The Minister for Justice had an obligation to have regard to "the best interests" of an Irish-born child before refusing the child's foreign-national parents the right to remain here under the Irish Born Child scheme of 2005 (IBCO5), the Supreme Court was told yesterday.
Because a negative decision on the parents' application for leave to remain on the scheme would impact negatively on the child, the Minister was required to consider the child's interests at the stage where he proposed to make a negative decision, said John Trainor SC, for a number of unsuccessful applicants under the scheme.
The refusal of applications to remain had negative implications for Irish-born children and perpetuated a situation of instability, counsel added. The children were affected by their parents' illegal status and many were conscious of it.
One of the children affected, George Jordan Dimbo, had outlined the effect of the illegal status of his parents in the eyes of his friends and at school and had spoken about praying to God to have his parents' papers signed. This indicated an active engagement of the child's right to respect for his private and family life under the European Convention on Human Rights.
In contrast, a positive decision on applications to remain allowed the child's parents to work here and to improve their situation and that of their child, counsel said.
The Minister's refusal of leave to remain was a "total" refusal and there was no other course open to unsuccessful applicants except in circumstances where a deportation order was made which was a completely different procedure, he said.
Anthony Collins SC, for other unsuccessful applicants for leave to remain, said the Minister could have created a "far clearer" scheme than he had and not one which now required to be "deciphered" by seven senior counsel, by five Supreme Court judges and one High Court judge.
There was no single document outlining the terms of the scheme but a person with limited English was still expected to have a full grasp of it from newspaper notices, counsel said. The Minister had created "a unique and unusual scheme" which had become "a rod for his own back".
Mr Collins and Mr Trainor were opposing an appeal by the Minister for Justice and the State against a High Court decision last November in which Ms Justice Mary Finlay Geoghegan found the Minister had unlawfully breached the rights of several Irish-born children by the manner in which he refused their foreign-national parents' applications to remain here under the IBCO5 scheme.
The decision relates only to non-Irish national parents of children born before January 1st, 2005, but the outcome of the appeal has implications for hundreds of cases. Some 16,000 applicants were granted leave to remain under the scheme while about 1,120 were refused, half of those on the basis they were not continuously resident here since the birth of their Irish citizen child.
