Wednesday, October 19, 2011

Constitutional challenge to establish right of Irish Citizens to the company of dependant Non EEA parents

We have previously blogged about this case when it was first heard before Mr Justice Hogan in July 2011.Over the last two days, the substantive hearing of the case was heard by Mr Justice Cooke. Submissions are now complete, and we must now await the High Court's decision.

The case concerned an Irish citizen couple who have applied for permission to remain in the State for their non EEA elderly parents, who we say are dependant upon them. 

The legal argument was focused on whether Article 41 of the Constitution, which guarantees the protection of the family as the "natural primary and fundamental unit group of society" , extends to include an adult Irish citizen and their elderly dependant parents. We argued that it does, and where dependency exists between the adult citizen and their parents, Article 41 protects the Irish citizen's right to the company of their parents, in the absence of reasonable and legitimate countervailing grounds which the State may raise. The State's position was that Article 41 offered no protection to our clients whether or not dependency existed, because our clients did not constitute a family unit within the meaning of Article 41. In other words, they argued that as an adult married citizen, one can no longer regard one's parents to be part of the family unit as envisaged by Article 41. A second argument was made that the dependency link in our clients' case was not sufficient to amount to dependency in legal terms.

There is no authority in Irish law to date to establish whether a family comprising of two married couples (i.e. the married Irish citizen and the married non EEA dependant parents) derive protection from Article 41, and if so, whether such protection would require the State to grant the dependant parents permission to reside in the State. Therefore, this case was argued on novel Constitutional grounds, and if successful, could establish a very significant new Constitutional right.

We eagerly await Mr Justice Cooke's judgement, and will post a further update at that time.

Brophy Solicitors


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