Friday, June 28, 2013


Mr Justice Colm Mac Eochaidh recently granted an interlocutory injunction restraining the deportation of a Brazilian family in the case of Odenis Rodrigues Dos Santos & Ors v Minister for Justice and Equality. He also granted leave to seek judicial review. The judgment was handed down on the 30th of May and gave consideration to international and domestic law. 

The case concerned a family who have been living in Roscommon Town. Mr Dos Santos arrived in Ireland in 2002 and his wife and children joined him in 2006 and 2007. Since then the children have attended school in Ireland and settled into Irish society. In March 2012, the Minister for Justice issued deportation orders in respect of the family.

The applicants submitted that the Minister didn’t find the correct balance in issuing the order because he focussed too heavily on their immigrant status instead of looking at the extent to which they had assimilated into Irish society and the amount of time that they had spent in the country. They claimed that the Minister’s actions showed disregard for the UN Convention on the Rights of the Child. The argument was also made that s3 of the Immigration Act 1999 is unconstitutional because of the fact that a deportation order is effectively a lifelong ban from entering Europe. 

Representatives of the Minister for Justice responded by arguing that the applicants were non-nationals who were illegally in the state and therefore should be deported. They also submitted that there was no allegation of threat of serious harm to the applicants if they were returned to Brazil and therefore there was no reason for the court to restrain the deportation. 

In coming to the conclusion that the applicants’ deportation should not take place before a full hearing of matters, Mr Justice Mac Eochaidh looked at the manner in which the Minister and his officials considered the circumstances of the child applicants. He said that the test to be applied was whether the order would interfere with the applicant’s right to private and family life, and if it did, that the interference had to be proportionate to the requirements of a democratic society. This test was created in the English case of R (Razgar) v Home Secretary in 2004. Discussing the application of this test, the judge referred to other decisions of the court which looked at the impact of deportation orders on children. He said that there was strong precedent from the cases of Oguekwe v Minister for Justice and E & Anor v Minister for Justice that the Minister had to take consideration of the best interests of the child in coming to the conclusion to make a deportation order. He noted that the Minister had to consider all matters put before him by the parties but was not obliged to make enquiries outside of the documents submitted to him. 

The judge discussed the impact of the UN Convention on the Rights of the Child, which has been ratified by Ireland but not implemented into Irish law. He came to the tentative conclusion that the Convention was applicable in situations where there was no conflicting principle of domestic law. He held that because there was no conflicting principle of law in the Immigration Act 1999, that the Convention was applicable in immigration cases. Article 3 of the Convention provides that decisions affecting children shall be taken by reference to the best interests of the child. In view of the number of children and the age range and the varying impacts deportation might have on them Mr Justice Mac Eochaidh came to the conclusion that the deportation should be restrained. 

The judge did not draw any conclusions about the constitutionality of s3 of the Immigration Act 1999.

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