wholly unrealistic statement.

104. I do not consider that a parent in taking a decision in relation to the welfare, education or residence of a child can realistically

be described as exercising the child’s choice for it. On the contrary, such parent is making his or her own decision for or on behalf of

the child. This, however, is a parental decision, made in the ordinary course of the care and custody of a child and not a delegated

exercise of some notional authority of the child’s. The myriad decisions, ranging from crucial to banal, which parents habitually take in

relation to children are not usually so analysed as to their legal character and would not be here unless there was some point to be

gained. In the case of an infant of about one year, it is wholly unrealistic to regard a decision as to place of residence as being

anything but the parents’ decision. As such, it is constrained by the parents’ capacities: they are not at large in the decisions they

can take but constrained by their material circumstances, their own needs and entitlements and the laws which apply to them. I

believe that what the parents have done in this case was aptly described by Barrington J. in Fajujonu: they have posited on the child

a wish to remain in Ireland. But this wish is wholly notional: the only persons at present capable of wishing or electing anything in

relation to residence are the parents: the decision is theirs, subject only to their capacity and the laws applying to them.

105. In North Western Health Board v. H.W. [2001] 3 IR 622, which is relied on by the applicants in relation to the rights of the

family, the issue centred on whether parents could be compelled to present their child for a particular medical test. This was resisted

by the parents, but not on the basis of any view of the test imputed to the child or asserted as the child’s by the parents. It was

resisted on the basis that the parents, according to our constitutional order, were the appropriate decision makers on a matter plainly

within the authority of the family. The fundamental issue in the case concerned who would take the decision to accept or reject the

test: a State body or the parents. It did not occur to either side to suggest that the decision was the child’s, and merely articulated

by someone else as his agent. It is unrealistic to consider any decision made on the child’s behalf as his own. It would not, I think,

occur to anyone so to describe a parental decision except under the artificial constraints of a need to support a particular argument.

What is unusual about the present case is that the child has a right, which is not shared by the parents, which he is at present

incapable of exercising. Accordingly, he will be bound by whatever decision the parents may lawfully make in his regard. A decision

about a child’s medical treatment is, prima facie, within the authority of his family. A decision about an alien parents desire to live in

the State is not.

106. In my view, the artificiality of the applicants’ contention emerges clearly from the proceedings which they have launched. In

each case, the statements required to ground the application for judicial review was amended to include pleadings specific to the Irish

born child. In the Lobe case, the amended statement filed the 14th of January, 2000 says at para. (viii):

“The sixth-named applicant was born on the 2nd of November 2001 in University Hospital Galway and is the child of the

first-named and second-named applicants. The sixth-named applicant wishes to and intends to reside in the State of

which he is a citizen and as such has a right to do so.” (Emphasis added)

107. In the case of the Osayande proceedings, the amended statement is undated in my papers but was clearly filed after the 4th of

October, 2001. The title in the proceedings themselves were amended to include the Irish born child, Osaze Joshua, as an applicant.

108. Para. (x) of the amended statement reads as follows:-

“The second-named applicant was born on the 4th of October 2001 in Mayo General Hospital and is the child of the first-

named applicant and Mrs. Flora Osayande, the first-named applicant’s wife. The second-named applicant wishes to and

intends to reside in the State of which he is a citizen” (Emphasis added)

109. I repeat that it is unreal to think or speak in terms of an infant one year old having wishes or intentions. He is both practically

and legally incapable of forming an intention and if a wish can rationally be posited on him, it can only be a wish to be with his

parents.

110. The form of words used seems to me to reflect consciousness on the part of the pleader of a great difficulty in the applicant’s

case, and his attempt to address it. The parents undoubtedly have wishes and views as to where the family should reside. But they

lack the power and capacity themselves to decree that they or their children (other, perhaps, than the Irish born child) will reside in

this State. But the Irish born child, as a citizen, is said to be in a different position. Accordingly the parents’ wish, which they lack the

capacity to translate into an effective decision, is expressed instead as the wish and intention of the new born child. And if that wish

and intention can be made effective, it is proposed that that fact will itself “anchor” the rest of the family to this jurisdiction.

111. There is no doubt that the Irish born child, in each case, when he reaches his majority, will be capable of deciding to reside in

this country if he so wishes. But his status as an Irish citizen does not enable him now to express a wish, or form an intention, which

is plainly beyond the capacity of a child in his first year of life. The form of words quoted above is designed to avoid or obscure this

contradiction. The phrase “ on behalf of ” which is also used in this connection, is likewise unhelpful, extending as it does to two

separate meanings which require to be distinguished: “as regards or on the side of” but also “as agent for.”. It is in the former sense

only that the phrase can properly be used in the present context. There can be no question of a delegation of a capacity or authority

which the child is not himself in a position to exercise.

112. This, indeed, seems to have been acknowledged by the applicants in the L case at least at one stage of their dealings with the

authorities. By their solicitor’s letter of January 2002 they observed that the Minister seemed to presume that the family would take

the Irish born child with them if they were deported, and also seemed to consider that they were under a duty to do this. They said

that this presumption was incorrect. The letter went on:-

“We are instructed that the first and second named applicants will decide whether (the Irish born child) should leave the

State with them if they are deported, or whether he should remain in the State, in accordance with what they consider

to be the best interests of the child. We now call upon you to set out precisely what measures you propose to take and

put in place for the care of (the Irish born child) in the State in the event that his parents are of the view that his best

interests and welfare are served by him continuing to reside in the State, albeit in the absence of his family”.

113. There is no question here of a contention that it may be the wish or intention of the Irish born child to remain in Ireland even in

the absence of his parents and siblings. Indeed, it would be unnatural to attribute such a wish and intention to a very small child. The

terms of the letter are inconsistent with any view on the part of the applicant parents other than the view that they will of their own

motion make a decision as to the residence of the child, even if they are not entitled to elect residence in Ireland for themselves or

their other children. If this reflects the legal and human reality of this second decision, it must equally reflect the reality in relation to

the first decision as well. In other words, the parents have themselves decided, in the exercise of their own powers, and not as agent

or surrogate for the child, where they wish him to live. His place of residence will be decided by his parents and (like every other

decision) this decision will be subject to the constraints of what they are practically and legally entitled and able to do. There simply

does not exist a notional, inviolable decision of the child to which every other consideration must yield.

114. I agree with the judgment of Geoghegan J. as to the reasons for the differing approaches of Barrington J. and of the Supreme

Court in Fajujonu and have nothing to add in that respect.

The present proceedings

115. All of the foregoing is essential background to a decision in the present proceedings. Since no aspect of the case originally made

other than that related to the Irish born child was argued in this Court, I confine my summary to that aspect.

116. The core relief sought in each case is the quashing of the decision to deport. Though the grounds on which this is sought were

more elaborately set out in the Lobe case than in the other, I do not regard the cases as raising different issues. Substantially, it is

claimed that the decision should be quashed on the basis that:

(a) There is simply no power to deport the family of an Irish citizen.

(b) Alternatively, there is such a power only in very restricted circumstances.

(c) The actual decisions took into account matters which are legally irrelevant i.e., the length of time the applicants had

been in the country, the Dublin Convention, and the need to preserve respect for the asylum and immigration systems.

(d) The reasons given by the Minister do not represent a proper consideration of the question of whether the applicant

should be deported and failed sufficiently to recognise their constitutional rights as members of the family of an Irish born

child, alternatively, the said child’s rights to their society in the State.

All other reliefs are dependant on this core relief being granted.

117. It will be clear from what is said in the preceding sections of this judgment that the first three claims must be rejected. Even if

one were to interpret Fajujonu in the way the applicants propose it would not be possible to say that it is never lawful to deport

members of the family of a locally born child. Furthermore, I have already rejected the view that the requirements of the common

good which the Minister is entitled to take into account are limited to matters relating to the private character of the persons sought

to be deported. In PBL cited above, an argument which was in some way the obverse of this was advanced. It was contended that,

in invoking the requirements of the common good as a basis for deportation the Minister was necessarily indicating that he held an

opinion derogatory of the applicants’ characters, and he had not communicated the basis for this opinion to them. In my judgment in

that case, I referred to Laurentiu and continued:

“It follows from this that the invocation of the [sic] ‘the common good’ in section 3(6) does not require or imply any

opinion derogatory of the individual whose case is being considered. It simply entitles the minister to have regard to the

State’s policy in relation to the control of aliens who are not, on the facts of their individual cases, entitled to asylum.”

118. In turn, it follows from the passage just cited that the requirements of the common good may have a bearing on an individual

case even though there is nothing known or relied on which reflects badly on the individual concerned. Specifically, the Minister is

entitled to have regard to the State’s general policy in relation to immigrants and specifically to asylum seekers; to the jurisprudence

on the same subject as it evolves; to the volume of persons seeking asylum and the social and economic demands which this

imposes; to changing patterns in this volume; to the matters he is required by statute to consider including the length of time a

particular person has been in the State and his or her family and domestic circumstances, to the constitutional rights of all persons

concerned including the Irish born child and the State itself to the requirement of a coherent and efficient immigration and asylum

system and to our international obligations.

119. The number of so called anchor children cases and any changing patterns in their incidents; their effect on the operation of the

asylum system (as illustrated for example by the draws of applications for asylum by people who have become the parents of an Irish

born child); the making of previous applications for asylum elsewhere, the results of such applications, and the subsequent arrival

here of families which shortly come to include an Irish born child all seem to me capable of having implications for the integrity, the

proper operation, of our domestic asylum system and our international obligations with regard to asylum.

120. If the contrary view were taken, a family whose asylum application had been conclusively determined to be appropriate to

another jurisdiction would, by reason of the fortuity of the birth here of a child, become entitled to override the ordinary procedures

relating to asylum and to indefinite residence here, even if their claim to asylum were unfounded. If the birth took place after the

asylum procedures had been completed, then the humanitarian reaction of this State in abstaining from the immediate deportation of

a heavily pregnant woman would have had the consequence of conferring on the whole family an indefinite right of residence.

121. This situation appears to me quite inconsistent with any fair and rational operation of an asylum system. A result dictated not by

a careful examination of each case according to statutory criteria, but by the happenstance of the relative progress of the asylum

procedures on the one hand and a pregnancy and its complications on the other, is irrational, chance-determined and therefore quite

unfair. It would be internationally anomalous and frankly risible in the eyes of informed observers.

122. All these considerations emphasise the social and legal need for a proper discretion in these cases to be exercised with due

regard to the individual circumstances of applicants (including applicant families) and the common good of the Irish community. This

includes the public interest in a fair rational and effective asylum and immigration system. This interest seems to me to constitute a

grave and substantial matter of high importance.

123. All these matters form an ensemble, to use the word of Mr. Justice Henchy in the passage quoted above. There is no single

consideration which is determinative of the matter. The Dublin Convention now forms an important part of our system and the system

of our European Union partners for dealing with the volume of asylum applications which are made to them. It is certainly true that,

notwithstanding the provision in cases such as the present for having the asylum applications examined in the country which they

were first made, it would also be possible for the State itself to examine them. But the fact that the State could do so does not mean

that it must do so. It is plainly a matter of executive discretion whether to exercise this power or not. In my view, there is nothing,

including the fact of the birth of the Irish born child, to deprive the Minister of the discretion he clearly has under the Convention.

124. Ireland, like other States, has undertaken considerable obligations in relation to refugees or people who claim to be such. These

responsibilities, undertaken in the name of the vindication of human rights, have now involved the State in providing for the hearing of

over 11,500 such applications each year. The incidents and logistics of this have been described at the start of this judgment, as has

the administrative structure involved. It is a very elaborate structure indeed. It must aspire to high standards of fairness,

transparency and consistency and in general it does so successfully. It must also aspire to treat all applicants as far as possible

equally. It is thus legitimate to enquire whether a person who comes to the State and remains here on foot of a claim which may be

unfounded should thereby gain an advantage over a person who pursues his claim, where possible, in the prescribed manner from

abroad.

125. All of the factors indicated above are proper to be considered by the Minister. The actual mode of consideration is manifest here

with total transparency in the form of the memorandum for the Minister’s consideration written in each case by Mr. Lohan (“The Lohan

Memorandum”). I agree with what is said about this document in a judgment of Mr. Justice Fennelly: it contains a fair summary of the

facts, the constitutional rights claimed by the child in each case, as a citizen and a member of the family and it “sets out in detail the

reasoning behind the Minister’s decision” This memorandum, in each case, was in my view, correctly described by Fennelly J. as “a

scrupulously careful and accurate document”, although, as he says, its legal correctness is contested. I also agree with Fennelly J’s

summary of the reasons for the Minister’s decision. Those common to each case were:

“1. The length of time the family has been in the State-

Lobe case: only nine months; Osayande case only seven months at this stage with less than four months of the time of

making the deportation order.

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

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

126. I also agree with Fennelly J. that the last of these reasons is the most important and the one most strongly relied on at the

hearing. I consider, however, that it is closely related to the previous reason, citing the Dublin Convention.

127. In my view, the need to preserve respect for the asylum and immigration system (including the Dublin Convention) is a generally

applicable open ended administrative reason capable of satisfying the test in Fajujonu. When this reason is given it must, of course,

be considered in the light of the facts of each individual case – a set of facts such as those in Fajujonu might lead to a different

conclusion than the facts of another case. Equally, the consideration of individual cases should as far as possible be consistent one

with the other. The detailed exercise required in each individual case is a function of the Executive, to be discharged with reference

to the finding of the relevant statutory bodies and with the advice of the Civil Service. The courts have no appellate role in this

process. Their role is solely to ensure that all decisions are taken by the proper bodies and in a proper manner. The element of

discretion in any such decision has been conferred, not on the judiciary, but on the Executive which is democratically accountable for

it.

128. The issue, accordingly, is as to whether the applicants have established in relation to the decisions to deport them respectively

what requires to be established, on the authorities, before an administrative decision can be quashed. These criteria are summarised

in the decision of Finlay C.J. in O’Keeffe v. An Bord Pleanala [1993] 1 I.R. 39 as follows:

“1. It is fundamentally at variance with reason and common sense.

2. It is indefensible for being in the teeth of plain reason and common sense.

3. Because the Court is satisfied that the decision-maker breached his obligation whereby he must not flagrantly reject or

disregard fundamental reason or common sense in making his decision.”

129. On the hearing of this appeal no argument was advanced to the effect that the Court should adopt new or special criteria in

relation to judicial review of deportation decisions. In the absence of submissions to that effect, I am not prepared to assume that a

deportation decision which itself follows two careful and independent considerations of the respective applicants case requires the

application of any less onerous criteria on judicial review.

130. It follows that the onus of demonstrating that the decision is in some way at variance with reason or common sense devolves on

the respective applicants. I have already held that the matters taken into consideration by the Minister were appropriate to take into

account. Accordingly, to meet the standards required for judicial review the applicants would have to demonstrate some irrationality

in their application on the facts of the present case. No attempt has been made to do so.

131. It is perfectly true, as Fennelly J. says, that the Minister has not provided the Court with much in the way of background

information or statistics regarding the impact of immigration generally or asylum seekers in particular on the life of the State, or any

cost/benefit analysis of the phenomenon of immigration in general. There was in fact no statistical information put before the Court

except that already referred to from the affidavit of Mr. Lohan. But in my view there is no necessity for the Minister to provide the

Court with the sort of information it might require if it were hearing an appeal against his decision, because it is emphatically not doing

so. The issue before us is limited to whether the applicant has met the established standards for judicial review. I have already held

that the statistical information which I have cited is, in accordance with the requirements of a judicial review application, relevant

only for a very limited purpose, that of establishing that there is an area of rational policy choice which the Executive must address,

and that the considerations which affect that choice are rapidly changing. If the Court were to consider whether the Minister’s

determination, apart from being lawful and rational, was conducted on the basis of acceptable policy decisions, we would be guilty of

a clear invasion of the executive sphere.

132. The Lohan Memorandum discloses the nature of the Minister’s consideration of whether or not to make deportation orders in

these cases. It is so full and careful a document that it is really only by establishing that some one or more of the factors it mentions

are irrelevant or legally improper to take into account that the decision could be quashed on Judicial Review. In my view all the

matters it mentions are proper to be considered and no relevant matter is omitted. There is no reason to believe that the

memorandum was not fully and fairly considered by the Minister.

133. I do not consider that the applicants have made any showing at all that the Minister’s decisions are irrational or unlawful and

would, accordingly, dismiss the appeals.