The High Court has decided that the Nigerian mother of an Irish-born child has "substantial grounds" to seek a declaration from the courts that deportation regulations made under the Immigration Act, 1999, are void.
Mr Justice Peart, in a reserved judgment yesterday, said that he was satisfied that the woman had raised "some weighty and arguable issues" and gave leave to pursue a judicial review of a decision of the Minister for Justice, Equality and Law Reform to make an order deporting her.
The 34-year-old mother arrived in the State on May 16th, 2003, claimed asylum and 12 days later gave birth to a daughter.
Mr Mel Christle SC, for the mother, said she had parental responsibilities which necessitated her presence in the State with her child, who had a constitutional right to be with her mother here.
The Minister could ignore that right by deporting the mother only if, after due and proper consideration, the Minister was satisfied that was in the interests of the common good and the protection of society and the State.
The sole reason given for notification of deportation was that the Minister was satisfied that the interests of public policy and the common good in maintaining the integrity of the asylum and immigration systems outweighed such features of her case as might tend to support her being granted leave to remain in the State.
The woman had argued that no mention had been made of the rights of her child, and no reason or evidential basis was provided as to why the stated policy should outweigh the interests of her daughter in residing and growing up in the country of her citizenship.
She claimed her child was being discriminated against solely on the basis of her parentage, race and/or ethnic origin and that there was no objective reason to justify such discrimination.
Mr Christle had referred to Article 8 of the European Convention on Human Rights Act, 2003, which provided that everyone had the right to respect for their private and family life, home and correspondence.
Counsel for the Minister argued that the Minister had acted properly and considered material before him.
The Minister was entitled for the purposes of Article 8 of the Convention to justify his decision to deport on the basis of upholding the integrity of the immigration system without going into further detail as to exactly why it was necessary to deport the mother in furtherance of that object.
Mr Justice Peart decided the mother had sufficient grounds to argue there was a failure on the part of the Minister to set out any consideration of the principle of proportionality.
He also allowed her leave to seek an order quashing the deportation order and to seek a declaration that the 1999 Immigration Act and deportation regulations were ultra vires and void.