Dos Santos and Others v Minister for Justice and Others

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Respondent/Defendant:Minister for Justice and Equality, Attorney General and Ireland
Citation/s:[2015] IECA 210
Nature of Proceedings:Appeal
Judgment Date/s:30 Jul 2015
Judge:Ryan P., Finlay Geoghegan and Peart JJ.
Category:Deportation
Keywords:Child, Deportation, Deportation Order, Migrant (Illegally resident / staying), Minor
Country of Origin:Brazil
URL:https://www.courts.ie/acc/alfresco/98a68780-969f-4cb6-846a-1f3b248d555d/2015_IECA_210_2.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The appellants were all members of a Brazilian family who arrived in Ireland at various dates between 2002 and 2007. The father had arrived in Ireland lawfully on a work permit in 2002. It expired in 2003. Nevertheless he remained in the State, continued initially to work and paid all appropriate taxes without the relevant immigration permission. His unlawful status was discovered in 2007 and culminated in the making of a deportation order against him in 2012. The mother arrived in the State in 2003 for the purpose of a holiday with her brother who was in the State on a work permit. Their five children arrived in 2006 and 2007, accompanied by their uncle. They all remained in the State unlawfully and, after their existence came to the Minister’s attention, he ultimately made deportation orders in respect of them.

Three grounds arose on the appeal, which focused on the children’s rights. First, it was said that the making of the orders breached a personal right to a private life in the State under Article 40.3 of the Constitution. Secondly, it was said that the Minister was obliged under s. 3 of the Immigration Act 1999, when construed in accordance with Article 3(1) of the UN Convention on the Rights of the Child (UNCRC), to consider and treat as a primary consideration the best interests of the child when deciding whether or not to deport a child. Thirdly, whether the Minister adopted the correct approach in determining whether article 8 of the European Convention on Human Rights (ECHR) was engaged in relation to whether there was a potential interference with the children’s right to private life.

The Court of Appeal dismissed the appellants’ appeal.

Reasoning:
On the first ground, the Court of Appeal upheld the High Court’s decision that the children, as they were not citizens of the State, could not have a personal right within the meaning of Article 40.3 to remain in the State and/or participate in community life in the State. Such rights only arose for non Irish citizens when they were given a right by law or executive decision to live in the State.
Turning to the second ground, the Court of Appeal upheld as correct the High Court’s conclusion that s. 3(6)(a) of the Act of 1999, which obliged the Minister to take account of an applicant’s age when deciding whether or not to make a deportation order against him or her, did not require him, when dealing with a minor applicant, to treat as a primary consideration the best interests of that child or, alternatively, to decide expressly whether deportation would be consistent with its best interests.

The UNCRC, although ratified by the State, had not been implemented by an Act of the Oireachtas and therefore did not form part of the domestic law of the State pursuant to Article 29.6 of the Constitution. That conclusion was reinforced by Article 42A of the Constitution. It required that laws be enacted in respect of a number of decisions to provide that the best interests of the child should be “the paramount consideration” when making them, but the decisions listed did not include the deportation of a child. In making a deportation order, the Minister had, however, to have regard pursuant to s. 3(6) to a number of factors (in particular the family circumstances) which related to the child’s welfare or best interests and, in reaching his decision, to take them into account. The Charter of Fundamental Rights had no applicability to the making of deportation orders either.

Thirdly, it upheld the High Court’s finding that the Minister’s conclusion that the alleged interference with the right to private life under Article 8 did not have consequences of such gravity potentially to engage its operation was reasonable on the facts before him.

Decision:
The Court of Appeal accordingly dismissed the appellants’ appeal.

Principles:

Non citizens of the State do not have a personal right within the meaning of Article 40.3 of the Constitution to remain in the State and/or participate in community life in the State.

The UN Convention on the Rights of the Child is not part of Irish domestic law. Section 3(6)(a) of the Immigration Act 1999, which obliged the Minister for Justice to take account of an applicant’s age when deciding whether or not to make a deportation order against him or her, did not require him, when dealing with a minor applicant, to treat as a primary consideration the best interests of that child or, alternatively, to decide expressly whether deportation would be consistent with its best interests.

The EU’s Charter of Fundamental Rights has no applicability to the making of deportation orders.

The interference caused by deportation of non-settled migrants with the right to respect for their private life under article 8 ECHR does not have consequences of such gravity potentially to engage the article’s operation.

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