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Statement re. M & ors -v- Minister for Justice and Equality & ors [2018] IESC 14


This morning the Court delivers a judgment to which each of the members of the Court have contributed. As was pointed out in a ruling by Mr Justice O’Donnell in the course of an earlier application in this case and by me at the close of legal argument, the Court was required to take whatever time was needed to reach its conclusion and deliver a reasoned judgment. The Court has acknowledged the urgency of this case and has already put in place procedures to facilitate a speedy hearing. It has proved possible to reach a consensus on the important issues raised by this appeal and accordingly the Court delivers this unanimous judgment today.

At the beginning it must be emphasised that this is an immigration case which concerns the factors which the Minister for Justice and Equality must take into account when considering an application relating to deportation where it was expected that the potential deportee would become the father of a child. It was accepted that the child concerned would, on birth, become an Irish citizen.

In its judgment today the Court summarises the issues which it had to consider as follows:

      (i) Whether the Minister was required, as a matter of law, to have regard to the position of the third respondent while unborn as a factor to be taken into account in the deportation revocation application under consideration;

      (ii) whether, in addition, the undoubted constitutional rights which the third respondent would enjoy as an Irish born citizen child when born were also matters which required to be taken into account;

      (iii) whether, as the trial judge in effect determined, the unborn enjoy a wide range of constitutional and other rights independent of the right to life guaranteed by Article 40.3.3 of the Constitution as inserted by the Eighth Amendment;

      (iv) whether, as again the trial judge determined, the term “any children” to be found in Article 42A of the Constitution includes the unborn; and

      (v) whether it is necessary, as found by the trial judge, to reassess the constitutional rights of families not based on marriage.

In its conclusions the Court notes that the judgment is lengthy. This range of issues raised in the High Court and debated on this appeal together with their complexity, and importance more generally, has meant that it was necessary to discuss the law in some detail. Without detracting from the matters discussed in this judgment it is still possible to give the following summary of the Court’s considerations.

(i) The legal issue in this case relates to the process which must be followed when an application is made to revoke a deportation order under section 3(11) of the Immigration Act, 1999 on grounds that the proposed deportee is likely to become the father of an Irish citizen child.

      (ii) The Minister maintained that there was no obligation to give any separate regard to the position of the unborn.

      (iii) The High Court decided that this approach was invalid on a number of wide ranging grounds including a contention that the Minister was obliged to have regard to the fact of pregnancy and moreover to the likely impact of deportation on the rights which the Irish citizen child would acquire on birth. More broadly the High Court held that the unborn, at the time the Minister was asked to revoke the deportation order, had actual existing constitutional rights which the Minister was obliged to consider where were not limited to Article 40.3.3, and most relevantly included a right to the care and company of her father. In holding that the rights of the unborn were not limited to the provisions of Article 40.3.3 the High Court differed from the previous decision in the High Court (Cooke J.) in Ugbelase.

      (iv) In coming to this conclusion the High Court relied on certain decisions at common law and some statutory provisions as reflecting a general legal view that the unborn had enforceable legal rights not limited to Article 40.3.3 of the Constitution.

      (v) The High Court also relied on passages from decisions of the Supreme Court and High Court prior and subsequent to the passage of the Eighth Amendment as support for its decision that the unborn had constitutional rights other than as provided for in Article 40.3.3.

      (vi) The High Court also decided that the unborn was a child for the purposes of Article 42A and was therefore protected by the provisions that Article.

      (vii) Finally the High Court made observations about the nature of the Family protect by the Constitution.

      (viii) Accordingly the High Court held that the Minister’s decision was invalid and made a declaration that the Minister, in considering an application under s.3(11) of the 1999 Act for revocation of a deportation order, is required to consider the current and prospective situation of the applicant concerned including the prospective child of the applicant unborn at the time of the application.

      (ix) It should be noted that this declaration is in narrow terms and does not reflect the broader terms of the judgment.

For the detailed reasons set out in this judgment this Court has come to the following conclusions.

      (i) The Minister is obliged to consider the fact of pregnancy of the partner of the proposed deportee as a relevant factor in any decision to revoke a deportation order and is obliged to give separate consideration to the likely birth in Ireland of a child of the potential deportee.

      (ii) That moreover the Minister is obliged to take account of the fact that an Irish citizen child will acquire on birth constitutional rights which may be affected by deportation.

      (iii) The weight that the Minister must accord to these factors is not an issue in this case. It is not the case that the Minister, having considered these matters, is precluded from refusing to revoke the deportation order.

      (iv) Accordingly the decision of the High Court on this aspect of the case was correct and the declaration made is upheld. It follows that the Minister’s appeal against that declaration will be dismissed.

      (v) However, neither the common law cases and statutory provisions, nor the pre and post Eighth Amendment cases relied on, when analysed and understood, support the High Court ‘s conclusions that the unborn possesses inherent constitutionally protected rights other than those expressly provided for in Art. 40.3.3.

      (vi) The most plausible view of the pre Eighth Amendment law was that there was uncertainty in relation to the constitutional position of the unborn which the Eighth Amendment was designed to remove. In addition the provisions of the two subparagraphs to Article 40.3.3 introduced by the Thirteenth and Fourteenth Amendments support the Court’s view that the present constitutional rights of the unborn is confined to the right to life guaranteed in Article 40.3.3 with due regard to the equal right to life of the mother.

      (vii) While it does not alter the outcome of this case, the Minister is accordingly not obliged to treat the unborn as having constitutional rights other than the rights contained in Article 40.3.3. It is accepted that the right to life is not implicated in the deportation (or revocation) decision in this case. The High Court determination in this regard is reversed.

      (viii) The High Court determination that the unborn is a child for the purposes of Article 42A is also reversed.

      (ix) The Court is satisfied it is not necessary to address on this appeal any argument in relation to the status of the Family, which it was accepted was not part of the High Court reasoning in coming to this conclusion.

      (x) Accordingly, the formal order of this Court will be to dismiss the Minister’s appeal and affirm the declaration made by the High Court.

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