Ireland - Dos Santos & ors -v- Minister for Justice and Equality & ors, [2015] IECA 210
Keywords:
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Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
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Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
Headnote:
Non-Citizen children of the State have rights protected by the Constitution when in the State, including rights under Article 41, 42 and 40.3. However, the right to reside in the State is a protection under Article 40.3 which is reserved for Irish citizen children. It is the citizenship of the child that confers this right to live in the State under Article 40.3.
The best interests of the child are considerations that must be assessed when deciding upon a deportation order for a child. However, as the Convention on the Rights of Child has been ratified by Ireland but has not been implemented as part of domestic law, the Court is not bound to view the best interests of the child as the primary consideration.
Facts:
The applicants are of Brazilian nationality and are a family unit consisting of a father, mother and five children. The father had arrived in Ireland lawfully on a work permit in 2002, this expired a year later. The mother had subsequently arrived in 2003 and their children between 2006 and 2007. The father was later stopped by the gardaí at a road check in 2007 upon which his irregular status was identified and deportation orders were issued in 2012 in respect of all applicants.
Leave to apply for judicial review against these orders was granted by the High Court in 2013 with the focus of submissions squarely hinging upon the children’s rights, namely that deportation would breach the personal right to a private life under Article 40.3 of the Constitution, that section 3 of the Immigration Act 1999 as amended must be construed in accordance with Article 3(1) of the Convention on the Rights of the Child, and that a determination had to be made as whether Article 8 of the Convention on Human Rights was engaged in relation to a potential interference with the child’s right to private life.
The High Court, on the basis of arguments later confirmed by the Court of Appeal and summarised below, dismissed the applicants’ claim for Certiorari of the decisions of the Minister to make deportation orders against them.
Decision & reasoning:
Article 40.3 of the Constitution
The Court first outlines the applicants submissions who argue that a non-national child who is not a citizen and does not have lawful permission to stay in the State has as part of his or her personal right, as protected under Article 40.3 of the Constitution, a right to a private life in the State including a right to remain in the State and continue to participate in a community life established while in the State. Whilst acceding to the argument that such children do have rights protected by the Constitution whilst present in the State, such as rights to fair procedures, the Court of Appeal, as in C.I., makes a distinction between children who are citizens of the State and those who are not. Confirming that it is the citizenship that grants a constitutionally protected right to live in the State, the Court of Appeal agrees with the High Court judge in finding that as the applicants were non-citizen children of the State they do not have a personal right within the meaning of Article 40.3 to remain in the State and/or participate in community life in the State.
Interpretation of s. 3(6)(a) of the Immigration Act 1999, as amended
The Court turns to the question of whether, when making a decision pursuant to Section 3(6)(a) of the Immigration Act 1999 leading to the deportation of a child, that Article 3(1) of the Convention on the Rights of the Child should be relied upon. This would, therefore, mean that when a determination has been made that the person is a child, the child’s best interests must be “a primary consideration” when determining whether or not to make a deportation order in respect of the child.
Confirming that the Convention has been ratified in Ireland but not implemented by an Act of the Oireachtas, the Court highlighted, by virtue of Article 29.6 of the Constitution, that the UN Convention is not part of domestic law. Therefore, whilst the best interests of the child, including family circumstances and the child’s welfare, are considerations that must be assessed, the Court is not bound to view such interests as the primary consideration. The Court of Appeal noted that since the decision of the trial judge Article 42A of the Constitution came into force and that this article too is silent on decisions taken by the Minister in relation to the deportation of a child. Moreover, Article 24(2) of the Charter of Fundamental Rights of the European Union is not applicable as the deportation decisions taken by the Minister were not ones to which the Charter applies.
Article 8 of ECHR
Lastly, the Court considered the impact of a deportation order on the rights to respect to private and family life under Article 8(1) of the ECHR for the applicants. Taking cue from the ministers decision to assess the mothers and children’s deportation orders in light of Article 8 separately from the fathers, as it was acknowledged that the latter had had the opportunity to develop links with his community and develop his private life in the State, the Court of Appeal, relying upon the interpretation given to Article 8 in C.I., held that for all applicants the alleged interference with the right to private life under Article 8 did not have consequences of such gravity to potentially engage its operation.
Outcome:
The Court of Appeal held that the trial judge was correct in dismissing the applicants’ claim for Certiorari of the decisions of the Minister to make deportation orders in respect of the applicants.
Appeal was dismissed.
Subsequent proceedings:
The appeal raises similar issues in relation to Article 8 of the European Convention on Human Rights to that raised in the appeal of C.I. and others, delivered on the same day, albeit in a context where the trial judge did not consider the Minister to be in error in the approach taken with regards to the questions formulated by Lord Bingham in Razgar.
An addendum was added to the appeal noting the decision of the Supreme Court in P.O & anor -v- Minister for Justice and Equality & ors [2015] IESC 64. The Supreme Court decision follows the reasoning in Dos Santos and C.I. in that it confirms that although family life arose in this State, it occurred at a time when the first named appellant must have been aware that her immigration status was “precarious.”
Observations/comments:
The court assessed the applicants’ rights to private life under Article 8 in a fashion similar to the assessment in the C.I. case.
For a concise summary of this case please see;
Brophy Solicitors, Recent Cases on Deportation Orders & Article 8 Rights, October 2015