The Minister for Justice Charlie Flanagan has revoked a deportation order for a woman whose 9-year-old Irish born son died recently from severe sickle cell disease after a long battle over deportation.
The woman, from Nigeria, will also be permitted move to a direct provision centre closer to the grave of her son, who died last July.
The Department of Justice informed the woman in recent days of the revocation of a deportation order made in 2011, Brian Burns, solicitor for the woman, confirmed to The Irish Times.
The woman had opposed deportation for reasons including her concerns about her son’s health. He had been receiving treatment since he was 4-weeks-old for sickle cell disease, a blood disorder, and she resorted to prostitution for a time to fund his medication.
In opposing deportation, she was fearful it would seriously affect her son’s health due to the quality of treatment available in Nigeria and her inability to pay for it.
She said she evaded deportation for some years after a deportation order was made in 2011 and resorted to prostitution for a time to fund his medication costs. Since 2014, the child had received healthcare funded by the State.
The Supreme Court last March rejected the challenge to deportation on legal grounds but stressed it was open to the Minister to decline to deport on humanitarian grounds.
“There is a difference between what a decision maker must do, and what such a person may do,” Mr Justice Donal O’Donnell said in his judgment.
Humanitarian considerations
“Humanitarian considerations are not the sole preserve of the courts, national or supranational.”
Just months after that decision, the child became very ill and was taken to hospital where he died in July. Mr Burns said the boy had had an “extremely painful life” and it was “very sad he and his mother had to endure so many years of uncertainty in the system”.
The mother and child had appealed to the Supreme Court over the High Court’s finding that they had not raised the necessary substantial grounds to allow them challenge a July 2016 refusal by the Minister to revoke deportation.
The Supreme Court ruled last March the High Court had correctly held substantial grounds were not made out to challenge the refusal.
However, it said a fresh application to revoke could be made based on a late 2016 European Court of Human Rights (ECtHR) decision on criteria for assessing bids to prevent deportations of people with serious medical conditions.
That ECtHR Grand Chamber decision (Paposhvilli) maintains a high threshold for preventing deportation based on Article 3 of the European Convention on Human Rights (ECHR), the right not to be exposed to inhuman and degrading treatment, the Chief Justice, Mr Justice Frank Clarke, and Mr Justice O'Donnell stressed.
The appropriate benchmark is not the level of care existing in the State which orders deportation, it held.
Even if the Minister considered he was not obliged under the Constitution or the ECHR to permit the child remain, he can permit the child remain on “general humanitarian grounds”, the court stressed.
While the appeal must be dismissed, the court said the Minister, if sufficient evidence was put before him now based on Paposhvilli criteria, might be obliged to come to a different conclusion, they added.
