The Supreme Court has agreed to hear an appeal by the State concerning a significant High Court judgment which found the word "unborn" in the Constitution means an unborn "child" with rights beyond the right to life.
The State wants clarity on the extent of the constitutional rights of the unborn due to a number of apparently conflicting High Court judgments on that issue.
A hearing to make directions for exchange of legal documents in the appeal will be held next month and it is expected a hearing date will be fixed for some time next year.
The appeal may also be heard by a seven-judge Supreme Court given the importance of the issues raised.
The appeal arises from a July 2016 judgment given in High Court proceedings aimed at preventing the deportation of a Nigerian man on grounds including deportation was in breach of his family rights.
The case was brought by the man, his Irish partner and their now two-year-old child, who was not born when the case was initiated in July 2015.
Those applicants, represented by Michael Conlon SC, instructed by solicitor Brian Burns, of Burns, Kelly, Corrigan Solicitors, previously said they were not objecting to the State's application for a "leapfrog" appeal directly to the Supreme Court, instead of having the matter decided by the Court of Appeal.
The appeal concerns a judgment of Mr Justice Richard Humphreys which, although delivered in an immigration case, is considered to have significance well beyond that arising from the judge's consideration of the rights of the unborn.
Mr Justice Humphreys held “unborn” means an “unborn child” with rights extending beyond the right to life under Article 40.3.3 (the 1981 anti-abortion amendment of the Constitution).
He also interpreted Article 42A of the Constitution, inserted as a result of the 2012 Children’s Referendum, as affording protections to all children “both before and after birth”.
Article 42A provides that “the State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights”.
‘Significant’ rights
The unborn child, including of a parent facing deportation, enjoys “significant” rights and legal position at common law, by statute, and under the Constitution, “going well beyond the right to life alone”, the judge held. Many of those rights are “actually effective” rather than merely prospective, he said.
While neither Article 42a nor Article 40.3.3 were intended to confer immigration rights, that did not displace any legal consequences flowing from the prospective position of an unborn child with a parent facing deportation, he said.
Granting leave for judicial review, the judge said that, when considering whether or not to revoke the 2008 deportation order made against the man, the Minister must consider the right to life of the unborn, plus the legal rights the child will acquire on birth, insofar as those were relevant to deportation.
The Minister must consider the constitutional, statutory and EU rights – along with those under the European Convention on Human Rights (ECHR) – of the man, his partner and the child, including their family rights under Article 8 of the ECHR, he ruled. His findings did not mean a person in the man’s position – unlawfully in the State since 2007 – was automatically entitled to remain here, he added.
