The State has filed a notice of appeal against a significant High Court judgment which found the word "unborn" in the Constitution means an unborn "child" with rights beyond the right to life.
While that finding was made by Mr Justice Richard Humphreys in the context of an immigration case, its significance may extend well beyond that.
The State also wants clarity on the extent of the constitutional rights of the “unborn” due to a number of apparently conflicting High Court judgments on that issue.
After some discussion in recent weeks involving the judge and lawyers for the parties involved, it was agreed the State did not require a certificate for leave to appeal before proceeding to file a notice of appeal with the Court of Appeal.
The appeal will now be managed in the appeal court’s directions list and a hearing date will be fixed later.
Immigration case
Separately, costs issues arising from the High Court proceedings, brought by a Nigerian man, his Irish partner and their now one-year-old child who was not born when the case was initiated in July 2015, were mentioned to the judge on Monday.
Michael Conlon SC, instructed by Brian Burns, of Burns Kelly Corrigan Solicitors, for the applicants, sought their entire costs but Denise Brett SC, for the Minister for Justice, argued the costs order should reflect the applicants had lost on some points raised. The judge adjourned the costs issues to next month when he will hear further submissions.
The State’s undertaking not to deport the man pending a further court order continues.
In his judgment delivered last July, Mr Justice Humphreys held “unborn” to mean an “unborn child” with rights extending beyond the right to life under Article 40.3.3 (the 1981 anti-abortion amendment of the Constitution).
He also interpreted Article 42A of the Constitution, inserted as a result of the 2012 Children’s Referendum, as affording protection to all children “both before and after birth”.
Facing deportation
Article 42A provides “the State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights”.
The unborn child, including of a parent facing deportation, enjoys “significant” rights and legal position at common law, by statute, and under the Constitution, “going well beyond the right to life alone”, the judge held. Many of those rights are “actually effective” rather than merely prospective, he said.
While neither Article 42a nor Article 40.3.3 were intended to confer immigration rights, that did not displace any legal consequences flowing from the prospective position of an unborn child with a parent facing deportation, he said.
Granting the applicants leave for judicial review, the judge said, when considering whether or not to revoke the 2008 deportation order, the Minister must consider the right to life of the unborn plus the legal rights the child will acquire on birth, insofar as those were relevant to deportation.
The Minister must consider the constitutional, statutory, EU and ECHR rights of the man, his partner and the child, including their family rights under Article 8 of the ECHR, he ruled.
His findings did not mean a person in this man’s position – unlawfully in the State since 2007 – was automatically entitled to remain here, he stressed.
