The Minister for Justice was not required to and did not consider the rights of Irish-born children when dealing with applications by their non-national parents to remain here, counsel for the Minister has argued before the Supreme Court.
Brian O'Moore SC, for the Minister, said that when the Irish Born Child scheme (IBC05) was introduced in 2005, it was never intended to consider the entitlements of the child but rather to decide if their foreign parents were entitled to remain here.
The rights of the child were not considered by the Minister and it was never intended they would be, Mr O'Moore said. If the court found there was a constitutional obligation to consider those rights, which was denied by the Minister, then it was admitted those rights were not considered.
The citizen child was "not central" to the scheme and the High Court was wrong to find they were. The central issue was whether their non-national parents qualified for inclusion in the scheme.
In those circumstances, he argued the High Court was wrong to find the Minister's failure to consider the entitlements of the child was unlawful. The High Court had erred in upholding, based on that and other findings, several test challenges to the manner in which the Minister had refused applications under the scheme to remain here, he submitted.
Mr O'Moore was opening the appeal by the Minister and the State against a High Court decision last November in which Ms Justice Mary Finlay Geoghegan found the Minister had unlawfully breached the rights of several Irish-born children in the way he refused their non-national parents' applications to remain here.
The decision relates only to non-national parents of children born before January 1st, 2005, but the outcome of the appeal will have implications for hundreds of cases.
The appeal is being heard by a five-judge court, presided over by the Chief Justice, Mr Justice John Murray. The Attorney General is a notice party to the case and the Human Rights Commission is also involved in the role of amicus curiae (assistant to the court on legal issues).
The appeal relates to separate judgments by Ms Justice Finlay Geoghegan on eight test cases, seven of which she upheld.
She found that the Minister's refusal of the parents' applications to remain without any consideration of the rights, including welfare, of their Irish citizen children was unlawful as it breached the rights of their Irish citizen children guaranteed under the Constitution. She also found that taking the same decisions without considering the private rights of the Irish citizen children - in the sense of personal and social relationships which result from living here - was unlawful as it was inconsistent with the State's obligations under the European Convention on Human Rights Act 2003.
An estimated 1,120 people have had applications refused under the IBC05 scheme. The scheme was a revised arrangement for processing claims to remain here on the basis of having a child born here before January 1st, 2005, when citizenship arrangements were altered. The scheme was introduced by the Minister in early 2005 and, up to January 2006, some 16,693 people were permitted leave to remain here under it. Of those refused, most were on grounds that continuous residency here since the birth of the applicant's Irish-born child was not proven.
In submissions yesterday, Mr O'Moore said the High Court was wrong in finding there was nothing in the relevant documents relating to IBC05 which implied that the revised scheme did not apply to a person who was not continuously resident here with their Irish-born child since the date of birth.
It was made clear in public announcements by the Minister, in press advertisements and by the person with responsibility for administration of the scheme that applicants had to be continuously resident here and should also have no criminal convictions, he said.
The appeal continues today.
