Facts: A.Z. was an Albanian national who arrived to Ireland irregularly in 1995 and worked without a work permit for a number of years using an alias. He met M.Z., an Irish citizen, in 2005, and they had a child, C.Z., in 2007. A.Z. is the primary caregiver for his son, C.Z., who has a number of additional needs relating to his hearing loss and his autism diagnosis. The family have lived together continuously, with the exception of a three-year period when A.Z. was imprisoned following a conviction for shooting a colleague. A.Z. and M.Z. married not long after the shooting incident. While charges were pending in the case, A.Z. applied for and was granted permission to remain on the basis of his parentage of an Irish child.
Following his release from prison, and the lapsing of his residence permission, A.Z. was issued with a deportation order. The applicant appealed this. Following various decisions and interactions with the applicant, in 2021, the Minister refused to revoke the deportation order. It was held that the deportation would not result in a breach of rights under Articles 40, 41 and 42 of the Constitution, Article 8 of the ECHR or Article 7 of the Charter, for the family, including, the child, C.Z.
The applicants sought judicial review in the High Court. The trial judge quashed the decision to refuse to revoke the deportation order. It was held that the child’s individual rights should have been identified and weighed as separate from the rights of the family and this flowed from Article 42A of the Constitution. It was held that there is an onus on every decision-maker to afford primary weight to the best interests of the child when conducting a proportionality assessment. The absence of any acknowledgment of the greater weight to be afforded to the child’s interests.
The Minister challenged this ruling on appeal in the Supreme Court.
Reasoning: In the Supreme Court, Woulfe J accepted that the applicants had not explicitly referenced Article 42A in their submissions, however, the issue of the child’s rights and his best interests were clearly a live issue in the case. It was held that the Minister should therefore have considered them in the decision. Woulfe J recalled the general applicability of Article 42A.1 with the effect that the Minister must take into account a child’s welfare considerations and any special circumstances arising in making a deportation decision that may seriously affect a child.
The Minister had contended that the trial judge incorrectly applied Article 42A.4. This Article requires the State to make provisions for legislation in specific cases where the rights of the child are paramount. The Minister argued that this was not applicable to the instant case. Woulfe J. held that the trial judge was correct to refer to Article 42A.4. Although it does not apply to issues outside of the specific scope of the provision, its value structure should indirectly inform the interpretation of Article 42A.1.
With regard to the best interests of the child, Woulfe J with reference to Oguekwe v Minister for Justice, Equality and Law Reform [2008] IESC 25, held that the best interests of the child should be a ‘primary’ consideration as opposed to a ‘paramount’ consideration in the context of deportation orders. The former framing recognises that there are a number of important considerations that the Minister must weigh in arriving at a decision on deportation.
In a separate opinion, Collins J. agreed with Justice Woulfe’s consideration of the case, including that where deportation potentially affects a child, their best interests must be regarded as a primary consideration. Collins J. also agreed that Article 42A was necessary to the case despite not being raised by the applicants, but refuted the suggestion that Article 42A imposes an autonomous duty on the court to have regard to its provisions, independent of the parties’ submissions.
Collins J agreed that there is no principal rule that a child’s best interests should dictate the outcome of a deportation order. In this case, there was evidence that the applicants are a close knit family and A.Z. plays an important role in his son’s life. It was held that the impact of deportation on the family and particularly on the child, C.Z. was not adequately given meaningful engagement by the Minister.
Decision: The Supreme Court upheld the decision of the High Court and the appeal was dismissed.
