A grandmother's bid to be permitted live here with her daughter, an employed lone parent, and help rear her three grandchildren, two of whom are Irish citizens, has been rejected by a two to one Supreme Court majority.
The grandmother, referred to as Esme, came here in 2006 and was deported to her native Nigeria in 2009. Due to that order, she cannot return to visit the family, her only relatives.
Esme was living alone in Nigeria in substandard rented accommodation before coming here in 2006 when her grandchildren were aged one, seven and 10, the court heard.
Her daughter had come here in 2000 and separated from the children’s father in 2005. The daughter is entitled to remain due to being mother of two children born here before the enactment of laws limiting the citizenship entitlements of some Irish-born children.
In seeking judicial review of the deportation, the family argued the Minister for Justice and relevant officials failed in 2008 to properly consider various issues, including potential psychological harm to the children from their grandmother’s deportation. Full consideration of those and other matters was required under the terms of settlement of an earlier challenge to the deportation, it was argued.
By a two to one majority, the Supreme Court upheld a High Court decision they had not made out a stateable case entitling them to judicial review.
Mr Justice Frank Clarke, dissenting, found they had a stateable case on the ground proper consideration was not given to the factor of potential psychological harm to the children from the loss of Esme's stabilising influence.
Giving the majority judgment, Mr Justice Peter Charleton, with whom Ms Justice Mary Laffoy agreed, said Esme was invited in 2006 to come to Ireland by her daughter, struggling with the demands of a young family.
Esme did not apply for a visa but, on arrival at Dublin airport, sought asylum on grounds of persecution. In her asylum application, she frankly stated she had no grounds to fear persecution but wanted to remain to look after her daughter and grandchildren.
Her application was refused and a deportation order was made later in 2006. A challenge to that was initiated and settled in 2008 on terms of “questionable” benefit to Esme. These involved the Minister reconsidering her application but the deportation order was never overturned and Esme was ultimately deported in 2009.
A Department of Justice official had accepted deportation would involve interference with family life rights within the meaning of Article 8 of the European Convention of Human Rights but said it seemed Esme knowingly circumvented immigration laws by claiming asylum when she did not need it. He also found no “insurmountable obstacles” to the entire family returning to Nigeria.
Mr Justice Charleton said, if the court granted leave for judicial review, that would suggest doubt about the level of appreciation to be given to national authorities when considering Article 8 cases, especially where the circumstances suggested “misuse” of the asylum system and delay due to litigating a refusal to overturn a valid deportation order.
The “inescapable reality” was Esme’s failure to apply for a visa before arriving here, he said. The asylum system, specifically designed to uphold Ireland’s international obligation to receive those either persecuted or at risk of persecution, was instead used to “spin out” a stay here that was not otherwise lawful.
Esme was never a refugee and her essential case, understandable from a human point of view, was that she wanted to stay to help her daughter and grandchildren. That case did not change and a person who wants the Minister to overturn a deportation order is obliged to make their best case then, not later when seeking judicial review.
A psychiatric report provided in 2008 did no more than report on a factual situation already set out in documents, he said.
Rights of the family based on marriage may need to yield to the State’s entitlement to legitimately provide for a “rational and considered” immigration policy and the more the family moves away from the nuclear family, such as concerning rights of grandparents, the constitutional guarantee is either inapplicable or recedes, he said.
It was apparent, while Esme was here, she was important to her family but, as a foreign national, she entered Ireland on foot of an “untenable” argument she was seeking asylum.
Foreign nationals have no general entitlement, either under the Constitution or the ECHR, to establish a domicile without the appropriate national permission, he ruled.
