The Supreme Court has ruled that, though the Minister for Justice and Equality must give consideration to the likely birth of a deportee’s child in Ireland when deciding on cases of deportation, the unborn does not possess any inherent rights under the Constitution other than that provided for in Article 40.3.3. Article 40.3.3, introduced following a referendum in 1983 provides: “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate that right.’
The case arose out of an appeal by the Minister for Justice and Equality following a High Court ruling in 2015 which granted the applicant Mr M an injunction preventing his deportation order. A later decision by the High Court also ruled that the respondent Minister had to consider the rights of Mr M’s child who was unborn at the time of the initial deportation order. Click here for an early PILA bulletin article on that High Court determination.
On appeal the Supreme Court was required to consider five main points:
The Court considered the High Court judgement staying the execution of the deportation order and concluded several points. The Supreme Court agreed with the High Court that the Minister was obliged to consider the fact of the pregnancy of Mr M’s partner and take it into account when deciding on the revocation of a deportation order. The Minister must also give separate consideration to the likely birth in Ireland of a child of the potential deportee. In addition to this, the Court stated that the Minister was obliged to take into account the possibility that an Irish citizen child could be born and acquire upon birth constitutional rights which would be affected by deportation. The Court upheld the decision of the High Court in relation to these aspects of the case and the Ministers appeal against the declaration was dismissed.
However, the Supreme Court did depart from the High Court’s decision with regards the Constitutional rights attaching to an unborn foetus. Delivering judgement on behalf of the Court the Chief Justice determined that the constitutional rights of the unborn foetus were limited to those guaranteed under Article 40.3.3 as introduced by the 8th Amendment to the Constitution. The Chief Justice reasoned that neither the common law cases and statutory provisions nor the pre and post 8th Amendment cases relied on supported the High Court’s conclusions that the unborn possesses inherent constitutional rights other than those expressly provided for under Article 40.3.3- which restricts the constitutional rights of the unborn to the right to life with due regard to the right to life of the mother. The Court acknowledged that this decision in relation to the rights of the foetus did not alter the outcome of the case. However, it did mean that the Minister was not obliged to treat the unborn as having constitutional rights other than those contained in Article 40.3.3. and that it was accepted that the right to life is not implicated in the deportation decision in this case. The Court also stated that following this reasoning the High Court decision that the unborn is a child under Article 42A was also discarded.
To read the full Judgement in M & ors -v- Minister for Justice and Equality & ors click here.
For further commentary on the case please click here.