The Ojo case judgment highlights the issue of constitutional rights, writes Carol Coulter
Ms Bola Ojo and her two children have, for the moment, won the right to remain in Ireland. Her case, and all submissions by her lawyers, must now be given "full and proper consideration" by the Minister in taking a decision on whether she should be allowed to stay here as the mother of an Irish-born child.
Two cases were argued by her lawyers: that her detention was unlawful under Article 40 of the Constitution (habeas corpus proceedings); and that the decision of the Minister for Justice on February 6th to refuse her application for residency was illegal. Ms Justice Finlay Geoghegan found in their favour on both issues.
The chronology of events was central to the case. Ms Ojo had failed in an initial application for asylum, though in 2001 the Refugee Appeals Commissioner did find that there was a well-founded fear for her husband's life from criminals in Nigeria, but that this did not meet the criteria of the Geneva Convention. She became pregnant in February 2002, and her son was born on December 15th, 2002. She then applied for residency as the mother of an Irish-born child. This application was acknowledged, with a note that the backlog was such that she was unlikely to get a decision for at least a year.
However, she was arrested on January 27th, four days after the Supreme Court judgment rejecting automatic residency for the parents of Irish-born children, and held in Mountjoy with her baby.
Her lawyers argued that Ms Ojo could only be legally detained if there was an immediate intention to deport her, and this could not exist as her residency application had not been decided upon. On February 5th the court made a conditional order for her release. On February 6th, the day the final decision on the habeas corpus application was due, a letter from the Department of Justice was served on Ms Ojo rejecting her application for residency.
The court found that her detention on January 27th was unconstitutional because the Minister had made no decision on her residency application. The previous deportation order could not be enacted without consideration of the new circumstances, so there was no legal basis for her detention.
The judge paid a lot of attention to the manner in which the Minister's decision to refuse residency had been made. She said the Minister had clearly considered a February 5th submission from Mr Charles O'Connell, assistant principal in the immigration division of the department.
This submission said that there were habeas corpus proceedings in train, and "the successful defence or otherwise of the habeas corpus proceedings may rely to an extent on the Minister affirming or revoking the original deportation orders in light of the new information concerning Ms Ojo's Irish-born child".
Mr O'Connell sought to explain this submission to the court as arising out of concern about the detention of Ms Ojo.
The judge commented: "I do not accept that evidence as stating the full position. There is an inescapable conclusion to be drawn from the content of the submission of Mr O'Connell ... that what triggered the submission was the conditional order made by this court at approximately 4.30 p.m. on 5th February."
While not concluding that the Minister was influenced by the habeas corpus application in making his decision, the judge said that the timing and context were important.
Specifically, they meant that, given that the court's decision was only days old, Ms Ojo's lawyers had no opportunity to prepare her case in the light of that judgment.
Further, the Minister had stated in the press that he would be considering the implications of this judgment carefully before deciding on general policy, which had not happened. Thus she was denied fair procedures and constitutional justice.
The judgment in no way "opens the floodgates" for non-Irish parents of Irish-born children acquiring residency rights. But it does signal grave judicial disapproval of decisions by the Minister, or by the immigration division of the Department of Justice, that do not accord with fair procedures and constitutional justice.