In IRM (No.2) the High Court considered the obligation on the Minister to consider the rights of an unborn child when deciding whether to revoke a deportation order in respect of the father of the child. The applicant was a Nigerian citizen who was refused asylum; a deportation order was subsequently issued but he remained unlawfully in the State. He subsequently formed a relationship with an Irish citizen who became pregnant in late 2014. In May 2015 they applied to the Minister to revoke the deportation order in order to allow the applicant remain in the State for the birth of his child. The applicants subsequently instituted judicial review proceedings seeking inter alia an injunction to restrain the deportation of the applicant. The key issue that arose in the proceedings was whether, when the Minister was considering a revocation application prior to the birth of a child, the consideration was limited to the right to life of the unborn child or whether there was also an obligation to consider the substantive prospective family rights as between all of the applicants that would arise on the birth of the child.
Humphreys J. commenced by summarising the matters which the Minister must consider in the context of a s.3(11) application, namely:
(i) any representations by the applicant; and
(ii) any change of circumstances since the original decision which engages a legal provision which would have the effect of rendering the deportation unlawful by reason of an actual or prospective breach of rights. Such unlawfulness could arise under one of the following headings:
(a) a change in the legal status of the person so as to deprive the Minister of jurisdiction to effect deportation (for example, the acquisition of EU citizenship or other EU rights);
(b) an actual or prospective threat to the life of freedom of the person, either on Convention grounds under s. 5 of the Refugee Act 1996 or in a manner that would infringe arts. 2 or 5 of the ECHR;
(c) an actual or prospective risk of torture or inhuman or degrading treatment under to s. 4 of the Criminal Justice (United Nations Convention Against Torture) Act 2000 and arts. 2 and 3 of the ECHR;
(d) any other actual or prospective breach of the rights (whether legal, constitutional, EU or ECHR) of the applicant or another person that would arise if the deportation was effected.
Humphreys J. noted that there was no reason in logic, consistency or principle as to why an analysis of any other threat to the rights of an applicant should not also be forward-looking.In particular, it was held that there was no reason to hold that forward looking threats to the prospective position of the applicant such as those of persecution, torture or inhuman or degrading treatment must be considered but this doctrine does not apply to the prospective position of the unborn, and the unborn alone.
The court clarified that there is no constitutional right to have one’s partner present in the State for a birth if the partner has no legal entitlement to be present in the State at all, and while it was accepted that deportation of a partner in the final days of pregnancy might raise humanitarian considerations, that was a matter for the Minister and not the court. However, the court held that the Minister had erred in law in the consideration of the revocation application that the only right arising in respect of the unborn child was the right to be born. Humphreys J. considered a number of different contexts in respect of which an unborn child has rights beyond the right to be born, such as succession, property and health and welfare, before concluding that “organs of the State must take rights seriously and address the reality and substance of the human situation of both citizens and other persons within the State.” Humphreys J. held that for the Minister to decline to consider the wider rights of the unborn child was to deliberately shut her eyes to reality and to future situations which were likely to exist and therefore should properly be considered as a matter of rationality. Accordingly, Humphreys J. held that when the Minister is presented with an application based on the prospective parentage of an Irish child who is unborn at the date of the making of the application, the Minister must address the application on the basis that appropriate consideration should be given to the rights which that child will probably enjoy into the future in the event of being born, insofar as such prospective rights are relevant to the deportation issue. This decision is under appeal.
Court granted a declaration that the Minister, in considering an application to revoke a deportation order under s. 3(11) of the Immigration Act 1999, is required to consider the current and prospective situation of the applicant concerned insofar as relevant to that application, including the prospective position, likely to arise on birth, of any child of the applicant unborn at the time of the application.