Right to seek residency stressed

The Irish Human Rights Commission has told the Supreme Court that immigrants have a "freestanding" right to apply at any time to the Minister for Justice to have their residency status regularised.

Such a right applies to all immigrants, not just those who have Irish-born children, Gerard Hogan SC, for the commission, said.

The State has an inherent power to regularise and control immigration, including the right of residency, and it was "absolutely clear" the Minister was entitled to set up a statutory scheme, counsel added.

Mr Hogan said the "critical point" for the Supreme Court to address is the nature of the consequences for those who did not come within the terms of the Irish-Born Child scheme of 2005.

There was nothing in the Immigration Act 1999 which addressed the legal entitlements of persons who fell outside the scheme but successfully challenged deportation orders, he said.

If there was no freestanding right for such persons to apply to the Minister to have their situation regularised, that, in the commission's view, was a breach of the State's obligations under the Constitution and the European Convention on Human Rights, Mr Hogan said.

Where the right of residency was not regulated by law, there was a freestanding right to apply to the Minister to have residency status clarified and it would be unlawful for the Minister to refuse to consider such applications, he said.

Mr Hogan was making submissions on legal points in the appeal by the Minister for Justice and the State against a High Court decision last November that the Minister had unlawfully breached the rights of several Irish-born children in the manner in which he refused their foreign national parents' applications to remain here under the Irish-Born Child scheme of 2005.

The commission attended the appeal in the role of amicus curiae (assistant to the court on legal issues).

The three-day appeal concluded yesterday and judgment was reserved.

The Irish-Born Child scheme was a revised arrangement for processing claims to remain here on the basis of having a child born here before January 1st, 2005, when citizenship arrangements were altered.

In his closing reply yesterday, Brian O'Moore SC, for the Minister, said a number of issues arose from Mr Hogan's submissions, including how often a residency application might be made.

One person who had sought residency on the basis of having an Irish-born child had made her application from Nigeria and had then returned here and the Minister was at present injuncted from deporting her, counsel said.

Where there was a freestanding application for residency by the foreign national parents of an Irish-born child, there was no obligation on the Minister to consider the rights to respect private and family life under Article 8 of the European Convention on Human Rights, he submitted.

It is only when there is a proposal to deport the family of an Irish-born child that the rights to respect for private and family life come into play, he said.