Michael McDowell is proposing to deport several hundred vulnerable Irish citizens and to do so through a procedure that effectively denies most of them any legal advice or representation, writes Vincent Browne
Furthermore, he is proposing to do this in contravention, in many instances, of guidelines he was instrumental in having established in a Supreme Court case 13 years ago.
The citizens in question are Irish-born children of non-national parents. The entitlement of those children to Irish citizenship is not in dispute. The parents of those children have been refused asylum here and Mr McDowell has made it quite clear that, when these parents are deported, he fully expects them to take their Irish children with them.
Mr McDowell has been authorised to do this by a decision of the Supreme Court last January 23rd, a decision that seems to conflict with the decision reached by the same court (although the personnel are now entirely different) of 13 years ago.
The recent case involved two families, one from Nigeria and the other from the Czech Republic. The Nigerian parents and one child arrived here in May 2001, having come from Britain. In October 2001, a second child was born in Ireland. The Czech family, parents and three children, arrived in March 2001 and a fourth child was born here in November 2001.
Both families applied for refugee status, both were denied and the Minister for Justice, Equality and Law Reform made an order for the deportation of all the non-Irish-born members of these families. It is agreed that the formal deportation of the Irish-born children would not be legal for, having been born here, they are entitled to Irish citizenship and residency. But it is also accepted that the effect of the deportation of the families of these Irish infants is to deport them as well.
The stated basis for the deportation of these families was essentially the length of time they had been in the State and "the overriding need to preserve respect for and the integrity of the asylum and immigration systems".
Five of the seven judges of the Supreme Court (Ronan Keane, Susan Denham, Hugh Geoghan, Adrian Hardiman and John Murray) held the Minister was entitled to deport those families on this basis. The two other judges (Catherine McGuinness and Niall Fennelly) dissented vigorously.
All judges felt obliged to follow the criteria laid down in the 1990 case, involving a Nigerian family called Fajujonu. In that case the Supreme Court unanimously held that, although the Government was entitled to deport non-national parents and siblings of Irish-born children, it could do so only after the application of a strict evaluation procedure. In the Fajujonu case Mr Justice Walsh held that the Minister, in seeking the deportation of these non-national parents of Irish-born children, "would have to be satisfied, for stated reasons, that the interests of the common good of the people of Ireland and of the protection of the State and its society is so predominant and so overwhelming in the circumstances of the case, that an action which can have the effect of breaking up this family is not so disproportionate to the aim sought to be achieved as to be unsustainable".
The then chief justice, Mr Justice Finlay, said the deportation of the parents in the Fajujonu case, could be undertaken only "for a grave and substantial reason associated with the common good".
The reasons for these strict criteria was because of the constitutional sensitivities involved in interfering with the right of the Irish child to the society of his/her family and the rights of the family generally as stated in the Constitution.
Michael McDowell was the senior counsel representing the Fajujonu family in that case.
Quite clearly, these criteria have not been adhered to in the recent instance. No evidence was advanced that the Minister, in making these deportation orders, was satisfied that the interests of the common good in this instance were "so predominant and so overwhelming" as to justify the break-up of these families, or that there were "grave and substantial reasons associated with the common good".
The reason that the five judges of the Supreme Court, who were in the majority, gave for appearing to depart from the guidelines laid down in the earlier case they all found "authoritative" (the Fajujonu case) was because the facts were different. In the Fajujonu case the family had been resident here for several years and there were three Irish-born children.
But how these facts made any difference to the principle involved is not at all clear. The key issues now and in 1990 were the constitutional right of an Irish citizen to reside here; the right of an Irish infant to the society of his/her family, given the strong protection afforded the family in the Constitution; and, as a consequence, the special criteria that have to be applied when it is proposed to interfere with those rights.
And as though that was not bad enough, Michael Dowell has written to hundreds of families with Irish-born children asking them to give reasons within 15 days why they should not be deported and he is denying those families legal assistance in offering such reasons.