Child deportation orders overturned

In a judgment with likely implications for many other cases, the Supreme Court has unanimously overturned deportation orders made in 2002 by the then minister for justice in relation to five Nigerian children.

The five-judge court's decision rested on the single legal point that there was no "refusal" by the minister, as required by the 1999 Immigration Act, of applications by the children for refugee status. The minister had refused an application made by the mother but had treated that application as made on behalf of the children also.

The court also said the minister was not entitled to use the principle of family unity against children seeking refugee status. The minister had argued that, where he had refused asylum to a parent, he was then entitled to deport their children in pursuit of the principle of family unity.

The court was giving its reserved judgment allowing the children's appeal against a High Court decision dismissing their challenge to the minister's decision of August 2002 to make deportation orders in relation to them. The family arrived in Ireland in 1998 and the children's mother applied almost immediately for asylum and was ultimately refused. No individual applications for asylum were made by the children, then aged 12, eight, six, and four-year-old twins. Having rejected the mother's application, the minister in 2002 made deportation orders in relation to the mother and all five children. In 2003, the children secured leave to bring judicial review proceedings, arguing the minister was not entitled to make deportation orders in their cases as they had not themselves made applications for asylum which had been refused.

They argued that section 3.2 of the Immigration Act, 1999, provides that deportation orders may only be made in relation to persons whose applications for asylum had been "refused". While refusing the children's challenge in the High Court, Mr Justice Michael Peart certified the case involved points of law of exceptional public importance requiring determination by the Supreme Court.

In his judgment, Mr Justice Nial Fennelly said no separate applications for asylum were made by the children with the only application being made by the mother. The minister had a policy of treating such an application as having been made by the family.

The judge said there was no evidence from documents that the minister had treated the children as having applied for asylum. The mother was even told in one letter that arrangements should be made for her children to be looked after outside the department while she attended for interview. The judge stressed he was not convinced of the family's argument that, under the Refugee Act, 1996, only a single person could apply for asylum but he said it was not necessary to reach a conclusion on that issue in this case.

He ruled the minister was not entitled to make deportation orders in pursuit of a policy of family unity. The minister had stated he applied a policy of family unity in accordance with the UNHCR's Handbook on Procedures and Criteria for Determining Refugee Status. The judge said it would be "simply inhuman" to allow a person remain in the State and deport their children. The principle of family unity was central to asylum and immigration practices and policies. If an asylum seeker secured refugee status, the consequence was that their children would also.

The minister's difficulty in this case was that he assumed the converse was true, the judge said. The minister had incorrectly believed that if a decision was made to deport a parent, then their children must also be deported. However, the UNHCR handbook stated that the principle of family unity "operates in favour of dependants and not against them".

Mr Justice Joseph Finnegan said the handbook provided that, where the adult head of a family is refused refugee status, there is nothing to prevent their children from making their own applications for refugee status. The principle of family unity operates for the benefit of the child, not against them, he said.