Odum & ors v Minister for Justice and Equality (No. 2)


Respondent/Defendant:The Minister for Justice and Equality
Court/s:Supreme Court
Nature of Proceedings:Appeal
Judgment Date/s:14 Nov 2023
Judge:O’Donnell, D.; Charleton P.; Baker M.; Woulfe S.; Hogan G.; Murray B.; Collins M.
Keywords:Child, Deportation, Deportation Order, European Convention on Human Rights (ECHR), Family Life (Right to), Family Member, Illegal Stay, Regularisation
Country of Origin:Nigeria

Facts: Mr. Odum, a Nigerian national, arrived to Ireland irregularly in November 2007. In December 2007, he married a Nigerian national, EA, in Limerick. However, the marriage was not registered and therefore was not lawful. They subsequently had three children. In 2014, the couple separated. Mr. Odum applied for residency in that year. This application was refused and he was issued with a deportation order in 2016. Mr. Odum challenged the deportation order by way of judicial review. The High Court dismissed the claim 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.

Reasoning: Central to this case is the consideration of the family’s constitutional rights in the context of a deportation order. In this case, in deciding whether to issue a deportation order to Mr. Odum, 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 and this was not contested by the applicants. However, the applicants submitted that the decision erroneously did not consider their constitutional rights. In the Supreme Court, O’Donnell CJ held that the Minister’s decision was not invalid as a result. Nonetheless, the Supreme Court was obliged to consider whether the Minister’s decision was flawed as being in breach of the constitutional rights of the applicants.

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 the 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 ([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 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 would have. 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 a 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

Principles:There are a number of circumstances in which a non-citizen who can establish a sufficient connection to the State is 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 would have. Non-citizen children, may in this regard, be entitled to the rights of the care and company of their parent. However, where the parent is in a precarious situation in the State, exceptional circumstances would be necessary to invalidate a deportation order.
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