In a judgment with major implications for many asylum-seekers, the High Court has ruled that the non-national parents of Irish-born children are not entitled to remain in the State by virtue of having an Irish citizen within the family.
Having made that finding yesterday, Mr Justice Smyth upheld a decision by the Justice Minister to order the deportation of a Czech couple, their three non-national children (they have a fourth born here) and a Nigerian man.
He granted a stay on the deportations until Friday when he will hear an application for leave to appeal to the Supreme Court.
Before an appeal may be taken, the judge has to certify it involves a point of law of exceptional public importance which should be determined in the public interest.
Mr Bill Shipsey SC, for the Czech couple and Nigerian man, said he had instructions to bring an appeal but wanted some time to consider the lengthy and detailed hand-written judgment. Mr Hugh Mohan SC, for the State, said he was not objecting to certification.
The focus of the cases was whether a child born in the State to non-national parents is entitled to have, within the State, the care, company and parentage of its parents. The cases also raised issues relating to the Dublin Convention, a treaty between the governments of the EU states under which applications for asylum are required to be considered by the first country the applicant enters.
The Czech couple have a son, Kevin, who was born here last November, while the Nigerian man has two children, one of whom, a boy, was born in Ireland last October. The couple and the man have both made a choice of residency here on behalf of their Irish-born children.
The Czech couple are Mr David Lobe and Ms Jana Loveova, and the Nigerian is Mr Andrew Osayande, whose son, Osaze Joshua, was born on October 4th last year.
The Czech family arrived in Ireland in March 2001, having earlier applied for asylum in the UK but been refused. Orders for their deportation to the UK, which had agreed under the Dublin Convention to deal with their applications, were made by the Minister in September 2001.
The Nigerian man, his wife and daughter arrived here in May 2001. He also applied unsuccessfully in the UK for asylum. An order for his deportation to the UK was made in September 2001. Applications for asylum made by his wife and daughter have yet to be finally determined.
In his judgment yesterday, Mr Justice Smyth said the cases involved consideration of the rights of an Irish-born child as an individual and member of a family unit, of families containing Irish citizens and non-nationals and of the duties and responsibility of the Minister for Justice in relation to the common good and preserving the integrity of the asylum and immigration systems.
In its 1989 decision on the Fajajonu case, the Supreme Court had said that where non-nationals had lived here for an "appreciable time" with their Irish-born children, those children had a right to the society of their parents within a family unit, which right those children were entitled to exercise within the State. That right might be contravened only for grave and substantial reasons associated with the common good.
In his judgment in the Supreme Court decision on Fajajonu, the late Mr Justice Walsh had said the reasons for breaking up a mixed family of non-nationals and Irish citizens had to be "predominant and overwhelming".
Mr Justice Smyth noted that the Fajajonu family had been in Ireland eight years when that Supreme Court decision was made, while the applicants in the present cases had arrived here last year. While the rights of an Irish-born child were not dependent on how long their parents were here, this was a factor that could and perhaps should be considered by the courts when considering whether the deportation orders should be given effect to. The age of the child and adaptability were also relevant considerations.
The judge found the Minister had taken into account the most up-to-date information and the constitutional rights of Irish-born children, and the family had been "carefully considered and not brushed aside". He was satisfied the reasons for making the deportation orders were grave and substantial reasons associated with the common good.
The Attorney General's office last night welcomed the outcome, saying "it accords with our understanding of the law. The State will vigorously defend any potential appeal to the Supreme Court."
