Deportation orders against a Nigerian woman and her daughter, born in Ireland, have been reversed by the High Court, who has rejected the argument that non-settled migrants do not have a right to a private life under Article 8 of the European Convention of Human Rights (ECHR).
The woman arrived in Ireland while pregnant in 2008, claiming she fled in fear of her safety following her partner being killed by the military. The Refugee Applications Commissioner rejected her asylum application for lack of credibility, with the Minister for Justice ordering deportation in 2010. The mother and child brought judicial review proceedings claiming breach to their right to a private and family life under the ECHR, and arguing the best interests of the child under the UN Convention on the Rights of the Child (UNCRC).
Mr Justice Colm Mac Eochaidh quashed the deportation orders on the basis of the ‘irrational’ and ‘unlawful’ approach to the application of Article 8 in this instance. While the State found that the applicants held private lives within the State, it maintained that removal would not have grave consequences on their private lives and thereby warranted no further consideration of Article 8 rights. Justice Mac Eochaidh found that once private life is interfered with, Article 8 is invoked and must be adequately weighted in decision making.
Justice Mac Eochaidh also rejected the argument that the case law of the European Court of Human Rights (ECtHR) provided that non-settled migrants do not have rights to private life that are protected by Article 8.
The decision, however, did not uphold State obligation under the UNCRC in making such decisions, as it was not for the courts to include a provision in the Irish Immigration Act that the best interests of the child be primary consideration in making a deportation order. As such, the Immigration Act and UNCRC were seen in contradiction, with no legitimate expectation that the terms of the convention should be respected by the Minister for Justice.
Click here to read the Irish Times analysis of the case.