Fajujonu v Minister for Justice

Judgment Date01 January 1990
Neutral Citation1989 WJSC-SC 1458
CourtSupreme Court
Docket Number[1984 No. 9203P: S.C. No. 387 of 1987]
Date01 January 1990

1989 WJSC-SC 1458


Finlay C. J.

Walsh J.

Griffin J.

Hederman J.

McCarthy J.









ALIENS ORDER 1946 SRO 395/1946 ART 5




OSHEKU & ORS V IRELAND 1987 ILRM 330, 1986 IR 733






Entry - Illegality - Married couple - Family - Children citizens born in the State - Minister requested parent to leave the State - New issue raised on appeal - Constitutional rights of citizen children - Aliens Order, 1946 (S.R. & O. No. 395), article 5 - Aliens Act, 1935, s. 5 - Constitution of Ireland , 1937, Articles 40, 41, 50 - (387/87 - Supreme Court - 8/12/89) - [1990] ILRM 234

|Fajujonu v. Minister for Justice|


Personal rights

Family - Residence - Aliens - Illegal immigrants - Three children born in the State - Parents sought to resist anticipated deportation by relying on the rights of their citizen children - Powers of Minister - (387/87 - Supreme Court - 8/12/89) - [1990] ILRM 234 - [1990] 2 I.R. 151

|Fajujonu v. Minister for Justice|



Exercise - Aliens - Family - Residence - Illegal immigrants - Three children born in the State - Parents sought to resist anticipated deportation by relying on the rights of their citizen children - (387/87 - Supreme Court - 8/12/89) [1990] ILRM 234 - [1990] 2 I.R. 151

|Fajujonu v. Minister for Justice|


JUDGMENT delivered on the 8 th day of December1989by FINLAY C. J. [GRIFFIN HEDERMAN McCARTHY]


This is an appeal brought by the Plaintiffs against the dismissal of their action in the High Court by Order of the 2nd December 1987 by Barrington J. The Plaintiffs are, respectively, husband, wife and daughter of the marriage. The first-named Plaintiff is a citizen of Nigeria, the second-named Plaintiff is a citizen of Morocco, and the third-named Plaintiff is a citizen of Ireland, having been born to the first and second-named Plaintiffs while they were residing in this country, on the 24th September of 1983. The Plaintiffs" claim, which is institutedby Plenary Summons was for the following relief.


(a) An Order restraining the Defendants from prohibiting the Plaintiffs or any of them from continuing to reside in the State or from taking any further action against them pursuant to the provisions of theAliens" Act 1935.


(b) A declaration that the Plaintiffs are entitled to reside within the State.


(c) In the alternative a declaration that such provisions of theAliens" Act 1935as purport to empower the Defendants to deport the Plaintiffs or any of them or otherwise exclude them from the jurisdiction of this Court, are inconsistent with the Constitution and were not carried forward by Article 50.


(d) An Order directing the first-named Defendant to grant to the first and second-named Plaintiffs a visa entitling them to remain within the State for as long as they are members of the family consisting of themselves and the third-named Plaintiff owing parental duties to care for and maintain the third-named Plaintiff.


The facts of this case are not in dispute and set out by Barrington J. in his judgment with his habitual clarity and economy.


From those facts it is clear that the first two Plaintiffs arrived in the State in 1981 and came from London. As such, they were entitled, pursuant to Article 5 of the Aliens Order1946, as amended, to land in the State, but they had an immediate obligation on landing to report in person to an immigration officer or the registration officer of the registration district in which they were staying in order to produce a passport, and were forbidden by the same regulation to remain in the State for more than one month without the leave of the Minister for Justice. It would not appear that they complied with the obligation to report, and they certainly never obtained permission to remain in the State after the period of a month had elapsed. In fact these two Plaintiffs have since that time, except for one short temporary absence in Great Britain, been resident in this State, and are probably correctly described by the learned trial Judge in his judgment as being either knowingly or unknowingly illegally here. They were already married when they arrived, having married in London in the same year of 1981, and apart from the infant Plaintiff named in the title, have, we are informed by Counsel, had two further children born in Ireland since the institution of these proceedings.


It appears probable that the immigration authorities were not directly aware of the presence of the Plaintiffs in this country until some time early in 1984. They apparently became aware because the first-named Plaintiff having obtained anoffer of employment, his prospective employer sought a permit for him to work as an alien from the Minister for Labour. The Minister for Labour consulted with the Department of Justice and as a result officials of the Department of Justice interviewed the Plaintiffs. A decision was apparently then made by such officials with their delegated authority and subsequently ratified or confirmed by the Minister that the first-named Plaintiff would not be permitted to continue to reside in the State and he was requested to make arrangements to leave. No order for his deportation was made, but amongst the reasons which were advanced for refusing him permission to stay was that he was unable to support his family without assistance from the State The reason, apparently, given by the Minister for Labour for refusing him a work permit was that he was an illegal immigrant. However great a dilemma that created for the Plaintiff, that is not the subject matter of the issues which arose in the High Court or which arise in this Court.


It is quite clear from the terms of the pleadings in the High Court and from the terms of the very careful judgment of Barrington J. that thePlaintiffs" case in the High Court was simply confined to a single net and complete issue, and that was an assertion that the third-named Plaintiff, as acitizen of Ireland was entitled to the protection of the constitutional rights to which she was entitled pursuant to Articles 40, 41 and 42 of the Constitution, and that amongst those rights was a right to remain resident within the State and have preserved for her the family of which she was a member as a unit of society within the State and to be parented by her parents within the State. That was asserted as an absolute right which could not be defeated or infringed by any Order made by the Minister pursuant to the Aliens Act of 1935. It was as an alternative to that asserted that if the Act of 1935 purported to vest in the Minister a power to abolish or infringe the constitutional rights of the third-named Plaintiff, which I have shortly outlined, that that provision of the Act of 1935 was inconsistent with the Constitution and could not have been carried forward pursuant to Article 50 of the Constitution. The decision of Barrington J. was that whilst he clearly recognised and accepted the existence of Constitutional rights in the third-named Plaintiff, arising from her citizenship of the State, that on the authorities which he reviewed and in particular, having regard to the decisions in the High Court of Osheku and Ors. v. Ireland and Ors. by Gannon J. 1987 ILRM Pok Sun Shum and Ors. v. Ireland and Ors. 1986 ILRM, CostelloJ.,and his own decision in The State (Bouzagou) v. The Station Sergeant, FitzGibbon Street, 1986 ILRM, that the family and other constitutional rights of the third-named Plaintiff were not absolute and could be restricted by the proper exercise by the Minister for Justice of the powers conferred on him under the Act of 1935. It was on that basis that the learned trial Judge dismissed the Plaintiffs"claim.


When the matter came before this Court on appeal the case really made on behalf of the Plaintiff by Mr. McDowell was not an assertion of the absolute right incapable of being affected by the provisions of the Act of 1935, but rather the assertion of a constitutional right of great importance which could only be restricted or infringed for very compelling reasons.


Notwithstanding the fact that this was not the case which had been made in the Court below, and notwithstanding the fact that it is difficult to fit it comfortably within any of the grounds of appeal which were contained in the Notice of Appeal, in the interests of justice this Court considered this submission and argument and the reply of...

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