A Nigerian mother and her Irish-born daughter have lost their appeal claiming the child’s right to education under the Children’s Act 2015 outweighs the State’s entitlement to deport them.
The mother and daughter, now aged nine, remained in Ireland illegally after deportation orders were made in 2009. The High Court correctly held the child’s right to education while here did not prevent their deportation, the three judge Court of Appeal ruled on Tuesday.
However, it disagreed with the weight given by the High Court to an European Court of Human Rights (ECtHR) judgment concerning Norway’s entitlement to operate immigration policy on the basis of identifying children with conduct of their parents.
Ms Justice Mary Irvine said the ECtHR’s decision did not mean the Irish courts should “ignore the fundamental values associated with family life” as protected by Article 42 of the Constitution.
The Courts should strive to ensure the European Convention on Human Rights is not used to reduce the level of protection of those rights.
It is “quite wrong” to treat ECtHR judgments as having similar binding status to those of the Supreme Court or Court of Justice of the EU, she said.
The Constitution requires the State to recognise the family rights of non-citizens as well as citizens and to protect them “given that these rights derive not from citizenship but from their nature as human beings”.
The Court of Appeal decision concerned a woman who was heavily pregnant when she came here alone in 2008. Her daughter was born four days later.
After applications for asylum and subsidiary protection were refused, the Minister for Justice ordered deportation of mother and daughter in late 2009.
They went into hiding for about five years until 2014 when the mother instructed solicitors to apply for revocation of deportation.
n May 2015, a month after the Children’s Act 2015 came into force, the Minister refused revocation.