Analysis: Hundreds of failed asylum-seekers are facing deportation after a High Court decision to roll back the rights accorded to their Irish-born children. Paul Cullen reports
Until now the only thing standing between many failed asylum-seekers and immediate deportation has been the fact that they have a child born in Ireland.
The child might be just days old, but once it was born on the island of Ireland, it was entitled to Irish citizenship. By custom and practice it was also entitled to the company of its parents, who were generally given residence rights.
The Irish-born child became the anchor to which entire families clung when all applications for asylum and appeals had been exhausted. The number claiming residency on this basis climbed steadily, from 1,500 in 1999 to more than 6,000 last year.
Now the High Court has removed this connection, leaving hundreds of asylum-seekers to face the long and unwanted journey back to the countries from which they fled.
Yesterday's decision will almost certainly be appealed to the Supreme Court, but the grounds for such an appeal are limited, and the prospects for success are poor.
Mr Justice Smyth's judgment is a significant boost for the Department of Justice, which has been trying to clamp down on what it sees as an abuse of the asylum system.
The Department believes that many pregnant women asylum-seekers are taking unfair advantage of the fact that Ireland is the only EU member-state that grants citizenship automatically to those born within its borders.
This perception is shared by many of those working in the maternity hospitals. One former master of a Dublin hospital has estimated that 20 per cent of the non-nationals he has seen came to Ireland specifically to have their children because of the citizenship laws. Many arrive late in pregnancy, but some even bring their medical records from Britain, he says.
The obvious thing for the Department to do was to press for a reform of the citizenship laws. But the problem here was that these are set down in the Constitution and were strengthened as recently as 1998, as part of the Belfast Agreement.
Recent experience has shown the dangers of attempting to tamper with the Constitution, even if the Northern parties to the agreement could be prevailed upon to unpick the deal without making fresh demands of their own.
The asylum issue is a political hot potato, as is evident from the recent controversy over remarks made by the Fianna Fáil TD Noel O'Flynn. Indeed, you can judge how hot a potato it is from the fact that all the parties have avoided the issue in their pre-election skirmishes.
So the Department was left with a situation it clearly didn't like, and little it could do about it. After some deliberation, it opted to go the legal route, by trying to reverse the precedent established by the Fajujonu case in 1990.
In this case the Supreme Court allowed two illegal immigrants who were the parents of an Irish-born child to remain in Ireland on the basis that this child had the right to the "care, company and parentage" of its parents within the family unit.
But the Fajujonus had been in Ireland for more than eight years, a period recognised by the Supreme Court as "an appreciable length of time", whereas the Czech and Nigerian families at the centre of yesterday's judgment have been here but a matter of months.
In addition, there was no Dublin Convention when the Fajujonu case was being determined. This agreement was introduced in 1995 to prevent would-be asylum-seekers from shopping around within the EU; states were empowered to return applicants to the first country in which they set foot.
In the present case both the Czech and Nigerian fathers first applied for asylum in the UK, but were refused. In the event of an unsuccessful appeal, they will be returned to Britain, from where it is likely they would be sent home.
The central issue at stake concerned the rights of the family as opposed to the common good of society.
The judges in the Fajujonu case said there would have to be a "grave and substantial reason" associated with the common good in order to justify splitting a family and deporting those members not born in Ireland.
As far as Mr Justice Smyth is concerned, such a reason now exists and it relates to Ireland's international responsibilities to other states (pace the Dublin Convention) and what the Department calls the "integrity" of the asylum system.
Unfortunately, the judge in his ruling left important questions unanswered. How long must a child live in Ireland before its parents can be considered immune from deportation? What happens to the child if the rest of its family is deported? How will its rights as an Irish citizen be protected in exile?
The Department clearly expects that deported families will take their Irish-born children with them. But if they don't, it seems these children might be taken into care, though no details have been spelled out.
No wonder, then, that the Children's Rights Alliance last night called on the Government to explain how it intends to protect the rights of these children.