The High Court has ruled that a Nigerian mother may bring a legal challenge to a Government decision not to consider her claim for residency on the basis of a scheme abolished in February 2003. Mary Carolan reports.
The decision has implications for thousands of non-nationals seeking to secure Irish residency on the basis of having an Irish-born child.
Ms Justice Finlay Geoghegan held that Ms Jennifer Ojadua Egbrin and her Irish-born one-year- old son had established substantial grounds to challenge the Minister's refusal to consider - on the basis of a scheme which was abolished on February 19th, 2003 - her application for residency on the basis of having an Irish-born child.
Ms Egbrin's residency application was made two weeks before the scheme was abolished, but the Government later announced it would not be considering the outstanding applications made before February 19th, 2003. It is believed there may be more than 10,000 outstanding applications.
When the matter was before Ms Justice Finlay Geoghegan yesterday, she adjourned it to October 20th, when a date for a hearing of the full action will be fixed. The full hearing will take place before Christmas.
Ms Sara Moorhead SC, for the Minister, undertook that Ms Egbrin, who was represented by Mr Conor Power, would not be deported pending the outcome of that hearing.
Ms Egbrin arrived here pregnant in late December 2002 and gave birth on January 9th, 2003. Her application for residency was made in late January 2003 and was acknowledged on February 3rd, 2003.
On February 19th, 2003, the Minister announced he was no longer accepting applications for residency based on the parentage of an Irish-born child. On July 18th, 2003, he announced that the Government had decided it also would not consider (under the scheme which had existed before February 19th 2003) those applications for residency which were outstanding on that date.
Also on July 18th, 2003, a letter was written on behalf of the Minister to Ms Egbrin informing her he was proposing to make a deportation order regarding her.
Ms Egbrin's solicitors wrote to the Department of Justice referring to the scheme for residency based on having an Irish-born child and asking for confirmation that moves would not be made to deport Ms Egbrin but rather that her application for residency be processed.
On August 22nd, the Department wrote to Ms Egbrin's solicitors stating that the residency scheme had been abolished and therefore she would not receive any reply to her application for residency.
The letter also stated that where it was proposed to deport a person who was the parent of an Irish-born child, that person would be given an opportunity to make representations on the deportation. All relevant factors, including the family circumstances of the proposed deportee, would be taken into account.
The letter noted the Minister had a legal obligation to inform a person in writing of his proposal to deport them and to give that person the opportunity to make written representations.
The Minister made a deportation order on March 11th, 2004, which Ms Egbrin received on July 1st. Ms Egbrin then applied for leave to seek judicial review of that challenge.
In her judgment, Ms Justice Finlay Geoghegan said the issues in the case related to whether the actions of the Minister before making the deportation order breached Ms Egbrin's entitlement to fair procedures or compliance with the requirements of natural and constitutional justice.
She ruled that Ms Egbrin had established substantial grounds to support her claim that she had a legitimate expectation to have her application for residency determined in accordance with the administrative scheme which was abolished on February 19th, 2003.