A heavily pregnant Nigerian woman got a High Court injunction preventing her deportation just days before she was due to give birth to a child who would have Irish/EU citizenship, it has emerged.
The injunction continues to restrain deportation pending the determination of an application to the Minister for Justice for revocation of deportation arising from the fact the woman’s baby would have Irish and EU citizenship.
Mr Justice Richard Humphreys declared the Minister is obliged to consider, among other things, the prospective EU law position of the woman [as mother of an EU citizen child].
About ten days after the orders were granted last month, a baby girl was born to the woman, aged in her twenties, and her partner, who got Irish citizenship in 2007.
Lawyers for the Minister for Justice and State had opposed the injunction in what the judge described as an “all guns blazing” manner.
In his written judgment, published in recent days, Mr Justice Humphreys said he was granting the injunction in the context of the prospective position of the woman after the birth of her Irish/EU citizen child.
The matter was being decided in relation to the rights of the mother to fairness of procedure, he said.
She had a right to have consideration given to “all relevant matters” and to a decision “that does not breach the principle of proportionality”.
The focus of this case is the rights of the mother and it was not about the rights of the unborn child who was not a party to it, he stressed.
False claim
He noted the woman came here in September 2016 falsely claiming to be an unaccompanied minor.
A month later, she disclosed she was aged 21 and her aunt is an Irish citizen.
She was refused international protection and leave to remain and notified in December 2018 a deportation order had been made.
In early 2019, she applied for revocation of deportation on grounds she had become pregnant by a man who came here in 2002. He got leave to remain in 2004 and Irish citizenship in 2007. He married on an unknown date and had instructed he has four children but had separated from his wife who now lives in the UK with their children.
The revocation application has yet to be determined but, after the State refused to undertake not to deport the woman, the couple, represented by Michael Conlon SC, with Paul O’Shea, instructed by solicitor Brian Burns, secured interim injunctions last January restraining her deportation.
The injunctions continued pending a full hearing of their proceedings aimed at preventing deportation due to her pregnancy.
On September 4th, Mr Justice Humphreys gave an ex tempore ruling preventing deportation on condition the couple’s lawyers filed, within a month, an application arising from the Zambrano ruling of the European Court of Justice (concerning the position of non-EU parents of EU citizen children) to the Department of Justice.
Child would have right to come back
In his written judgment, Mr Justice Humphreys said, while the State had argued the woman does not have EU law rights because she is a non-EU citizen, the Minister must consider her prospective legal position derivative on the rights of the person who was, at the time of the revocation application, shortly to be born.
The Minister is obliged to consider the prospective position of the woman under EU law, he said.
Addressing arguments by the couple that deportation so close to the due date would be contrary to human dignity, the judge said any declaration to that effect would require evidence about risk to her dignity and medical condition but there was no such evidence.
The State was “not particularly enthused” about deporting the woman so close to birth and he had the “distinct impression” that would not happen, he added.
Even if the woman was deported, the child would have a right to come back as an Irish citizen and that would likely require, as a result of the Zambrano decision, the mother’s re-admission to the State, he noted.
