AN ELDERLY and ill South African couple have secured High Court permission to challenge a decision refusing them residency rights after their Irish citizen daughter and her husband offered to allow them live here with them.
Mr Justice Gerard Hogan said the refusal of the Minister for Justice to grant permission to Leon (72) and Margaret (68) Lemiere to reside here represented a disproportionate response to the constitutional family rights of their daughter, Desiree O’Leary.
The judge granted the couple, their daughter and son-in-law permission to bring judicial review proceedings challenging that decision.
At the heart of the case was the extent to which the relationship between adult parents and an adult child is protected by Article 41 of the Constitution which guarantees to protect the family, the judge said. This had implications for the State’s immigration policy.
Providing support for parents in advancing years is one dimension of Article 41.1.1, which describes the family as “a moral institution” possessing inalienable and imprescriptible rights, the judge said.
While laws have been provided to deal with support for spouses and young children, providing support for elderly parents is also a dimension of the moral nature of the family as an institution, the judge said.
“A decision by an adult child to provide emotional and financial support for parents in advancing years by inviting them to live with her and her husband clearly, in principle, engages Article 41 rights,” the judge said.
Ms O’Leary, a UCD lecturer, and her engineer husband, Diarmuid, were to be praised for their dedication to the welfare of the Lemieres rather than be subject to suspicion and criticism, the judge said.
Measured by the values to which society had committed itself in Article 41, the O’Learys should not be placed at a disadvantage “simply because they believe more than most of us do in the precepts of the Fourth Commandment” (to honour one’s father and mother), he said.
The O’Learys wanted the elderly couple to stay with them after both became ill and housebound following their discharge from hospital in South Africa in 2008.
The Lemieres lived in the Kwa Zulu Natal suburb of Durban and security was a constant and daily problem as, despite having elaborate security precautions, their home was a frequent target for burglars.
Mr Justice Hogan noted the O’Learys supplemented the pension the elderly couple lived on in South Africa because, even taking into account the cheaper cost of living there, that amounted to well below what someone on the minimum wage would earn here.
The Lemieres had to pay more than half their monthly income on medical insurance. After both were hospitalised in July 2008, it was “scarcely a surprise” the O’Learys decided it was best they come and stay with them in Ireland, the judge said.
There was simply no procedure whereby the Lemieres could have applied for residency in advance, he said.
They eventually obtained temporary permissions to stay, with the last permission running up to July 31st, 2010, on condition they did not have recourse to public funds or State benefits and services.
The judge said the Minister’s decision refusing them permission to stay frustrated the O’Learys’ decision to look after the Lemieres. The Minister was entitled to insist the Lemieres would not seek to draw on Irish public funds but in that regard they had obtained Voluntary Health Insurance cover.
The judge was also critical of a memorandum issued in July 2010 by a senior civil servant in the department refusing them permission to stay. In the memo, it was stated the Lemieres had attempted to circumvent the immigration system to their own ends and had been disingenuous in their dealings with the Department.
The judge said he could see no possible justification for such comments “which some might consider ill-judged”.