The Supreme Court has reserved judgment on an appeal by a Nigerian woman and her unborn child against a High Court decision last month rejecting their challenge to the making of a deportation order against the woman.
The 32-year-old woman, who lives in Co Kerry, is due to give birth next May.
In his High Court judgment, Mr Justice Smyth found the case concerned the legal right of the Minister to deport a person who had failed to secure a certificate of refugee status from the State because she was pregnant. He ruled the Minister was entitled to make the disputed order.
Opposing the appeal against that decision, Mr George Birmingham SC, for the State, yesterday argued this was not a "right to life" case. Article 40.3.3 of the Constitution, which dealt with the right to life of the unborn, was clearly referable to abortion and was not an issue here.
This was a case where it was claimed this woman could not be returned to a country with an inferior health service, Nigeria, and that was not a right-to-life issue. This was really a claim that one was entitled to choose the health services which one preferred.
If this was correct, it would mean there could be no deportation of pregnant women. A pregnant woman could present herself at an airport or ferry port and argue she could not be deported.
He said the issue of this woman's pregnancy had been raised late in the day after she had gone through the asylum process and her appeal against its refusal had been rejected. The Minister was entitled to consider that pregnancy did not amount to circumstances which would require him to revoke the deportation order.
Mr Birmingham also argued the unborn could not be an applicant in relation to asylum proceedings. How could one serve legal documents on the unborn or argue its position, he asked. The Constitution provided that it was the entitlement and birthright of all born on the island of Ireland to be part of the Irish nation but this had no application to persons who were not born here.
Criticism by the woman's lawyers of the handling of her application by the Refugee Legal Aid Service was not justified. Mr Birmingham further argued that lawyers for the woman and her unborn child were seeking to raise arguments for which the High Court had not granted them leave.
Earlier, in submissions for the woman, Dr Michael Forde SC argued that because the unborn child was "a person", there had to be a specific decision to deport the unborn, including the making of a deportation order. In this case, the unborn child was not the subject of any deportation order.
Ms Justice McGuinness said that brought the court back to whether this would mean the Minister would have to compulsorily test women before deportation to establish if they were pregnant. Dr Forde responded that was an "absurd proposition" which would require legislation.
If he had indicated on Monday that that would have to be done, he must have misunderstood the court. When pressed, he said if the Minister inaugurated a pregnancy-testing scheme for women facing deportation, there would be "nothing unconstitutional" about that.
Mr Richard Humphreys, also for the woman and unborn, argued she was not granted fair procedures when she applied for asylum. He contended the Refugee Legal Aid Service failed to advise her in a way she would understand of her right to a judicial review of the asylum decisions and in relation to other matters.
He also argued the process under which her application was dealt with was flawed in that the decision-makers made a number of errors of fact and breached fair procedures, including the refusal to grant an oral hearing of her application for leave to remain here.
The appeal concluded yesterday and the five-judge court reserved its decision.
