Facts:
Ms KRA, the first named applicant, was born in Nigeria in 1975. She married there and had three children. In early 2008, she came alone to Ireland while pregnant and sought asylum. Her baby, the second named applicant, BMA, was born four days later on 14 March 2008. The asylum application was rejected and in March 2009, Ms KRA was notified by the Minister of an intention to make deportation orders. Solicitors on her behalf applied for subsidiary protection, but on 9 November 2009, that also was rejected.
On 18 November 2009, the Minister made deportation orders in respect of both applicants and Ms KRA was required to present herself to the Garda National Immigration Bureau on 8 December 2009. She did not do so, but instead went into hiding from the authorities and remained underground for almost five years. Ultimately, she went to solicitors and through them, on 23 October 2014, she made an application for revocation of the deportation orders pursuant to s.3(11) of the Immigration Act 1999. On 18 May 2015, the Minister refused to revoke the deportation order. On 3 June 2015, the High Court (Faherty J.) granted leave to the applicants to bring judicial review proceedings in respect of the refusal. Prior to the Minister’s refusal to revoke, Article 42A of the Constitution came into force, para.1 of which provides:
“The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.”
The essential case made on behalf of KRA and BMA was, first, that Article 42A.1 conferred on BMA constitutional rights, inter alia, to education which fell to be put into the balance against the interests of the State. It was submitted that her right to free primary education was a natural and imprescriptible right under this Article which could not be defeated otherwise than by a careful balancing against the legitimate interests of the State.
Secondly, it was argued that the decision under challenge required a separate consideration of the individual position of BMA in circumstances where she was born in the State, was attending primary education, had never resided in the country to which she was to be deported and there was evidence that her education would be impaired if she were deported.
Thirdly, it was contended that the conclusion by the Minister that there was a functioning education system in Nigeria was irrational.
On 12 May 2016 ([2016] IEHC 289) Humphreys J. rejected the challenge to the Minister’s refusal to revoke the deportation order. Humphreys J. held that the refusal to revoke the deportation order was not invalidated by a failure to consider properly the child’s constitutional right to free primary education pursuant to Art.42A. It was held that the right existed independent of that article which imposed no new obligations on the Minister in respect of immigration control and which made no significant difference to issues of deportation. Humphreys J. accepted that the obligation to protect the natural and imprescriptible rights of all children applies to immigration decisions, and that the right to education was one of such rights to be enjoyed by citizens and non-citizens alike. However, it was held that an entitlement to an education did not create an entitlement to remain in the State if the person was here unlawfully; nor did the fact that the destination country had an inferior education system prevent deportation. Furthermore, Humphreys J. was satisfied that there was no logical reason why the child’s case had to be given separate consideration from her mother.
The court found that s.3(11) did not give an applicant the right to reopen the whole deportation process afresh so that the whole case had to be reconsidered. This applied particularly with regard to the claims to education because that case was available to the applicants when they responded to the Minister’s notification of intention to make a deportation order pursuant to s.3 of the Immigration Act 1999. Humphreys J. noted that the provision for application to the Minister for revocation gave a person whose deportation had been ordered an opportunity to present to the Minister facts, circumstances and reasons why the order should not now be implemented. The judge said that there was “a limitation on the use of s. 3 (11) in that it is confined to new circumstances, albeit that this test can be read broadly to include new legal circumstances”. Otherwise, all deportation orders would be “up for permanent renegotiation” and the time limits would be inoperative. Accordingly, the court held that the applicants were not entitled to litigate an issue, namely, the right to primary education, which they could have raised at the deportation order stage. It was noted that a comparison of the adequacy of Irish and Nigerian education systems was available to the appellants in 2009. The fact that BMA would commence education was foreseeable and could have been litigated then. This was not a new point and in the absence of any significant difference in the legal position of the child as result of the enactment of Art.42A there was nothing new in the claim that deportation would interfere with her education. The court also rejected the claim based on irrationality. The applicants appealed.
Reasoning:
Ryan P. delivered the primary judgment of the Court of Appeal (Irvine J. concurred but delivered a separate decision on the refusal of injunctive relief). Ryan P. held that in circumstances where there was a specific constitutional right dealing with the child’s entitlement or the entitlement of children generally, it was not a reasonable inference that this general provision of protection of rights should be considered to have altered the existing obligations of the State. But even if Art.42A did impose some extra obligation, the question arose as to the nature of the obligation. Ryan P. noted that it might be argued that Art.42.4 was limited to citizen children or to children lawfully present in the State. If that were the case, an argument could be made under Art.42A that it would be unlawful to continue the exclusion of children not lawfully present. Ryan P. queried how Art.42A could be construed as giving entitlement to a child to live in the State simply for the purpose of education when he or she was not otherwise permitted to be here. Ryan P concluded on this issue (at para.33):
“The real question is not whether the second applicant is entitled to free primary education in the State while she is living here, but whether she is entitled to live here in order to avail herself of free primary education. The answer is that she is not.”
Accordingly, Ryan P. held that the trial judge was correct to hold that Art.42A did not amount to a bar to the deportation of a child who was undergoing primary education in the State. While BMA was undoubtedly entitled to avail herself of the right to education while living in the State, that did not mean that she had a right to live in the State in order to avail herself of education. Ryan P. agreed with Humphreys J. that the educational rights in the State of the child could not represent a barrier to deportation, otherwise the State’s immigration policy would be impossible to implement.
On the requirement of an individual consideration of the child, separate from her mother, in the deportation process, Ryan P. was satisfied that the circumstances of the mother and child in this case did not require separate and individual consideration by the Minister. While it was accepted that there may be circumstances which would necessitate individual assessment, such as in the case of a citizen child who because of citizenship has a prima facie right to live in the State, there was no general rule that any consideration of such a case as the present, involving a mother and young daughter, necessarily required individual assessment. Insofar as the decision of Eagar J. in COO v Minister for Justice and Equality [2015] IEHC 139 held otherwise, Ryan P. was satisfied that it was incorrect. Ryan P. was satisfied in the present case that there was no basis for invalidating the Minister’s consideration of the revocation application on this ground. It was noted that the application was put before the Minister on a joint basis comprising mother and daughter and it was therefore reasonable for the Minister to consider them together.
Ryan P. also held that the Minister was not obliged to make a comparison between the educational opportunities in Ireland and Nigeria before making a decision on the revocation application. That question was, as the High Court noted, a matter that was or could have been ventilated at the stage of consideration of the deportation order, pursuant to s.3(6) of the 1999 Act. Finally, it was held that the applicants had not shown that the Minister’s conclusion as to the education system in Nigeria was irrational. Accordingly, the appeal was dismissed.
Decision:
Appeal dismissed.
