PILA Bulletin: Deportation not incompatible with right to family life

The latest PILA bulletin discusses the recent decision on the case of Sivsivadze v Minister for Justice. The High Court held that the Minister’s power to deport individuals is “not incompatible with rights to family life or marriage enshrined in the Constitution and the European Convention on Human Rights.

The case regarded the sections of the Immigration Act of 1999 that dealt with the Minister’s power to deport individuals. The applicant’s argue that these sections, section 3(1) and 3(11), were “invalid having regard to the provisions of the Constitution.” Expulsion from the state is indefinite, perhaps lifelong, and the applicants argued that such a sentence is disproportionate.

The Judge in the case must be assessed under the proportionality test laid out in the case of Heaney v Ireland. The PILA article states that “the three-pronged test says that restrictions to rights are permitted by the Constitution where such restrictions are (1) rationally connected to the objective and not arbitrary, unfair or based on irrational considerations, (2) they impair the right as little as possible and (3) they are such that their effects on rights are proportional to the objective.” Justice Kearns P held that the sections of the Immigration Act passed the test of proportionality, and that the constitutional test must fail.

Brophy Solicitors

24.08.12

http://www.pila.ie/bulletin/august-2012/22-august-2012/irish-immigration-updates-deportation-not-incompatible-with-right-to-family-life-bullying-of-migrant-children/

http://courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/443e02fda11f041780257a3700377087?OpenDocument

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

19.10.11

PROPOSED REFERENDUM ON CHILDRENS' RIGHTS PLANNED FOR NEW YEAR

The United Nations Convention on the Rights of the Child requires that states act in the best interests of the child. Ireland is a signatory to the Convention and ratified it since 1992. States that ratify it are bound to it by international law. In 2006, the United Nations Committee on the Rights of the Child in Geneva expressed concern that the wording of the Irish Constitution does not allow the state to intervene in cases of abuse, other than in very exceptional cases. Therefore, the Irish Government undertook to amend the Constitution to make a more explicit commitment to children’s rights.

In his recent address to other UN member states in Geneva as part of Ireland’s Universal Periodic Review, Minister Alan Shatter said that the referendum on children’s rights will be held early in the new year. The announcement was welcomed by many groups such as Barnardos, CARI, the Children’s Rights Alliance, The Dublin Rape Crisis Centre, ISPCC, One in Four and the Rape Crisis Network of Ireland. The Irish Council for Civil Liberties said that a more definitive date was needed.

The proposed wording for a referendum on children says the following:

‘In the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child, the welfare and best interests of the child shall be first and paramount consideration.’

The proposed amendment will bring Irish law in line with the current UK position, as confirmed by the recent Court of Human Rights judgement in the case of ZH (Tanzania) (concerning the removal of a non-British parent of a UK citizen child). The Court of Human Rights held that the over-arching issue is the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from the UK. In the words of Lady Hale:

‘In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first.”

The new Constitutional provision may have quiet an impact in the immigration field and the exact wording of the proposal amendment is of much interest to us.  For example, the inclusion of the word ‘upbringing’ gives scope for the argument that children have rights to be brought up in the country of their nationality. This would be a novel right under Irish law, given the current position as set down by the Supreme Court in the case of L and O case  (Lobe v. Minister for Justice, Equality and Law Reform [2003] IESC 3 (23 January 2003). In that case the Supreme Court held that requirements of the common good, including the need to preserve the integrity of the asylum and immigration process, could justify the deportation of a parent of a citizen child and a denial of the child’s right to the care and company of their parents in the State. 

The proposed wording of the new Constitutional provision gives room to argue that the deportation of an Irish citizen child could be deemed unconstitutional if it was not in the best interests of the child’s upbringing. Could it not be argued that in most cases a child would be better off to be brought up in a developed country like Ireland, than many developing countries where standard of life may be of a lesser quality? Could it be argued that the rights of the child extend not only to parents, but other immediate family members, such as siblings?

Certainly, some discussion is necessary on how a balance may be struck between achieving the protection of the rights of children and permitting the State to act within its required duty to protect the Immigration and welfare systems. We believe that the upcoming referendum is a good opportunity to assess these sometimes conflicting rights of the State and individuals. It is an opportunity to create and improve current policy in respect of the rights of children, and their position in society.  We welcome the implementation of children’s rights into the Constitution and the State’s commitment to ensuring that children are protected and a statement by the people of Ireland about the type of society in which we would like to live.

Brophy Solicitors

14.10.11

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[1] ZH (Tanzania)  (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2011] UKSC