Facts: Mr. Odum, a Nigerian national, arrived to Ireland irregularly in November 2007. He married EA, also a Nigerian national in December 2007, however, the marriage was not registered and therefore was not considered lawful. They went on to have three children. The couple separated in 2014. In that same year, Mr. Odum applied for residency, but this application refused and he was issued with a deportation order. In the decision, the Minister assessed various factors under section 3(6) of the Immigration Act 1999, including rights to family life under Article 8 ECHR. The Minister concluded that the deportation order would not violate these rights. Mr. Odum challenged the deportation order by way of judicial review. The High Court dismissed the case in 2021. The Supreme Court granted leave to appeal in 2022 and the Irish Human Rights and Equality Commission (IHREC) were granted permission to participate as amicus curiae.
In 2022, Mr. Odum was granted temporary leave to remain in the State via the Regularisation of Long Term Undocumented Migrants’ Scheme. It fell to the Supreme Court to decide if the case should still be heard. In Odum and ors v. Minister for Justice and Equality (No. 1)([2023] IESC 3), it was held that while the appeal could be understood as technically moot, it involved a point of general public importance and should be heard. Central to this case was the consideration of the constitutional rights of the family, who are non-EU citizens, in the context of a deportation order.
Reasoning: In the Supreme Court, O’Donnell CJ distinguished the case from Gorry ([2020] IESC 55) in that the applicant and EA were not a married couple and were not cohabiting. The applicants did not argue that they should be treated as constituting a family for the purposes of Article 41 of the Constitution. However, O’Donnell CJ considered whether their children have constitutional rights, namely to the care, company, and companionship of their parents, irrespective of their marital status.
O’Donnell CJ first considered the question of the entitlement of non-citizens to invoke constitutional rights. With reference to NVH v Minister for Justice and Equality and the Attorney General ([2017] IESC 35), O’Donnell CJ recognised that there are a number of circumstances in which a non-citizen who can establish a sufficient connection to the State is considered the same as a citizen, and where, therefore, the Article 40.1 guarantee of equality as “human persons” before the law entitles them to rely on the same rights as a citizen. This is reinforced by the connection between fundamental rights in the Constitution and the reference in the Preamble to securing the dignity of the individual. The children in this case could rely on the mechanism of Article 40.1 for constitutional guarantees such as family life and education, and rights to liberty, free speech, and fair procedures, among others. However, this did not apply to attributes of citizenship, such as voting. It was held that the children did have constitutional rights to the care and company of their parent and that they may be affected by the deportation decision.
The Supreme Court, however, found that a non-citizen parent whose presence in the State was precarious would require exceptional circumstances to render a deportation decision invalid. It was held that the evidence provided on the first-named applicant’s relationship with his children and EA was limited, fragmentary and contradictory. It therefore failed to provide sufficient evidence of a real meaningful relationship such that a deportation order would impermissibly interfere with the children’s rights under both Article 8 ECHR and to the care and companionship of their parents under the Constitution.
Decision: In a unanimous decision, the Supreme Court upheld the decision of the High Court in dismissing the appeal.
