Mr Ugbelase was a Nigerian citizen whose application for refugee status in Ireland was refused. He met and married an Irish citizen. The Minister issued a proposal to deport him and invited him to make representations for humanitarian leave to remain. He made representations in December 2008 in which he mentioned his marriage to an Irish citizen. He did not mention that his wife was pregnant. The Minister made a deportation order in respect of him, and he made an application to have it revoked. In this application he mentioned that he and his wife were expecting a baby. The Minister refused to revoke the deportation order and the Applicants, Mr Ugbelase, his wife and child sought an order of certiorari quashing that refusal, arguing that the Minister’s failure to consider the rights of Mr Ugbelase’s unborn child was unlawful. Leave to seek judicial review was conceded.
In its judgment on the substantive application, the High Court reviewed the case law on the deportation of non-national parents of Irish children. The Court noted that the fact that a minor child who is an Irish citizen has an entitlement to certain personal rights under the Constitution and to respect for private life and family life under Article 8 of the ECHR does not, as such, preclude the exercise by the State of its sovereign right to control the entry and presence in the State of foreign nationals including, in necessary cases, the expulsion from the State of a non-national parent of such a child. The State is not bound by a choice of residence made by a couple for themselves and for their family. The power of the Minister in such a case to make a deportation order under s. 3 of the Immigration Act 1999 is, however, constrained by the need to exercise it consistently with and not in breach of the constitutionally protected rights of the child and of other family members who are not to be deported and may not decide to depart and by the obligations arising under s. 3 of the ECHR Act 2003.
The Court considered the test set out by the Supreme Court in Oguekwe v. Minister for Justice, Equality and Law Reform and the two key factors involved in the exercise required of the Minister when deciding whether a deportation order should be made in such cases. First, the Minister must consider all facts relevant to the personal constitutional rights of the child and secondly, he must identify a ‘substantial reason’ which requires the deportation of the non-national parent. Having ascertained ‘the facts and factors affecting the family’ and the child in each case ‘by due inquiry’ he must consider the circumstances in a fair and proper manner so as to arrive at a decision which is reasonable and proportionate in all of those circumstances.
It was the Applicants’ case that the same exercise was required where the child was not yet born and that the Minister had failed to do so in their case. The Court considered the impact of Article 40.3.3 of the Constitution [which protects the right to life of the unborn child] and concluded that the only right of the unborn child under the Constitution was contained in that Article and the deportation of a non-national parent could not in any sense interfere with that right of unborn child: the right to life, that is, the right to be born. For this reason, the Court refused the application for judicial review.