Lobe & ors -v- Minister for Justice, Equality & Law Reform, Osayande & anor -v- Minister for Justice, Equality & Law Reform and ors, [2003] IESC 3 (2003)

Docket Number:109/02, 108/02
Party Name:Lobe & ors, Minister for Justice, Equality & Law Reform, Osayande & anor -v- Minister for Justice, Equality & Law Reform and ors
Judge:McGuinness J. / Geoghegan J. / Hardiman J. / Denham J. / Murray J. / Keane C.J. / Fennelly J.
 
FREE EXCERPT

JUDGMENT BY: McGuinness J.

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

Geoghegan J.

Fennelly J.

109/02 & 108/02

BETWEEN

DAVID LOBE, JANA LOVEOVA, ALADAR LOBE (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, DAVID LOBE), LUKAS LOBE (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, DAVID LOBE) JANA LOBE (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, DAVID LOBE) AND KEVIN LOBE (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND, JANA LOVEOVA)

APPLICANTS/APPELLANTS

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

RESPONDENT/RESPONDENT

BETWEEN

ANDREW OSAYANDE AND OSAZE JOSHUA OSAYANDE (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND, FLORA OSAYANDE)

APPLICANTS/APPELLANTS

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

RESPONDENT/RESPONDENT

Judgment of Mrs Justice McGuinness delivered the 23rd day of January 2003

I have had the advantage of reading the judgment about to be delivered by Fennelly J. and I agree with both his reasoning and his conclusions. I propose here to add some comments and considerations of my own.

The facts of the two cases in question have been fully and helpfully set out in the judgments both of the Chief Justice and of Fennelly J. and there is no need to repeat them here.

This is an appeal from the judgment of Smyth J. in the High Court delivered on the 12th April 2002 and his order made on the 12th April 2002 whereby he refused the relief sought by the Applicants in both cases in their judicial review proceedings. In essence the non-national Applicants sought to prevent their deportation as illegal immigrants.

In his judgment Smyth J. provided an admirably clear and succinct analysis of the submissions made by the parties and the matters which were, and which were not, in issue between them. It is, I consider, useful to set out that analysis here (from page 39 of the judgment onward):-

"The Legal Issues Notwithstanding the very extensive range of reliefs sought or the elaborate grounds advanced in the documentation, the case on presentation to the Court reduced itself to two broad issues:-(a) Constitutional, and

(b) Dublin Convention.The Constitutional Issue1. For ease of reference under this heading, Kevin Lobe and Osaze J. Osayande will be referred to as 'the Irish-born child'; the Lobe family and Osayande family will for convenience be referred to as 'the family'.

  1. The rights invoked in these proceedings by the Applicants are:-

    (i) those of the citizen, the Irish-born child as (a) an individual and (b) member of a family unit; and

    (ii) those of the family.

  2. The constitutional provisions relied upon were:-

    (A) Article 2, which provides:-"It is the entitlement and birthright of every person born on the island of Ireland, which includes its island and seas, to be part of the Irish nation. This is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland. Furthermore, the Irish nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage." The contention on behalf of the Irish-born child is that to be part of the Irish nation must involve an entitlement to live to be reared and to be educated in Ireland.(B) Article 40.3.1, which provides:-"The State guarantees in its laws to respect and, as far as practicable by its laws, to defend and vindicate the personal rights of the citizen." The contention on behalf of the Irish-born child is that amongst the personal rights of the citizen is the right to reside in Ireland. That, where the citizen is a minor and unable because of that fact to make the decision to so reside, it is the parents of that child who are entitled, prima facie, to make that decision and to exercise that right for and on behalf of the child.

    In respect of both (A) and (B), the Respondent accepts that:-

    (i) the Irish-born child is a citizen;

    (ii) it is not possible to make a Deportation Order against an Irish citizen;

    (iii) there is a prima facie entitlement of the parents to make a decision on behalf of the Irish-born child to reside within the State.

    (C) Article 41.1.1 which provides:-"The State recognises the Family as the natural primary and fundamental unit group of society, and as a moral institution possessing inalienable and imprescriptible rights antecedent and superior to all positive law."

    Article 41.2:-

    "The State, therefore, guarantees to protect the Family in its Constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State." The contention on behalf of the family is that it is a constitutionally recognised family and that it has rights as a family by virtue of the fact that comprised in the family unit there is an Irish-born child, who is a citizen. The Irish-born child was referred to by Mr Shipsey as 'the anchor' which connects and keeps connected to Ireland or the State the families of non-nationals. The Respondent did not dissent from the submission made on behalf of the family that:-(a) it is not legally permissible to ignore the constitutional rights which derive under Article 41 in respect of a family that has one member who is an Irish citizen;

    (b) every Irish citizen has a right to membership of a family;

    (c) every Irish citizen has a right to have that family respected under Article 41 of the Constitution; and

    (d) the family and family rights have a very special position under the Constitution.(D) Article 42, which provides:-'1. The State acknowledges that the primary natural educator of the child is the family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.2. Parents shall be free to provide this education in their homes or in private schools or in schools recognised and established by the State.

  3. - 10 The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.

    - 20 The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.

  4. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.

  5. In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State, as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard to the natural and imprescriptible rights of the child."

    The contention on behalf of the family is that:-

    (i) it is the family not the parents that is regarded as the primary and natural educator of the child, it is a right which attaches to the family not to the parents;

    (ii) the family comprises the parents and the children within the family;

    (iii) the guarantee would be meaningless if the State could deport the parents of Irish children and thus effectively abdicate all responsibility which the State could exercise over those parents in respect of the education and welfare outside of the State;

    (iv) the mandatory obligation of the State under Article 42.3.2, as guardian of the common good, cannot be fulfilled by deporting the parent(s).The Respondent did not dissent from submissions (i) and (ii) aforesaid, bit did not agree that (iii) and (iv) were a consequence of giving effect to Deportation Orders made by the Respondent.

    Both parties agreed with the law as expressed by Finlay CJ in Re J.H. [1985] IR 375 (as referred to in the Supreme Court decision of the Northwestern Health Board v HW and CW unreported 8th November 2001, per Keane CJ, at p.40 of his judgment, and at p.30 of the judgment of Hardiman J), that an infant had, in addition to the rights of every child, rights under the Constitution as a member of the family, which he defined as follows:-"(a) to belong to a unit group possessing inalienable and imprescriptible rights antecedent and superior to all positive law (Article 41.1);

    (b) to protection by the State of the family to which it belongs (Article 41.2); and

    (c) to be educated by the family and to be provided by its parents with religious, moral, intellectual, physical and social education (Article 42.1)"

    The argument in the High Court, as in this Court, turned in the main on the interpretation and analysis in the case of Fajujonu v Minister for Justice [1990] 2 IR 151, to which I shall refer in detail later. The learned trial judge held that the reasons given by the Respondent Minister for refusing permission for the non-national members of the Lobe family and for Mr Osayande to continue to reside in this country met the requirements set by this Court in the Fajujonu case and that the Minister was entitled to make the relevant deportation orders.

    The Rights in Issue

    The two children, Kevin Lobe and Osaze J. Osayande, are citizens of Ireland both in accordance with Statute and in accordance with Article 2 of the Constitution. The children and their parents also have rights as families; these rights arise under Articles 41 and 42 of the Constitution. The children's rights arising from their citizenship, which are protected under Article 40.3 of the Constitution, are not necessarily absolute rights but their right to be citizens is an absolute right and the Respondent accepts that they cannot, as persons, be deported. The rights of the family under Articles 41 and 42 are important and powerful rights but are not absolute; this is clear both from Article 42.5 itself and from...

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