IESC 3 · Supreme Court

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

Geoghegan J.

Fennelly J.

109/02 & 108/02

BETWEEN

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

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

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

KEVIN LOBE (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND, JANA LOVEOVA)

Applicants/Appellants

and

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Respondent/Respondent

BETWEEN

ANDREW OSAYANDE AND OSAZE JOSHUA OSAYANDE (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND, FLORA

OSAYANDE.)

Applicants/Appellants

and

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Respondent/Respondent

JUDGMENT delivered on the 23rd day of January, 2003, by FENNELLY J.

Introduction

Article 2 of the Constitution declares that:

“the Irish nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and

heritage.”

In one of the most fundamental changes in the basic law of the State, the people, in passing the nineteenth amendment to the

Constitution, thus acknowledged the debt owed to past generations of emigrants. By the same act, the people decided to enshrine in

the Constitution the birthright of every person born in Ireland to be part of that Irish nation.

It is an accident of history that, contemporaneously with the peace process, which culminated in the British-Irish Agreement of Good

Friday 1998, Ireland was experiencing for the first time in its modern history the sort of influx of immigrants from many countries that

frequently accompanies increased prosperity. Ireland has had to commence to live with the ancient biblical admonition:

“Thou shalt not vex a stranger, nor oppress him, for ye were strangers in the land of Egypt.” (Exodus Chapter 22, verse 21.

King James Version.)

The present appeals arise from the effects of these two very different events. The issue is whether a child citizen born in Ireland to

parents, who have entered the State to seek asylum, can rely on family provisions of the Constitution to prevent the State from

deporting his parents, when the asylum application has failed.

The legal issue is whether the present cases can be distinguished from that which was decided by this Court in Fajujonu .v Minister

for Justice [1990] 2 I.R. 151. (“Fajujonu”) The appellants say that they cannot. The Minister says that they can. Both sides accept

that Fajujonu was correctly decided.

The Lobess

The Lobes are a family of Czech Roma origin. They arrived in the State on 31st March, 2001, with their three Czech-born children,

then aged 11, 9 and 3 respectively. Mrs Lobe was pregnant. Mrs Lobe completed the asylum questionnaire and stated that asylum

had previously been sought in the United Kingdom. The family applied for asylum in the State on 3rd April, 2001. The UK authorities

confirmed, on being consulted, that Mr Lobe had applied for asylum there on 30th March, 1999, on behalf of the entire family. This

asylum claim had been refused and subsequently appealed. Leave to appeal against the refusal was also refused, though Mr Lobe had

instituted proceedings under the (English) Human Rights Act, 1998. The UK authorities agreed to accept responsibility for the case of

the Lobes pursuant to Article 8 of the Dublin Convention. By letter dated 24th July, 2002, the Lobes received notice that the Refuge

Applications Commissioner had ruled that their application should have been made in the UK in accordance with Article 8 of the Dublin

Convention because the UK was the first Member State in which they had lodged an application for asylum.

The Lobes appealed this decision to the Refugee Appeals TribunaLobe A number of grounds were advanced relating to the validity of

the implementation of the Dublin Convention in the State and the correctness of its application in the particular case. The Lobes

argued that their asylum application should be handled in the State. As will later appear, these matters are no longer relevant. The

Lobes also relied on the state of health of Mr Lobe’s parents, who were residing in the State as well asand also on the fact that Mrs

Lobe. was heavily pregnant and dependant on Mr Lobe. The appeal was rejected on 30th August, 2001. The Lobes submitted further

similar medical evidence, and asked the Minister not to remove the Lobes, but orders were made for the deportation to the United

Kingdom of Mr and Mrs Lobe and their three children on 26th September, 2001. These were communicated on 2nd October, 2001. The

Lobes were asked to present themselves in order to make arrangements for their deportation

The Lobes issued proceedings and obtained an interim injunction to restrain deportation. Judicial review proceedings followed on 5th

October, 2001and led to a temporary undertaking not to deport before 23rd October, an undertaking which was extended to cover

the period during which pendency of the proceedings .would be pending.

Kevin Lobe was born on 2nd November, 2001 in the State.

The Osayandes

Mr & Mrs Osayande and their three-year-old daughter, Emmanuella, arrived in the State on 6th May 2001. They are Nigerian nationals.

Mr Osayande completed an asylum application on 15th May, 2001. He denied having applied for asylum in any other country. This was

untrue. Following consultation of the UK authorities, it was discovered that Mr Osayande had entered the UK in September, 1999 on a

false passport and that an asylum application had been made in that jurisdiction on 23rd September, 1999, and rejected on 17th

March, 2001. There was no appeal. The family, as already stated, travelled instead to Ireland.

The UK authorities agreed, as in the Lobe case, to accept responsibility for the case of the Osayandes pursuant to Article 8 of the

Dublin Convention. The Refugee Applications Commissioner, on 23rd July, 2001, rejected the asylum application for the same reasons

as in the Lobe case.

Mr Osayande appealed to the Refugee Appeals Tribunal on grounds similar to those in the Lobe case. Mrs Osayande was heavily

pregnant and bedridden. Mr Osayande’s appeal was rejected on 29th August, 2001.

Although there was correspondence with the Minister concerning Mrs Osayande’s condition, the Minister signed a deportation in

respect of Mr Osayande on 29th September, 2001, though not of Mrs Osayande or Emmanuella. The Refugee Appeals Tribunal had not

yet determined their cases. Mrs Osayande gave birth to a son, Osaze Joshua, on 4th October, 2001. At this point, the facts of the

Osayande case become similar, if not identical, to those of the Lobe case. Various arguments, such as prohibition of refoulement were

made, but the Minister made a deportation order. Initially judicial review proceedings were instituted against this order.

The Proceedings and the Lohan Memorandum

In each case, the grounds of judicial review were amended so as to base the claim essentially on the constitutional rights of the child

as an Irish citizen. The parents claimed to have made a decision on behalf of the child to choose Irish residence.

At a resumed hearing, the Minister invited further representations in the light of the new circumstance of the existence of an Irish-

born child. In each case, a further letter of representations was sent to the Minister on 7th December, 2001. Mr John Lohan, Principal

Officer of the Immigrant Division of the Department of Justice, Equality and Law Reform then prepared a report for the Minister. This is

dated the 19th December, 2001, and has been called the Lohan Memorandum. As a result of and in reliance on the latter document

the Minister confirmed the deportation orders, in each case by letter dated 20th December, 2001, enclosing a copy of the applicable

version of the Lohan Memorandum.

The legal process, in the two cases, has taken a similar route and the reasons for deportation are almost identical.

There are only two differences worthy of any note between the facts of the two cases. Firstly, the Osayandes, but not the Lobes,

falsely stated that they had not made an asylum application in any other state. Secondly, in the Lobe case, the Minister gave one

additional reason for his decision to implement the deportation orders, namely one relating to the adaptability of the family to life in

the Czech Republic.

The points of distinction between the Lobe and the Osayande cases are comparatively insignificant and the Lohan Memorandum is

central to the case. It is a scrupulously careful and accurate document, though its legal correctness is contested. The main thrust of

the recommendations of Mr Lohan is identical in the two cases. It will be necessary to consider it in some detail. In order to avoid

repetition, I will postpone summarising it until I come to the decisive part of this judgment.

It is the Minister’s decision to confirm the deportation orders, based on the Lohan memorandum, and notwithstanding the fact that an

infant citizen had been born in the interim, which now forms the basis of the proceedings for judicial review.

There was also some correspondence concerning the intentions of the parents as to the continued residence of the child in the State

and the Minister’s attitude on this issue. In the Lobe case, the family contested the Minister’s stated assumption that they would

remove the child from the State. The Minister replied on 4th March, 2002, that he was “indeed of the view that the [applicants had]

a duty to bring the [child] with them if and when they [were] deported.” He continued:

“The Minister believes he is correct in that view in the light of Article 41 of the Constitution, which allows the Minister to

assume that the interests of the [child] are best served by his remaining within the family unit.”

He also mentioned that, on the alternative hypothesis of the child remaining in the State, the provisions of the Child Care Act, 1991,

could be brought into play. The Minister conducted very similar correspondence with the representatives of the Osayande family.

The High Court

In each case, the applicants referred to the Irish-born child as “the anchor” which connects or keeps connected to the State the

families of non-nationals. They relied on the effect of Article 2 combined with Articles 41 and 42 of the Constitution as interpreted in

Fajujonu (bearing in mind the new version of Article 2). The Minister argued that the rights of the family under the Constitution are

not absolute but are subject to the exigencies of the common good. Counsel referred to the body of refugee legislation and to the

decision of this Court in P, L & B v The Minister for Justice, Equality and Law Reform (Unreported, Supreme Court, 30th July, 2001)

(“P, L & B”).

Smyth J. accepted that Fajujonu could be distinguished especially because of the difference between the significantly longer period

time the Fajujonu family had spent in the State compared with either of the families in the present cases. He recalled the recent

decision of this Court in P, L & B. andHe considered that the second and third reasons given by the Minister for deportation (reliance

on the Dublin Convention and the integrity of the asylum and immigration process) were not inconsistent with the constitutional rights

of each of the children. and, rReflecting the express language of the judgments in Fajujonu, he held that theyse reasons were “not

only grave and substantial, but also predominant and overwhelming.”

The applicants also advanced a number of grounds challenging the validity of the order implementing the Dublin Convention. Smyth J.

also rejected these arguments and there is no appeal in this respect.

Following the dismissal of the applications for judicial review, the applicants have appealed. The grounds of appeal are effectively a

repetition of the constitutional arguments advanced in the High Court. In summary, they state that the learned High Court judge was

wrong in law in holding:

that the length of time spent in the State by the family of the child or the adaptability of the child on deportation were relevant

considerations for the Minister to consider;

that the Minister had given adequate consideration to the rights of the child upon the deportation of his parents and, in

particular, that the integrity of the asylum and immigration system was a grave and substantial reason;

that the implementation of the Dublin Convention was a proper matter to be considered for the purpose of prevailing over the

constitutional rights in issue.

that the implementation of the Dublin Convention was a proper matter to be considered for the purpose of prevailing over the

constitutional rights in issue.

There is no cross-appeal or notice to vary.

Issues and arguments

Mr Gerard Hogan, counsel for the appellants asserts that the question at the heart of the appeals is whether it is competent for the

Minister to deport from the State the parents of Irish children of tender years, in the absence of special and overwhelming

circumstances.

In support of this proposition, he relies upon the constitutional provisions concerning citizenship and the family.

An infant citizen, he says, has an unqualified right to reside in the State, a right which flows from Article 2 of the Constitution. This

right is one of the fundamental, absolute and imprescriptible rights of a citizen. It is protected by Articles 9, 40.1 and 40.3. The

European Convention on the Protection of Human Rights and Fundamental Freedoms (“the European Convention”) also protects this

right. Under the recognised rules of public international law, states may not deport their citizens.

Since the infant citizen has the right, protected by the Constitution, to reside in the State and has an associated right to the care,

company, nurture and protection of his parents, the choice to reside in the State must naturally, if real effect is to be given to it, in

the case of a child of tender years, be exercised by his parents on his behalf. The State is obliged to respect this choice. Counsel for

the appellant relied especially for these propositions on the decision of this Court in Fajujonu and particularly on the language used by

Finlay C.J. and Walsh J as showing that the State may not deport the parents of Irish citizens of tender years except in exceptional

circumstances associated with the common good. Counsel was at pains, however, to emphasise that no claim is made that the

parents, independent of their children, have any rights. Only the rights of the children are at issue. I will consider Fajujonu in more

detail later. The parties, each of whom analysed the judgments exhaustively, differed significantly in their interpretation of the

reasoning.

With regard to the test propounded in Fajujonu, counsel for the appellant argued that routine immigration reasons, in particular that

the parent of an Irish-born child was an illegal immigrant with no right to reside in the State, would not, in themselves, satisfy the

standard of exceptionalof exceptional circumstances associated with the common good. Counsel argued that, in Fajujonu, the parents

were at all relevant times illegal immigrants. It is implicit in the judgments of Finlay C.J. and Walsh J. that this fact was insufficient to

justify the deportation of the parents in that case.

The Minister does not contest the proposition that Osaze Joshua Osayande and Kevin Lobe, because they were born in the State, are

entitled to the benefit of Irish citizenship. This was so even before adoption of the nineteenth amendment of the Constitution in 1998.

Under Article 9.2 of the Constitution, the acquisition and loss of citizenship is to be defined by law. The two children would have had

the same rights under the Irish Nationality and Citizenship Act, 1956. Mr Paul Gallagher, Senior Counsel for the respondent, says that

the issue to be decided is as to what extent that fact confers an automatic right of residence on their parents. Counsel says that the

rights of the Irish-born child must be considered in the light of the common good and the fundamental rights of the State itself. He

placed special reliance on the dictum of Gannon J. in Osheku v. Ireland [1986] I.R. 733:

“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.”

This Court approved that statement, counsel for the respondent points out, in several cases, notably in Laurentiu v. Minister for

Justice, Equality and Law Reform [1999] 4 I.R. 26 and P. L and B. . v. Minister for Justice, Equality and Law Reform (Unreported

Supreme Court 30th July 2001).

Counsel for the respondent laid especial emphasis on attached particular importance to the prerogative or sovereign right of the State

to control immigration into and out of the national territory. There have been very great changes in the legislative context since the

decision of this Court in Fajujonu. The Refugee Act, 1996, the Immigration Act, 1999, and the Illegal Immigrants (Trafficking) Act,

2000, constitute a body of legislation establishing a coherent scheme to give effect to the Geneva Convention relating to the Status

of Refugees, 1951. This confers valuable rights to avail of a statutory mechanism on persons seeking the right to reside in the State,

provided that they can show that they are entitled to be considered as refugees for the purposes of the Convention. The State is

entitled to expect that this legislative scheme will be respected. If the entire family of a failed asylum seeker is to acquire the right to

continue to reside in the State as a result of the mere “fortuity” of a child being born in the State during, or, as in this case after the

termination of the statutory procedures, this would set aside the whole carefully contrived system. It would result in the parents

deriving substantial rights to which they are not entitled. These could include the right to be considered, after five years residence in

the State, for Irish citizenship. The Minister, in deciding to give effect to the deportation orders, assumed that the decision as to the

residence choice of the child would be made in the latter’s best interests and that this would, in reality, mean that the child would go

with his parents. The case of North Western Health Board v HW and CW [2001] 3 I.R. 622 (NWHB) justified him in making this

assumption.

In these cases, the Minister claims that he was justified in giving, as a reason for refusing to permit the parents of the respective

children to reside in the State, the need to protect the integrity and asylum system. This is an aspect of the common good

recognised by the courts. In addition, he was entitled to rely on the terms of the Dublin Convention, an international agreement

entered into by the State. Section 22(2)(e) of the Refugee Act, 1996, empowers the Minister, for the purpose of giving effect to the

Dublin Convention, to require an asylum application to be transferred to a convention country (in this case the UK) and section 3(2)

(e) of the Immigration Act, 1999 empowers him to make a deportation order in respect of a person whose application has been so

transferred.

It is important to draw attention to one aspect of the facts of the instant case, which does not, in the event, concern the Court.

The Osayande family did not disclose the fact that an application for asylum had already been made in the United Kingdom and they

had thus misled the State. Counsel for the respondent made it clear that the Minister had not taken this factor into account as

against the Osayandes. Thus, both cases are to be treated on the same basis.

Counsel for the respondent claimed that the European Court of Human Rights (ECHR) had recognised the integrity of the immigration

and asylum system as a relevant and admissible consideration where the authorities of a Member State signatory to the Convention

make decisions affecting family rights pursuant to Article 8 of the Convention. He adopted the summary of the case law of that court

set out by Lord Phillips of Worth Matravers MR in The Queen (Mahmood) v Secretary of State for the Home Department

(“Mahmood”) [2001] 1 W.LobeR. 840 at p.861.

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

treaty obligations.

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

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

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

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

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

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

Lord Phillips developed this summary, having reviewed a number of decisions of the ECHR.

Counsel for the respondent also referred, at the hearing of the appeal, to a number of decisions of courts in the United States. In

Gonzalez-Cuevas and another v Immigration and Naturalisation Service [515 F. 2d 1222; 1975 U.S. App.] the United States Court of

Appeals for the Fifth Circuit helddid not consider that the deportation of parents, though it resulted in the de facto deportation of

their children, who were US citizens, did not violate any constitutional rights of the latter. It stated:

“Petitioners who illegally remained in the United States for the occasion of the birth of their citizen children, cannot gain

favoured status over those aliens who comply with the immigration laws of this nation. Any ruling which had this effect would

stand these statutes on their heads.”

In Schleiffer v Myers [644 F. 2d 656; 1981 U.S. App.], the Seventh Circuit of that court citing in part the following from a plurality

ruling of the Supreme Court of the United States stated:

“The unique role in our society of the family, the institution by which “we inculcate and pass down many of our most cherished

values, moral and cultural” Moore v East Cleveland 431 U.S. 494, 503-504….(plurality opinion), requires that constitutional

principles be applied with flexibility and sensitivity to the special needs of parents and children. We have recognised three

reasons justifying the conclusion that the constitutional rights of children cannot be equated with those of adults: the peculiar

vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the

parental role in child rearing.”

The Court, nonetheless, turning to the case “where deportable aliens have sired children born in the United States who are therefore

American citizens” stated:

“Many courts of appeal have concluded that the constitutional rights of such citizen-children are not violated when the

deportation of their parents necessitates de facto deportation. In such cases, it has been noted that the child’s return to the

foreign country “will merely postpone, but not bar, his (or her) residence in the United States if he or she should ultimately

choose to live here.”

Conclusion

The question in these appeals is how to reconcile the conflict between two constitutional rights or sets of principles. On one side is

the right of an Irish-born citizen of tender years to reside in the State and to have the care, also in the State, of his or her parents.

Mr Hogan does not claim that this is an absolute or automatic right. To that extent, I do not think theit was not right for the Minister

was correct into poseing the question as one involving a claim to an automatic right to reside in the State arising from the fortuity of

an Irish born child. On the other side, there is undoubtedly the prerogative and sovereign power right of the State to control the

entry into and residence in the State of aliens. Theis latter right takes the concrete form of the statutory power of the Minister to

deport unsuccessful asylum seekers. For the purposes of the power to make deportation orders of the type at issue in these appeals,

section 3 of the Refugee Act, 1999, employs the less opprobrious term “non-nationals.”

I propose to consider the matter under the following headings:

The rights of citizenship and residence in combination with the rights of the family;

The prerogative and sovereign rights of the State in respect of the entry and residence of non-nationals;

The decision of this Court in Fajujonu;

The United States cases (though not under a distinct heading);

The case law of the European Court of Human Rights.

Citizenship

It is common ground between the parties that each of the two children is an Irish citizen. It is also agreed that an Irish citizen has

the right to reside in the State. I will return a little later to the exercise of the choice of residence on behalf of a child of tender

years. The appellants ground their claim on Article 2 of the Constitution as it emerged from the nineteenth amendment. For the

Minister, it is argued that this provision effected no change of substance.

Article 9 of the Constitution, having conferred automatic citizenship on living citizens of Saorstát Eireann, stipulated that

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

Section 6(1) of the Irish Nationality and Citizenship Act, 1956 provided that “every person born in Ireland is an Irish citizen.” This

represents the traditional common law principle of jus soli. It has, of course, been heavily qualified in the modern legislation of the

United Kingdom following the break up of the former British Empire. It is clear that an Irish-born citizen, who benefited from section

6(1) of the act of 1956, could not have been retrospectively deprived of that status by amending legislation. To that extent, such

persons even before the passing of the nineteenth amendment enjoyed the constitutional status of citizen.

Article 2 of the Constitution now reads:

“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.”

These words represent are a particularly strong and solemn declaration made very deliberately by the people in referendum. They are

a qualitative statement of the nature of citizenship going beyond what formerly resulted from the exercise of the delegated legislative

competence effected by section 6 of the act of 1956. The “birthright of every person born in Ireland …. to be part of the Irish

nation” must have real content and should cannot be treated as a piece of empty sloganeering. The Irish-born citizen’s participation

in “the Irish nation” includes its “cultural identity and heritage.” This emerges from the third sentence of Article 2 and is what “people

of Irish ancestry living abroad” share with Irish-born citizens.

The Minister, in his written submissions, having cited Article 2, goes on to say that it confers citizenship on a child born to

holidaymakers on a short visa or one born prematurely to an air traveller landing in Ireland on an emergency. Counsel for the

appellants expressed concern that these points tended to devalue the right. It is true that counsel for the respondent attached

importance to the birth of each child in the State as having been a “fortuity,” a term which is also used in some of the United States

cases. It seems clear to me, however, that this factor can have no bearing whatever on the rights of each child as expounded on its

behalf in this case. The child is either an Irish citizen or not. If it is, the quality of its rights as a citizen cannot be affected by the

“fortuity” of his/her birth in the State. I will later discuss the distinct argument, based on the Minister’s interpretation of Fajujonu,

that the family rights of the child may be dependant on the length of time its members have spent in the State. At this point, it

suffices to say that each child born in Ireland has its own unique value and enjoys the same rights as a citizen regardless of the

circumstance of his birth.

The most natural right, one which inheres in citizenship, is the right to reside in the State of that citizenship. Its corollary is the

principle of public international law, alluded to by Walsh J. in Fajujonu, that a State may not expel its own citizens. There have, of

course, been examples of the abrogation of that right. In former times, states exercised power to banish their citizens from their

shores. It is notorious that the citizenship law of the United Kingdom has been drastically changed in the post-war period so as to

deprive some citizens of the right of residence in the UK. Nothing of the sort arises in the present circumstances. As already stated,

the Minister does not dispute the right of the two children to reside in Ireland. However, counsel for the respondent on his behalf,

qualifies the practical effect of that accepted proposition by the statement that the Minister expected that, in reality, the child

would, in each case, be removed from the State on the deportation of the parents. The Minister went so far as to state that he

considered it the duty of the parents to take their children out of the State. That was because it was the Minister’s view of what

constituted the best interests of the child by reference to under Article 41 of the Constitution.

The United States courts faced this issue frankly in characterising this situation as amounting to “de facto deportation” of the

children. They did not see that it involved any violation of rights guaranteed by the United States Constitution. I believe that Walsh J.

was also taking the view that deportation of the parents would amount to de facto deportation of the children in the following

passage from his judgment in Fajujonu:

“… the effect must be that their children who are Irish citizens are faced with the choice of remaining within this State as

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

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

this State.”

At this point, it becomes necessary to refer to an important, possibly the crucial, aspect of Fajujonu which has not been challenged in

any way by the Minister and which was accepted by the learned High Court judge. Finlay C.J. said that, although the Fajujonu

parents, being aliens and not citizens, could not claim any constitutional right to remain in the State,:

“they [were] entitled to assert a choice of residence on behalf of their infant children, in the interests of those infant

children.”

Walsh J. used different wordsexpressed himself differently, but it seems to me implicitly spoke to the same effect. He said:

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

two plaintiffs, all of which children are citizens of Ireland”.

The other three members of the Court said that they agreed with both judgments.

Once it is established that the parents have the natural right to make the choice, on behalf of their child, to reside in Ireland and that

a valid choice to that effect has been made in both these cases it is, no doubt, labouring the obvious to reiterate that each of the

two children has a constitutional right to reside in Ireland. In my view that constitutional right of the child, the right not to be

expelled from the State, is unqualified. The State cannot expel an adult Irish citizen from the national territory. Nor can it expel a

child citizen who has validly elected through his parents, to remain in the State. It does not avail the Minister to state that he

assumed that any decision made in the interests of the children would mean their leaving the State with their parents on the

deportation of the latter. From the words of Finlay C.J., it is clear that it was for the parents to decide what was in the best interests

of their child. It was perfectly rational for the parents, considering, in particular, the terms of Article 2 of the Constitution, to decide

that the child remaining in Ireland would best serve those interests. Nor is it, in my view useful for the Minister to point out that, in

very many cases a child will be moved from one country to another by its parents regardless of its citizenship. That occurs because is

an example of parents, not the State, makeing family decisions; it provides no justification for and not of the State seeking to

substitute its views, in reality its impose its wishes, so as to justify the de facto deportation of the child.

The “birthright … [of the child] ... to be part of the Irish nation” could not, on any realistic view, survive such de facto deportation.

To be fair to the Minister, I do not think he suggests that it could. As already stated, his assumption was that the parents should and

would decide that the child would not remain in the State. The proposition enunciated in the United States case of Schleiffer [644

F.2d 656; 1981 U.S. App.] cited by the Minister, attempts a justification in the following terms:

“Many courts of appeal have concluded that the constitutional rights of such citizen-children are not violated when the

deportation of their parents necessitates de facto deportation. In such cases, it has been noted that the child’s return to the

foreign country “will merely postpone, but not bar, his (or her) residence in the United States if he or she should ultimately

choose to live here.”

I have to confess that I am deeply unimpressed by the argument put forward in the last sentence of this passage, and based, be it

said, on earlier US authority. The deportation of a child of tender years, in practice often in the early months of life, automatically and

unarguably deprives that child of the possibility of being nurtured and educated in the country of his or her citizenship. The notion of

postponement is offensive to logic. It may be that, in reality, the ratio decedendi of these United States decisions is simplythe more

brutal one that a choice has to be made between the two constitutional rights of the child and the power of the State and that, as

stated in the first sentence of the passage, once the deportation of the parents is the desired objective the child has to suffer the

consequences.

That approach is, in any event, in direct conflict with the reasoning of this Court in Fajujonu. Walsh J. was clearly right, in the

passage quoted above, to say that:

“the effect [of deporting the parents] must be that their children …… are faced with the choice of remaining within this State

… and therefore being in effect compulsorily separated from their parents, or having to leave the State with their parents…”

Moreover, it is not possible, in my view, to reconcile the Minister’s argument with the rights guaranteed and declared by Article 2 of

the Constitution, which did not exist, at least in the same form, at the time of Fajujonu. A child, who is de facto deported from the

State before his education commences cannot conceivably be “part of the Irish nation” or “share its cultural identity and heritage.”

The Family

Article 41.1 of the Constitution assigns to the family an exceptionally important status and role in Society and in the “welfare of the

Nation and the State.” This distinguishes the Irish Constitution from the founding documents of many of the nations to whose legal

systems we look with respect. The appellants have cited a number of authorities, which demonstrate the deference allowed by our

courts to the primacy of the family in certain practical contexts. The courts are sadly but frequently called upon to resolve disputes

internal to the family, arising in proceedings relating to, for example, adoption or marriage breakdown. Less frequently, the State or

one of its organs seeks the intervention of the courts, where it perceives a risk to the welfare of the child, i.e. the family,

exceptionally, does not sufficiently protect the interests of one of its children. The present case is unique in that the State asserts

that its own sovereign rights are so urgent and compelling that they should prevail and be accorded precedence over the

constitutional rights of the child. Only in Fajujonu has this court previously considered this direct clash between the interests of a

child and the rights of the State.

In re J. H., an infant [1985] I.R. 375 concerned a child placed for adoption by its mother, who was unmarried at the time of its birth.

Upon her subsequent marriage to the father of the child, she and the father took steps to regain custody of the child so as to bring it

up as part of their family. She applied to have the birth registered and refused further necessary consent to adoption. The High Court

decided to leave custody with the adopting parents because of what was considered to be a risk of long-term psychological harm to

the child. Lynch J. said (at page 389):

“I have come to the conclusion that the answer to my question is that there is not anything really worthwhile to be gained for

the child by transferring her from the adopting parents to the parents. If custody were changed I think that the risk of long-

term psychological harm, and therefore of unhappiness, is sufficiently proximate to outweigh the contrary factors referred to

above.”

This Court allowed the appeal of the natural parents on the custody issue. It considered that the natural parents’ marriage

constituted them as a family with their child and that the High Court should have considered whether there were

“compelling reasons why the welfare of the child [could] not be secured to it in the family unit and by the parents….” (per

Finlay C.J. p. 396.)

In the course of his judgment, with which the other members of the court agreed, Finlay C.J. dealt as follows with the rights of the

child within the family:

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

for in the Constitution ………. Rights under the Constitution as a member of a family, which are: (a) to belong to a unit group

possessing inalienable and imprescriptible rights antecedent and superior to all positive law (Article 41, s. 1); (b) to protection

by the State of the family to which it belongs (Article 41, s. 2); and (c) to be educated by the family and to be provided by its

parents with religious, moral, intellectual, physical and social education (Article 42, s.1.”

By this decision, this court reaffirmed the constitutional status of the family even to the extent that the risk of damage to the child

had to be balanced against the rights of the family as a unit. Finlay C.J. emphasised this in a further passage, as follows:

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

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

parents granted by Article 42, s. 1 of the Constitution.”

This explains why Finlay C.J. adopted a test of “compelling reasons” if the primacy of the family unit was to be disrupted. It also

seems to me to explain the use of different but equally strong words, “grave and substantial reasons,” in the judgment of the same

learned judge in Fajujonu.

The other important authority to which the Court has been referred, and upon which thewhich the appellants particularly rely is NWHB

[2001] 3 I.R. 622. In that case, a health board sought an order of the court permitting it to administer a P.K.U. screening test to an

infant child, notwithstanding the refusal of the parents of the child to consent to the procedure. The case is of particular interest,

because the court was asked to override the parents’ rights to make conscientious though mistaken decisions affecting the welfare of

their children. Each party has cited this case to some extent; the appellants for its exposition and elaboration of the nature of the

family in the Constitution and the rights of the family; the Minister to agree that he was justified in his assumption that the parents

would make a decision in the best interests of the child. Thise cCourt was particularly emphatic in holding that the rights of the family

are antecedent to and prevail over the rights of the State itself. The judgments deal in their different ways with the constitutional

status and the philosophical basis of the family in Articles 41 and 42. While it is true that Keane C.J. dissented as to the result of the

appeal, his exposition of the philosophical rationale of the family was not in dispute.

Keane C.J stated at p. 686:

“Article 41.1 acknowledges the primary role of the family in society. In philosophic terms, it existed as a unit in human society

before other social units and, in particular, before the State itself …; the family existed before that unit and enjoys rights

which, in the hierarchy of rights posited by the Constitution, are superior to those which are the result of the positive laws

created by the State itself.”

The Chief Justice proceeded to delineate and describe, in a passage remarkable for its eloquence and clarity, the relationship in our

constitutional scheme between the family and the State:

“What is beyond argument is that the emphatic language used by the Constitution in Article 41 reflects the Christian belief that

the greatest of human virtues is love which, in its necessarily imperfect human form, reflects the divine love of the creator

for all his creation. Of the various forms which human love can take, the love of parents for their children is the purest and

most protective, at least in that period of their development when they are so dependant on, and in need of, that love and

protection. I believe that Article 41, although couched in the language of “rights”, should not be seen as denying the truth to

be derived from the experience of life itself, that parents do not pause to think of their “rights” as against the State, still less

as against their children, but rather of the responsibilities which they joyfully assume for the children’s happiness and welfare,

however, difficult the discharge of those responsibilities may be in the sorrows and difficulties almost inseparable from the

development of every human being. The rights acknowledged in Article 41 are both the rights of the family as an institution,

and the rights of its individual members, which also are guaranteed in Article 42, under the heading “Education”, and which

also derive protection from other articles of the Constitution, most notably Article 40.3.

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

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

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

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

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

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

Denham J. spoke thus at p. 719:

“…the legislation and the rights of the child have to be construed in accordance with Article 41which places the family at the

centre of the child’s life and as the core unit of society.”

At p. 725 she said:

“The bonds which bind a child in a family are strong. However, any intervention by the courts in the delicate filigree of

relationships within the family has profound effects. The State … should not intervene so as to weaken or threaten these

bonds unless there are exceptional circumstances.”

Murphy J. stated at p. 732:

“The Thomistic philosophy - the influence of which on the Constitution has been so frequently recognised in the judgments and

writings of Walsh J. - confers an autonomy on parents which is clearly reflected in these express terms of the Constitution

which relegate the State to a subordinate and subsidiary role. The failure of the parental duty which would justify and compel

intervention by the State must be exceptional indeed.”

While Murray J. did not think it necessary to consider the philosophy underlying the constitutional provisions as the terms of the

Constitution were sufficiently explicit in themselves. They were not, he thought “wholly unique.” He drew attention, inter alia, to the

terms of the Universal Declaration of Human Rights on “the inherent dignity and ... the equal and inalienable rights of all members of

the human family.” He also stated, however:

“………the family as a moral institution enjoys certain liberties under the Constitution which protect it from undue interference

by the State, whereas the State may intervene in exceptional circumstances in the interests of the common good or where

the parents have failed for physical or moral reasons in their duty towards their children.”

The fifth member of the Court was Hardiman J. He noted the “exceptionally strongly worded provisions of Articles 41 and 42 of the

Constitution….” Later (p. 757), he remarked on the suggested provenance of Article 41 in Papal encyclicals and Catholic teaching, but

thought that the same approach could be grounded otherwise. He cited an American academic authority to the effect that the

common law.

“reflecting Bentham’s view, has a strong presumption in favour of parental authority free of coercive intrusions by agents of

the State.”

This lengthy exposition is, I think, justified in the very particular circumstances of this case. The present case pits the claims of the

State itself against the constitutional rights of an Irish-born citizen child to be raised as a member of his family in the State. The

words of Article 41 are, as stated by Hardiman J., “exceptionally strongly worded.” I do not think that any of the international

instruments to which reference has been made or any comparative national constitution benefits from contains the philosophical

underpinning that is expressed in the clear language of the Article. Article 41.1 describes the nature of the family and the

philosophical basis for its role in society. This is that it is a “moral institution” and that it is the “natural primary and fundamental unit

group of Society.” It follows that it enjoys rights. These are declared to be “inalienable and imprescriptible” as well as, what must be

consequential, “antecedent and superior to all positive law.” It remains impossible to improve on the compendious explication of this

provision contained in the judgment of Walsh Js in McGee v. Attorney General [1974] I.R. 284, at p. 310:

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

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

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

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

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

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

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

of that society.”

Elsewhere in the same judgment the same learned judge explained that the moral foundation of the family and similar rights had to

take account of d referred to the pluralist character of our society and said that: (at p.318)

“The Courts cannot as a matter of constitutional law be asked to choose between the differing views, where they exist, of

experts on the interpretation by the different religious denominations of either the nature or extent of these natural rights as

they are to be found in the natural law.”

It is true that the common law is deeply influenced by the natural law, as suggested by Hardiman J. in the passage I have quoted.

The great commentators made constant appeal to the divine inspiration of the laws. In modern common law countries, things are

different. Legislatures make laws in an almost entirely secular context. Article 41 of the Constitution, however, situates the family on

a moral plane reflective of Christian notions of natural law. The important point is that the rights of the family are unambiguously

founded on its character as a natural and moral institution. As has been frequently said the rights of the family are superior to those

of the State itself.

The Sovereign Power of State

The Minister’s case is, in its essence encapsulated on the proposition enunciated by Gannon J. in Osheku v. Ireland [1986] I.R. 733:

(at p. 746)

“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.”

Counsel for the respondent drew attention to the approval that passage has received in some decisions of this Court. One of these

was Laurentiu, [1994] 4 I.R. 26. From the historical point of view, it appears that the power to exclude or deport aliens was part of

the Crown prerogative. This was stated by Barrington J in his judgment in Laurentiu (at p. 76) referring to its use in:

“earlier times to authorise the settling in Ireland of Huguenot refugees from France and Protestant refugees from the

Palatinate.”

It also appears from the citation by Keane J., as he then was, of Denning M.R. to that effect (p. 62) and on p. 91, where he recalls

that it was accepted by all parties that

“the power of the State to deport aliens independently of any statutory power was part of the prerogative power.”

Keane J. went on to remark that it was unnecessary to enter on the vexed question of the extent to which the Royal prerogative

survived the enactment of the Constitution of Saorstát Éireann. It was sufficient, in his view, to say

“that at the time of the enactment of [the Aliens Act, 1935] the power of Saorstát Eireann to expel or deport aliens was, in

the absence of legislation, vested in the Crown acting on the advice of the Executive CounciLobe”

He also noted, at page 91, however, that:

“It is, of course, the case that in modern times, both here and in other common law jurisdictions, the exercise of the power is

regulated by statute, but that does not affect 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.”

In the present case, the matter is precisely governed by statute. The Minister has made deportation orders pursuant to section 3(1)

(e) of the Immigration Act, 1999, on the basis that each subject of the order is

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

of the Refugee Act, 1996.”

The Minister says that the need to give effect to that order should prevail over the rights of the child.

Distinguishing Fajujonu

Counsel for the appellants summed up the case as raising, in effect the question whether, as Smyth J. in his judgment thought they

could, these cases can be distinguished from Fajujonu. If they cannot, it is common case that the appellants should succeed. The

Minister does not dispute the correctness of Fajujonu or ask this Court to overrule it or to disapprove its reasoning.

There are two suggested grounds of distinction. Firstly, in Fajujonu the non-national parents had lived in the state for an appreciable

time before the matter came before the Supreme Court. Secondly, in that case three children had been born in Ireland, not merely

one, as in each of these cases. On the first point, the Minister relies on a dictum of Finlay C.J. and on the second one of Walsh J. All

three other members of the court appear to have expressed agreement with both judgments. I will refer to the relevant parts of the

judgments.

The following summary of the facts is taken from the High Court judgment (Barrington J.) and was approved by the Supreme Court. It

is as follows:

“The first plaintiff is aged 36 years and is a citizen of Nigeria. The second plaintiff is a Moroccan citizen. They met in London in

the late 1970s where he, at that time, was a temporary resident studying accountancy. They were married in the city of

Westminster in London on the 20th March, 1981. At the end of March, 1981, Mr. Fajujonu and his wife came to live in Ireland.

Whether knowingly or not, they came as illegal immigrants and have at all material times been illegal residents in Ireland and

subject to the risk that a deportation order might be made against them pursuant to the provisions of s. 5 of the Aliens Act,

1935. No such deportation order has in fact been made though the plaintiff Mr. Fajujonu has been asked by the Minister for

Justice to make arrangements for his departure from the State and it was this request, coupled with the fear that a

deportation order would follow, which gave rise to the present proceedings. A deportation order was apparently made against

Mr. Fajujonu in the United Kingdom in July, 1981, but this order, I am informed, was invalid and is no longer in force.

I am satisfied that at all material times since he came to Ireland Mr. Fajujonu has been anxious and willing to work. He has not

however succeeded in obtaining a work permit nor has he succeeded in completing his accountancy studies. For a time he

drew unemployment assistance. To obtain this he had to sign a certificate saying that he was available for work. He was

"available for work" in the sense that he was physically able and anxious to work but he was not legally "available for work" in

the sense that, not having a work permit, he was not legally entitled to work for reward. In December, 1983, Dublin

Corporation offered Mr. and Mrs. Fajujonu a house at 27 Croftwood Crescent, Ballyfermot, Dublin, where they still reside. They

are apparently popular with the local community. The secretary of the local tenants' association, Mr. Larkin, gave evidence on

their behalf before me. Indeed it would appear that it was a request by the committee of the Ballyfermot sports and leisure

complex to employ Mr. Fajujonu which brought his presence in the country formally to the attention of the Department of

Justice. From enquiries made by the Department of Justice it would appear that, at one stage, when Mr. Fajujonu was

stopped by police in England, he had in his possession a birth certificate purporting to show that he had been born in Ireland.

It does not appear however that Mr. Fajujonu in fact used the certificate for any improper purpose. However, the issue of

principle which the plaintiffs seek to raise in this case arises not from any of these matters but from the fact that the third

plaintiff, Miriam Fajujonu, is a citizen of Ireland having been born here on the 24th September, 1983. Since then Mr. and Mrs.

Fajujonu have had two further children. These also are Irish citizens and, though they have not been joined as parties to these

proceedings, the same issues arise in relation to them as arise in Miriam's case.”

The material part of the judgment of Finlay C.J., at p. 162, is:

“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.”

In addition, when deciding that the matter of the deportation had to be reconsidered by the Minister in the light of the possible new

state of facts, he said at page 163:

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

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

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

change since this matter was investigated in 1984.”

Walsh J., in the course of a passage which I have already quoted, said:

“The third plaintiff is one of three children of the first two plaintiffs, all of which children are citizens of Ireland. If the first two

plaintiffs, being the parents of the infant children, are deported, the effect must be that their children who are Irish citizens

are faced with the choice of remaining within this State as they are entitled so to do and therefore being in effect

compulsorily separated from their parents, or having to leave the State with their parents and thus ceasing to have the

benefit of all the protection afforded by the laws and the Constitution of this State. In my view, the first two plaintiffs and

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

protection and the society of their parents in this family group which is resident within the State. There is no doubt that the

family has made its home and residence in Ireland.”

I leave over for consideration the argument that the circumstances of control of the entry of non-nationals has changed so

substantially through the passing of the Refugee Act, 1996, and later statutes providing for the processing of asylum applications that

the Minister is better able to justify his deportation orders. The present question is whether the duration of residence of the Fajujonus

in the State or the fact that they had three children constituted part of the ratio decedendi of that case so as to distinguish it from

the present appeals. To be truly distinguishable, it must be shown that the principles it lays down - the constitutional status of the

child as an Irish citizen , the right of the parents to elect Irish residence for him, the need to show grave and sufficient reason based

on the common good - can be set aside for the purposes of this case.

Finlay C.J. referred to the “appreciable time” that the Fajujonus had spent in the State. Both he and Walsh J. referred to the number

of their children who had been born in the State. I have to ask what principle underlies the Minister’s argument. It must, at this point

in the argument be a matter of principle, not a question of balancing rights. The Minister’s contention is that the principle underlying

Fajujonu is restricted to cases of “appreciable residence” in the State and/or cases where there is more than one child.

It was, of course, the fact that the Fajujonus had resided in the State for a number of years and Finlay C.J. recited that fact. I

cannot, however, discover any legal reasoning in the passage that would suggest that the constitutional rights of an Irish-born child

depend on the length of time during which his parents have resided in the State. It seems to me, in fact, that there could not be

such a principle. Firstly, it is rightly conceded that the child in each of the present cases is in fact a citizen. It follows that the child

enjoys the constitutional rights, as a member of its family, which are guaranteed by the Constitution and described in the case law.

Indeed, the younger a child is, in many respects, the more pressing and urgent is its need for the nurture and care of its parents,

particularly its mother.

I would reject the argument based on the number of children in the family for similar reasons. Again, in each case, the child is a

citizen with the consequential right to the society, care and nurture of its parents in the State. There cannot, in my view, be a

constitutional principle making those rights of an Irish-born citizen depend on the number of other Irish-born citizens in the family. In

Fajujonu, there were three Irish-born children. Here there is one in each case. Would the Irish-born child lose its constitutional rights,

for instance, if its mother gave birth to a later child or children outside the State?

In my view Fajujonu cannot be distinguished in any meaningful way.

When analysing the reasoning of Fajujonu, it is important to remember that the Supreme Court did not decide the issue of whether

the Fajujonu family should be deported. It made an order permitting the plaintiffs to apply to the High Court (to include any

appropriate application for amendment of pleadings) if they wished to challenge any further decision of the Minister granting or

refusing a permit to remain in the State. The criteria to be applied by the Minister in making any such decision were laid down in the

judgments and were that there would have to be “grave and substantial reason” (Finlay C.J.) or “predominant and overwhelming”

reason (Walsh J) to justify a negative decision. That is the principle to be found in those judgments.

European Court of Human Rights decisions

Article 8 of the Convention provides:

“(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the

law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of

the country, for the prevention of disorder or crime, for the protection of health or morals, or the protection of the rights or

morals of others.”

The passage from the judgment of Lord Phillips in Mahmood [2001] W.LobeR. 840 cited by counsel for the respondent on behalf of the

Minister was clearly designed to extract such principles as would help to decide the case before the Court of AppeaLobe It does not

purport to be a complete general summary of the approach of the European Court of Human Rights (“ECHR”). In particular, the third

paragraph at p.861 needs careful reading. It reads:

“(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.”

That paragraph does not implylead to its converse.; it does not follow that there is no infringement of Article 8 in any case where one

family member is excluded from a state. Firstly, it should be noted that the paragraph deals with both “removal and exclusion.”

Exclusion, in the sense of refusal to admit a person who has never resided in a state will be easier to justify by reference to the first

principle that a state is not obliged to admit non-nationals. Secondly, and most importantly, the paragraph does not address the

distinct question of the need for a state to put forward a reason for expulsion.

It is hazardous to essay a summary of the case law of the ECHR, which was not, in any event, fully argued. It is possible, nonetheless

to deduce some useful guidance from such authorities as have been opened.

Boultif v Switzerland [33 E.H.R.R. 50] 1179 concerned the refusal of the Swiss authorities in 1998 to renew the residence permit of an

Algerian national, married to a Swiss citizen. He had been sentenced to two years imprisonment for robbery and damage to property in

1994. The Court, at paragraph 46 of the judgment set out the following principle:

“46. The Court recalls that it is for the Contracting States to maintain public order, in particular by exercising their right, as a

matter of well-established international law and subject to their treaty obligations, to control the entry and residence of

aliens. To that end they have the power to deport aliens convicted of criminal offences. However, their decisions in this field

must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be necessary in a democratic

society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued

(see the Dalia v. France judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 91, § 52; the Mehemi

v. France judgment of 26 September 1997, Reports 1997-VI, p. 1971, § 34). (emphasis added).

47. Accordingly, the Court’s task consists in ascertaining whether the refusal to renew the applicant’s residence permit in the

circumstances struck a fair balance between the relevant interests, namely the applicant’s right to respect for his family life,

on the one hand, and the prevention of disorder and crime, on the other.

48. The Court has only to a limited extent decided cases where the main obstacle to expulsion is the difficulties for the

spouses to stay together and in particular for a spouse and/or children to live in the other’s country of origin. It is therefore

called upon to establish guiding principles in order to examine whether the measure was necessary in a democratic society.

In assessing the relevant criteria in such a case, the Court will consider the nature and seriousness of the offence committed

by the applicant; the length of the applicant’s stay in the country from which he is going to be expelled; the time elapsed

since the offence was committed as well as the applicant’s conduct in that period; the nationalities of the various persons

concerned; the applicant’s family situation, such as the length of the marriage; and other factors expressing the effectiveness

of a couple’s family life; whether the spouse knew about the offence at the time when he or she entered into a family

relationship; and whether there are children in the marriage, and if so, their age. Not least, the Court will also consider the

seriousness of the difficulties which the spouse is likely to encounter in the country of origin, though the mere fact that a

person might face certain difficulties in accompanying her or his spouse cannot in itself exclude an expulsion.”

The State seeking to justify expulsion even of a person convicted of a crime must be able to point to “a pressing social need.” In

Boultif , [33 E.H.R.R. 50] the Court was impressed by the good behaviour of the applicant in the six years following the conviction.

While accepting the Swiss fears of danger to public order and security, it ruled that they were mitigated by the circumstances and

found a violation of Article 8. While Boultif is not one of the “immigration” cases of the ECHR upon which the Minister relies, it

illustrates both the principle of the need for the state to justify its action and the fact that the ECHR will consider each case on its

own individual merits.

I will next refer briefly to two of the cases cited by Lord Phillips and from which he derived his summary.

One of these was on Abdulaziz v UK (1985) 7 EHRR 471. Three women of different nationalities had rights of residence in the UK but

not, it is important to note , citizenship. They wished to be joined by their non-British spouses, who had by various means obtained

access to the UK. The ECHR held that there was, in each case, a sufficient family relationship for Article 8 to apply. However, there

was not a breach. The Court observed that the cases did not relate to immigrants who already had a family, which they left behind in

another country until they had achieved settled status in the United Kingdom. It was only after settling in the United Kingdom, as

single persons, that the applicants contracted marriage. Article 8 did not, in the view of the ECHR, impose a general obligation on a

Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-

national spouses for settlement in that country. In addition, at the time of their marriages the respective spouses were aware of the

improbability of their respective spouses being granted access to the UK.

The other is a more recent case, Gül v Switzerland (1996) 22 EHRR 93. A Turkish Kurd father failed in his asylum application in

Switzerland. He was allowed, nonetheless, permanent residence and then, for humanitarian reasons, because of her poor health, to be

joined by his Turkish wife. The case concerned a later request to be joined by his 12 year-old son who had never left Turkey. The

Court reiterated that it followed:

“from the concept of family on which Article 8 is based that a child born of a marital union is ipso jure part of that relationship

and hence, from the moment of the child's birth and by the very fact of it, there exists between him and his parents a bond

amounting to “family life”,… which subsequent events cannot break, save in exceptional circumstances.”

The court continued:

“The present case concerns not only family life but also immigration, and the extent of a State's obligation to admit to its

territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved and the

general interest. As a matter of well-established international law and subject to its treaty obligations, a State has the right to

control the entry of non-nationals into its territory.

Moreover, where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to

respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its

territory. In order to establish the scope of the State's obligations, the facts of the case must be considered.

Furthermore, although Mr and Mrs Gül are lawfully resident in Switzerland, they do not have a permanent right of abode, as

they do not have a settlement permit but merely a residence permit on humanitarian grounds, which could be withdrawn, and

which under Swiss law does not give them a right to family reunion ….”

This short digression through the case law of the ECHR does not provide an easy or automatic answer to any particular case of

suggested violation of Article 8. It seems clear that the jurisprudence of the Court continues to evolve. At the least, it demonstrates

that a State needs to justify its decisions on a case by case basis. None of the cases mentioned above involved citizenship rights. It

was material to the decisions in the last two cases that the residents in the UK or Switzerland respectively were not, in the first

case, citizens (they exercised a choice to reside there) and, in the second case, had no permanent right of residence. None of the

cited cases exhibits the common features of the present appeals that the children are Irish citizens and have constitutional family

rights under the Constitution. It seems probable - I would not go further - that the ECHR would not accept as a reason for expulsion,

which had disruptive effect on family life, an abstract argument, unrelated to some concrete need of the state, but based simply on

the general need to maintain the integrity of the immigration system.

When drawing upon the case law of the ECHR, I am not assuming that the Convention has direct effect in Irish law. This Court has

frequently said that it has not. It might have been argued that, where the State seeks to justify a decision on the basis of the need

to operate one international agreement - in this case the Dublin Convention - it should not be free to ignore its obligations under

another. No such argument has been made in this case. It is also important at all times to bear in mind that the Convention merely

lays down minimum standards. It is open to the Member States to adopt stricter ones. In other words, it is not valid to deduce from

the fact of compatibility with the Convention, that the impugned act complies with the Constitution. It may, conversely, be possible

to argue persuasively that an act which does not satisfy the minimum standards of the Convention should not lightly be considered

compatible with the more rigorous demands of the Constitution.

The Minister’s decision

Finally, I consider whether the decision of the Minister in each of these cases should be quashed.

The reasons can be taken as those given in the Lohan memorandum. In each case, the following three reasons were given:

The length of time the family has been in the State- [Lobe case: only nine months]; [Osayande case: only 7 months at this

stage but less than 4 months at the time of making the deportation order];

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

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

In the Lobe case, the following additional reason was given:

The Lobe family and Kevin Lobe can adapt to the family’s return to the United Kingdom and the Czech Republic and that their

lives and wellbeing would not be endangered.

It seems to me that the last reason relating to the integrity of the asylum and immigration systems is the most important. It is the

one upon which the Minister most strongly relied upon at the hearing.

The Lohan Memorandum sets out in detail the reasoning behind the Minister’s decision. The following is a summary of the essential

parts which are common to the two cases. I substitute “child” for the name of the child in each case and father or mother, where

relevant. Mr Lohan proposed to the Minister:

“In assessing this case, the various judgements of the courts in respect of matters elated to the rights of non-nationals have

been considered – including in particular the cases of Osheku, Fajujonu and more recently the matter of P, L and B.

In view of the fact that the deportation of the Lobe family/Mr Osayande could result in the removal of [the child,] an Irish

citizen , from the State in circumstances which could be interpreted as a constructive deportation, the Minister should weigh

up the rights of that Irish citizen against the needs of the common good.

It is accepted that [the child] is an Irish citizen and may have rights to reside in the State. It would also appear that he has

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

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

State’s asylum and immigration laws. The Lobe family have not been in the State for a lengthy period …………. [Refers to

periods and UK asylum applications]

It is well established that the State’s right to expel or deport non-nationals is regarded as an aspect of “the common good

related to the definition, recognition and protection of the boundaries of the State.” This was acknowledged most recently in

the judgement of the Supreme Court in P, L and B v. Minister for Justice, Equality and Law Reform … . The maintenance and

integrity of the immigration and asylum systems is certainly a factor which the Minister is entitled to have regard to in this

case. In this context, the Minister is entitled to take into account the manner in which the family entered the State…… the

actions of the applicant(s) in the proceedings are designed to circumvent the operation of the Dublin Convention to which the

State is a party and to which it is the policy to apply the provisions, is a factor which the Minister should take into account.

On balance, the interests of the common good and of the protection of the State through seeking to preserve the respect for

and integrity of the asylum and immigration systems are seen in this case as outweighing the countervailing claims which the

father of the Irish-born child and consequently [Lobe case only] his family have made to the Minister.”

The Lohan Memorandum contains a fair summary of the constitutional rights claimed by the child in each case, as a citizen and

member of a family. Those rights are not absolute, but they are personal rights to which the Constitution, by its express terms,

accords a particularly high value. They relate to the fundamental unit of Society in this State. This Court has repeatedly said that

these rights can be invaded by the State, even in the interests of the child of the family only in exceptional circumstances. The

dictum of Finlay C.J. in In re J. H. [1985] I.R. 375 establishes a standard of “compelling reasons.” In Fajujonu, the Court recognised

that this could happen if, in the words of Finlay C.J. there were “grave and substantial reasons.” Walsh J. in the same case said that

the Minister would have to consider the matter according to the following standard:

“In my view, he would have to be satisfied, for stated reasons, that the interests of the common good of the people of Ireland and

of the protection of the State and its society are so predominant and so overwhelming in the circumstances of the case, that an

action which can have the effect of breaking up this family is not so disproportionate to the aim sought to be achieved as to be

unsustainable.” (emphasis added).

These passages are unanimous in requiring reasons of a very high and compelling order to justify the invasion of family rights of the

sort that are at issue in this case. The Minister’s reasons are to be found in the Lohan Memorandum. The reason, which is said to

outweigh the constitutional rights, is the need for respect for the integrity of the asylum and immigration systems. It is not explained

how or why that is so. I will consider separately the individual aspects of the Lobe and Osayande cases. At this point what is crucial

is that there is no allegation against either family or any member of it of any misbehaviour, incapacity or malady calling, in the

interests of the common good, for their removal from the State. In short, the Minister does not claim that their presence in the State

would in itself be inimical to the common good.

I do not accept counsel for the appellant’s argument that the sort of reason which would justify a deportation order in circumstances

such as are present in this case must always be individual to the non-national involved. It is conceivable that such matters as general

criminality of certain groups, prevalence of infectious diseases, racial or communal tensions, strains on the resources of the State or

high levels of unemployment in the State would justify such action. However, nothing of the sort has been advanced by the Minister.

In my viewview, the need to preserve the asylum and immigration system is an abstract, open-ended administrative reason that could

not satisfy the test propounded in Fajujonu. The Minister relies, in this context, on the judgment of Hardiman J., speaking for this

court in P, L & B (Unreported, Supreme Court, 30th July, 2001). The applicants in the three cases there before the Court had each

applied for asylum and been validly refused. As Hardiman J. stated in his judgment, their “rights had been fully vindicated in

unchallenged proceedings conducted pursuant to statutory provisions.” They had at most the legal right to have their

representations on humanitarian grounds considered in accordance with fair procedures. The Court held that this had been done. The

Minister included “the interests of public policy and the common good in maintaining the integrity of the asylum and immigration

system …” as a ground for making the deportation orders. There was, however, no question of an Irish-born child and, therefore,

crucially, no constitutional rights over which the State policy had to prevaiLobe For that reason, I do not consider the case of P, L &

B to be helpful in deciding these appeals.

I do not accept either that this result is altered by the changed statutory regime represented by the three statutes that have passed

into law since the decision in Fajujonu. Counsel for the respondent offered this as an additional reason why the Minister was entitled

to expect that the integrity of the asylum and immigration systems would be respected. I do not regard this as amounting to any

more than a repetition of the previous argument. The Minister calls in aid only the existence of the statutory machinery. It is beyond

debate that the advent of a large number of asylum seekers and the concomitant establishment of a statutory regime to deal with

them represents a significant change to some important aspects of the life of the State. Here, it has to be recalled once more that

the Minister is not relying on the admittedly great increase in the number of persons presenting asylum applications in recent years.

That, after all was not a reason given by the Minister for his decision. The Minister has not provided the Court with any background

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

Immigration can be beneficial or prejudicial to the interests of the common good. The Minister has not furnished any cost/benefit

analysis. The Court is left to assume that the presence in the State of the parents of the two children involved in these cases is ipso

facto and self-evidently inimical to the common good, simply because they are failed asylum-seekers. I do not think that the very real

change in statutory circumstances gives any added force to the Minister’s reliance on the need to preserve respect for the system.

There is an additional reason for serious concern that the Minister should require that the Court should accept such a reason. It

seems to be assumed that the normal standard for judicial review of such decisions should be that usually applied to administrative

decisions and called the Wednesbury test, as more fully developed in The State (Keegan) v Stardust Compensation Tribunal [1986]

I.R. 642 and O’Keeffe v An Bórd Pleanála [1993] I.R. 39. That is that the decision, in order to be quashed, must be so defective as to

attract the description variously expressed by Henchy J in the former case and summarised by Finlay C.J. at p. 70 of his judgment in

the latter:

"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 has breached his obligation whereby he 'must not flagrantly reject or

disregard fundamental reason or common sense in reaching his decision'."

It appears to have been the view of Denham J., with whom Hamilton C. J. agreed, in Laurentiu [1994] 4 I.R. 46 (see p. 62 of her

judgment) that review of deportation orders is to be conducted in accordance with these principles. Counsel for the respondent,

when asked about this matter at the hearing, argued that it was not relevant to the present case. The matter was certainly not

argued on these appeals and, to that extent, any further remarks about it must be obiter. It seems to me that, where as in this case,

constitutional rights are at stake, such a standard of judicial scrutiny must necessarily fall well short of what is likely to be required

for their protection. This appears to have led to some modification of the test in other jurisdictions. In Mahmood, the decision of the

English Court of Appeal, upon which the Minister has relied, Laws L.J. and Lord Phillips both applied a significantly modified

Wednesbury test, one based on “anxious scrutiny” to a case involving interference with fundamental rights. In a case such as the

present, the routine application of the unmodified Wednesbury test it makes the decisions of the Minister virtually immune from

review.

The position of the State, as presented to this Court is, in effect, as follows. The Lobe and Osayande families enjoyed the right to

present asylum applications in accordance with prevailing statutory provisions. In each case, these applications failed, because they

should have been pursued in the UK, pursuant to the Dublin Convention. In each case, the birth in Ireland of a child to the family,

with the right of citizenship, did not warrant permitting the child to continue to enjoy the benefit of the society and nurture of its

parents in the State. This was because the need to preserve the integrity of the asylum system, including the operation of the Dublin

Convention overrode any such rights. It was not based on circumstances peculiar to the two children involved. This, it seemed at the

end of the hearing of the appeal, represented a considered and consistent State policy. It seemed reasonable to presume that the

State would, as a matter of such policy, deport the non-national parents of every child born in the State once their asylum

application had been resolved. In other words, all persons similarly situated will be deported. The Minister, as a matter of policy will

not allow such persons to remain in the state.

At this point, I wish to refer to certain material, which was not before the Court, but my remarks upon it are necessarily obiter. It is,

of course, not normal to refer, in the judgments of this Court, to matter not presented to the Court during the conduct of an appeal.

The State will, it can be safely be assumed present before the Court all material relevant to the policies it defends. However, I have

come to the conclusion that it would not be right to ignoreclose my eyes to some very important information, taking the form of

answers to parliamentary questions, which was not presented to the Court by either side.

It has come to my notice, firstly from a news item and, then from consultation of the record of the Oireachtas, that the policy

actually operated by the State in cases such as the present appears to have been, in many cases, generally to allow the parents of a

child born in the State to remain here in many cases. On 21st February 2001, the Minister for Justice, Equality and Law Reform stated

in the Dáil, in the course of an answer to a parliamentary question:

“The number of applications received by my Department for permission to remain on the basis of parentage of an Irish citizen

child during 2001 was 6,570, of which 5,924 were in respect of current or former asylum applicants. Prior to 2001, statistics

were only maintained on applications granted, not on applications received. The total number of persons granted permission to

remain in the State on the basis of their parentage of an Irish citizen was 1,515 in 2000 and 1,428 in 1999. No applications of

this type were granted in 1998 as the basis for granting such permission was under review at that time. Figures are not

available for the number of persons granted permission to remain on this basis in 1997 and 1996 other than for current or

former asylum seekers. In 1997 and 1996, 107 and 142 current or former asylum applicants were granted permission to

remain on the basis of their parentage of an Irish citizen. Statistics are not available for either 1994 or 1995.”

On 17th December 2002, the Minister furnished a further parliamentary answer as follows:

“For the period 1996 to 2001 a total of 4,853 persons were granted leave to remain on the basis of an Irish born child. From 1

January to 30 November 2002 a total of 2,879 persons have been granted leave to remain on the basis of an Irish born child.

The above figures represent current or former asylum seekers.

The result of the foregoing would appear to be that the following numbers of persons were permitted to remain in the State “on the

basis of an Irish born child”:

1996 142

1997 107

1998 nil

1999 1,428

2000 1,515

2001 1,661

2002 2,879

The reason for the absence of any such cases in 1998 was, as stated by the Minister on 21st February, that the basis for granting

such permission was under review. Thereafter, the practice of granting permission appears to have resumed, but it is not clear upon

what basis. . I have inferred the figure for 2001 by deducting the total for the years 1996 to 2000 (3,192) from the total given by the

Minister on 17th December (4,853). I am unablet is impossible to establish the proportion borne by the cases in which permissions was

granted to the total number of applications and it would be hazardous to attempt to do so. There are obvious problems with the

figures. The Minister’s statement that 6570 applications were received during 2001 seems at variance with the other figures. It is

clear, however, that a substantial number of applications are successful. In these circumstances, I cannot help observing that the

Minister has refused the applicant children the right to have their parents remain in the State,it is my opinion that the Minister should

not have asked this Court to approve the reasons given by him, based essentially ononly on the integrity of the asylum and

immigration system and the operation of the Dublin Convention, when it is patent that, in many cases, where it could do so, the State

does notr choose to rely on that rationale. Mr Lohan, it is true, in his affidavit, said that there had been “a substantial increase in the

number of applications for residency on the basis of parentage of an Irish born child.” He did not, however, state that a large number

of these applications are granted or on what basis. It is important to emphasise that it was at no point part of the case for the

appellants, either in the High Court or, consequently and necessarily, in this Court, that the decisions in their cases were incorrect,

capricious, inconsistent or discriminatory by reference to any policy relating to permitting some persons to remain in the state “on the

basis of an Irish born child.” It seems to me, nonetheless, that it may be that many cases are resolved in a manner different from the

present and in accordance with criteria not stated in the relevant decisions. Unlike the case of Mahmood, where the policy of the UK

government regarding non-nationals marrying UK citizens was before the court in the form of written guidelines, the court knows

nothing of the policy of the Minister past or present. Since the matter was not argued or referred to in any way during the conduct of

the appeal, it is not possible to draw any firm conclusion.

I turn then to the reason expressed in these terms in the Lohan Memorandum: “the application of the Dublin Convention to which

Ireland is a party.” Since each family concerned had made a prior application for asylum in the United Kingdom, certain provisions of

the Dublin Convention became relevant. That Convention is in force between the Member States of the European Union. It is, as

stated in its title, for the purpose of “determining the state responsible for examining applications lodged in one of the Member

States of the European Communities.” The object is to avoid multiple applications for asylum by the same person in different states,

called “refugees in orbit.” In each case, an asylum application had been made in the UK prior to the arrival of the family in Ireland. A

formal request was made to the UK to take the five family members, in the Lobe case, and Mr Osayande, in his case, back to the UK

pursuant to Article 10(1)(e) of the Convention. The UK accepted responsibility pursuant to Article 8. That Article provides:

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

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

examining it.

Article 13 provides for inter-state requests to take back applicants. Thus, having been requested to take back the applicants, the UK

was obliged to do so. That did not mean, however, that Ireland was bound to return the applications to the UK. It was free to

process the applications itself. Article 3.4 provides:

“Each Member State shall have the right to examine an application for asylum submitted to it by an alien, even if such

examination is not its responsibility under the criteria defined in this Convention, provided that the applicant for asylum agrees

thereto.”

Article 9 also provides:

“Any Member State, even when it is not responsible under the criteria laid out in this Convention may, for humanitarian

reasons based on family or cultural grounds, examine an application for asylum, at the request of another Member State,

provided that the applicant so desires.”

It will be seen that it was perfectly possible for this State to examine the application for asylum in either of these cases in

accordance with the terms of the Dublin Convention. It would not be in breach of its obligations if it chose to do so.

Accordingly, I do not think that the application of the Dublin Convention furnishes a sufficiently powerful reason to justify the Minister

in deporting the parents of the Irish-born children in these cases.

Finally, I do not consider that the first reason given, relating to the length of time each family had resided in the State (or, in the

Lobe case, the possibility of the Irish-born child adapting to another country than Ireland) can prevail over the constitutional rights of

the child which is what has been in issue at all times in these cases. The fact that the parents have resided in the State for a longer

or shorter period may be relevant to the consideration of their rights and interests. It seems to me that the State has throughout the

conduct of the appeals approached the matter on the assumption that they are concerned with the rights of the parents. It has

always been clear that they are not. I do not accept that the State has shown, in any respect, that there exists sufficiently powerful

reasons for the State’s rights to prevail over those of the child.

For all of these reasons, I would be in favour of allowing the appeal. In the circumstances, it is not appropriate for me to propose any

order.