In March 1995 an Albanian national Mr Z, entered the State unlawfully and worked here without a work permit for a number of years using an alias. He formed a relationship with an Irish citizen and they married in 2012. In 2007 they had a child (their first was stillborn.)
The family have lived together continuously with the exception of a three-year period when Mr Z was imprisoned. He was imprisoned after being convicted for offences “arising out of an altercation with a co-worker in 2012 when he discharged 6 bullets from an illegally held firearm striking his colleague.” I am not sure why the Supreme Court has described the offence in this way – was he convicted of grievous bodily harm or attempted murder, as I’m pretty sure there is no offence of ‘discharging 6 bullets from an illegally held firearm striking a colleague.’ He shot a colleague 6 times, it seems to me, with an illegally held firearm.
For this offence Mr Z was sentenced to seven years imprisonment with three years suspended. He served three years of this sentence. Mr Z and his Irish citizen partner married shortly after the shooting incident took place.
Previously Mr Z, in November 2003 was convicted for intoxication in a public place and a charge of threatening, abusive or insulting behaviour in a public place was taken into consideration.
Mr Z was never granted permission to remain in the State. At no time since 1995 has he had an official right to remain.
His child has special needs – he suffers from hearing loss and an autism diagnosis was made in February, 2013. The mother and wife is an Irish citizen and is a healthcare professional. She is the sole breadwinner for the family and works long hours. As such Mr Z is the primary carer of the Irish citizen child.
On the 19th April 2017, a proposal to deport Mr Z was issued while he was still in prison.
The Minister for Justice and Equality acting on behalf of the State considered that the interests of the State and its citizens were served by deporting Mr Z who had entered Ireland illegally, worked in Ireland illegally and had, to put it mildly, a propensity for violence. The Minister felt that Mr Z “has a propensity towards extreme and disproportionately violent outbursts” and that “there exists a genuine, present and sufficiently serious threat affecting a fundamental interest of society, which justifies, on the ground of protecting the requirements of public policy, in preventing disorder or crime, deportation of Mr. Z.”
The lower court decided however sufficient consideration was not given to the rights of the Irish citizen and child of Mr Z and quashed the deportation order. This went all the way to the Supreme Court.
The key legal argument focussed on what test should be considered when balancing the rights of the Irish citizen not to be at risk from Mr Z’s trigger temper together with his ability to get his hands on illegal weapons, and those of his Irish citizen child. The rights of the child are considered under Article 41 of the Irish Constitution and article 8 of the European Convention of Human Rights. These are long standing rights.
What is new in this case however is the reliance placed on the new constitutional provision, Article 42A. You may know Article 42A from the 2015 ‘child’s rights’ referendum that inserted that provision into the Irish constitution. I was living in London at the time, so readers would be better placed to say whether the issue of immigration law came up in the debate. Were voters told that significant reliance could be placed on this new constitutional provision by illegal immigrants who happened to be parents of an Irish citizen when challenging a deportation order made against them. I’d like to know if that came up in the referendum – because I think – I’m taking an educated guess here, that it didn’t.
Turns out this is quite an important provision when it applies to immigration law. Article 42 A1 reads: 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.
This means potentially stopping the deportation of your father who has a criminal record and entered the state illegally.
The Supreme Court said that, Article 41 protects the rights of the family as a unit but article 42A1 is focussed more on the stand alone rights of the child, which include the right of that child to care and comfort both parents provide. In short, the best interests of the child should be a primary (but not the paramount) consideration for the Minister when deciding whether to issue a deportation order against an illegal immigrant.
The Court was careful to say that the rights of the child would not lead to a presumption against deportation order but I suspect for many cases that is exactly what it will amount to.
“In this context the best interests of the child are a primary consideration for the Minister, but unlike the special category of Article 42A.4.1 cases, they are not the paramount consideration. As stated above, the Minister would therefore be perfectly entitled to have regard to many other primary considerations, not least the public interest in deporting non-nationals who have committed serious crimes of violence. I repeat that the fact that the Minister must have regard to the child’s best interests as a primary consideration in such cases does not in any sense create some form of presumption against the making of a deportation order, or any other immigration order, which may have the practical effect of sundering parental ties with the child. Article 42A.1 does, however, mean that the Minister must have regard to the child’s best interests, and her decision must engage in this regard with the child’s constitutional rights.”(at 122.)
It is difficult to see how a Minister could consider the best interests of the child as a primary concern and still decide, yes we will send his or her parents back to where he came from, some far off land that his child can rarely visit. Surely the parent would have had to commit a very serious offence in that case, usually a sexual offence against his own child for the Minister to decide yes deportation serves the best interests of the child.
The Supreme Court says the Minister is still entitled to weigh the interests of the State against the child’s best interests, and the child’s best interests are a primary consideration in the balancing act. They are not paramount consideration (that is triggered in the later provisions of Art 42A), nor are they the primary consideration, a trump card.
However, if you ask me, this is set up to be a bonanza for immigration lawyers and if not a get out of jail free card for illegal immigrants, then certainly a ticket to remain in the country even if they entered here illegally and committed a serious criminal offence while working here illegally.
It would be interesting to see the numbers of deportations that are effective in Ireland going forward and how many illegal immigrants have successfully challenged a deportation order, relying on their children and what’s in their best interests. The best interests of the Irish citizen seem neither here nor there.