The Irish High Court has granted leave for judicial review in respect of the deportation of a Nigerian man on the basis that the rights of an unborn child far exceed solely the right to life.
The comments were made by Mr Justice Humphreys in granting leave to a Nigerian man to apply for the revocation of an order made in 2008 regarding his deportation. The man, along with his pregnant Irish partner, sought leave for judicial review in July 2015 and were granted an interim injunction order restraining deportation.
Justice Humphreys held that children’s rights under article 42A of the Constitution, inserted by the Children’s Referendum in 2012, conferred rights to all children, including the unborn, which must “be taken seriously by the State”. It was emphasised that the recognition of these rights did not confer an automatic entitlement for parents to remain in the country. Further, while the the intention of both Article 42A concerning children’s rights and Article 40.3.3 concerning the right to life of the unborn was not that of immigration, it was found that this lack of intention did not displace the legal consequences of rights flowing from the unborn child to their parent. It was held that beyond the right to life, any and all rights the child will acquire upon birth must be taken into consideration, to the extent that they are relevant to the deportation proceedings being faced by a parent.
In addition to the rights under the Constitution, the statutory rights of the man and his family, alongside rights under the European Union and the European Convention of Human Rights, including family rights under Article 8, must be taken into account.
In rejecting arguments forwarded by the State that the only right held by the unborn child is the right to life and that the fact that the child’s parents were not married detracted from their rights as a family under Article 8 of the ECHR, Justice Humphreys called upon the State to recognise that citizens are engaging in a much wider range of family relationships which also attract the protection of the Constitution. He stated that a shift in the societal view of the family, including the Constitutional amendment providing for same-sex marriage required the State to have cognisance of the wide inherent constitutional rights enjoyed by unmarried parents in relation to each other and to their children.
The judgement would appear to move away from decisions made prior to the signing into law of the Thirty-First Amendment of the Constitution (Children) Act 2012 in April 2015, particularly the case of Ugbelase in which the High Court found that the right to be born was the only right protected under the Constitution.
Click here for the Irish Times coverage of the case.
Click here for the decision in Ugbelase v Minister for Justice, Equality & Law Reform.