The Minister for Justice, Equality and Law Reform introduced a scheme inviting applications for permission to remain in the State from non-national parents of Irish born children before the end of March 2005. This became known as the “IBC/05” Scheme. In the Dimbo case, the Minister refused the applications from the child’s parents because they had not lived continuously in the State from the date of the child’s birth. In the Oguekwe case the Minister granted the child’s mother residency but refused the application from the child’s father for his failure to have been continually resident in Ireland from the date of the child’s birth. The refused applicants had also been issued with deportation orders. The applicants in both cases sought to quash the decisions to refuse permission to remain and the decisions to make deportation orders claiming inter alia that the Minister failed to consider the Constitutional and ECHR rights of the Irish citizen children.
The High Court quashed the Minister’s decisions to refuse residency and to make the deportation order and held that the Minister’s decisions were in breach of constitutional and ECHR rights. The Minister appealed both matters to the Supreme Court. The Supreme Court allowed the Minister’s appeal on the first issue for the reasons set out in the decision of Bode & Ors v The Minister for Justice, Equality and Law Reform. The Supreme Court dismissed the Minister’s appeal on the second issue and affirmed the decision to quash the deportation order. The Supreme Court agreed with the High Court that the discretion given to the Minister by Section 3 of the 1999 Act was constrained by the obligation to exercise that power in a manner consistent with the constitutional and ECHR rights of the people affected.
The Court affirmed that if the Minister was to take a decision to deport the parent of an Irish child he must:
- consider the facts relevant to the personal rights of the citizen child protected by Article 40.3 of the Constitution if necessary by due enquiry in a fair and proper manner
- identify a substantial reason which requires the deportation of a foreign national parent of an Irish born child and
- make a reasonable and proportionate decision.
The Court held that in the exercise of his discretion the Minister was required to consider the constitutional and Convention rights of the parents and children and to refer specifically to the factors he had considered relating to the position of any citizen children. The Court held that the Minister’s consideration should be fact specific to the individual child his or her age current educational progress, development and opportunities and that this consideration should not only deal with educational issues but also with the other matters referred to in Section 3 of the Immigration Act 1999. The Court stated that the extent of the consideration would depend on the facts of the case and that the Minister’s decision was required to be proportionate and reasonable on the application as a whole. The Court did not exercise its discretion to refuse relief to the applicants in the Dimbo case, notwithstanding that the second-named applicant in that case had sworn a false affidavit.
