M v Minister for Justice and Equality

JurisdictionIreland
Judgethe Chief Justice
Judgment Date07 March 2018
Neutral Citation[2018] IESC 14
CourtSupreme Court
Docket NumberRecord No. 2017 No. 61,[S.C. No. 61 of 2017]
Date07 March 2018

[2018] IESC 14

THE SUPREME COURT

Clarke C.J.

Clarke C. J.

O'Donnell Donal J.

McKechnie J.

MacMenamin J.

Dunne J.

O'Malley Iseult J.

Finlay Geoghegan J.

Record No. 2017 No. 61

Between/
I.R.M, S.J.R.

and

S.O.M. (A minor suing by her Mother and Next Friend S.J.R.)
Applicants/Respondents
and
The Minister for Justice and Equality, Ireland

and

the Attorney General
Respondents/Appellants

Deportation – Constitutional position of the unborn – Constitutional interpretation – Appellants seeking revocation of deportation order – Whether the first appellant was required, as a matter of law, to have regard to the position of the third respondent while unborn as a factor to be taken into account in the deportation revocation application under consideration

Facts: In 2008, a deportation order was made against the first respondent. In 2015, an application was made to the first appellant, the Minister for Justice and Equality, seeking to revoke that deportation order. The basis on which it was asserted that there was a sufficient change in circumstances to warrant the Minister taking a different view on deportation stemmed from the relationship between the first and second respondents and in particular the fact that they were due to have a child, the third respondent. The Minister made no decision regarding the application to revoke. The first respondent sought an injunction preventing his deportation, which injunction was granted by the High Court (Mac Eochaidh J). The High Court (Humphreys J) made a declaration that the Minister was obliged to consider, as part of the application to revoke, the prospective position of the third respondent. An appeal was brought to the Court of Appeal raising a number of grounds. However, placing reliance on s. 9 of the Court of Appeal Act 2014, the Minister and the other appellants, the State, sought leave to bring a leapfrog appeal to the Supreme Court in respect of some of the broader issues which had been the subject of the judgment of Humphreys J in the High Court. It was said that those issues were of particular importance and urgency. Leave was granted. The issues were the following: (i) whether the Minister was required, as a matter of law, to have regard to the position of the third respondent while unborn as a factor to be taken into account in the deportation revocation application under consideration; (ii) whether, in addition, the undoubted constitutional rights which the third respondent would enjoy as an Irish born citizen child when born were also matters which required to be taken into account; (iii) whether, as the trial judge in effect determined, the unborn enjoy a wide range of constitutional and other rights independent of the right to life guaranteed by Article 40.3.3 of the Constitution as inserted by the Eighth Amendment; (iv) whether, as again the trial judge determined, the term “any children” to be found in Article 42A of the Constitution includes the unborn; and (v) whether it is necessary, as found by the trial judge, to reassess the constitutional rights of families not based on marriage.

Held by Clarke CJ that: (i) the Minister is obliged to consider the fact of pregnancy of the partner of the proposed deportee as a relevant factor in any decision to revoke a deportation order and is obliged to give separate consideration to the likely birth in Ireland of a child of the potential deportee; (ii) the Minister is obliged to take account of the fact that an Irish citizen child will acquire on birth constitutional rights which may be affected by deportation; (iii) it is not the case that the Minister, having considered these matters, is precluded from refusing to revoke the deportation order; (iv) the decision of the High Court on this aspect of the case was correct and the declaration made is upheld; (v) neither the common law cases and statutory provisions, nor the pre and post Eighth Amendment cases relied on, when analysed and understood, support the High Court‘s conclusions that the unborn possesses inherent constitutionally protected rights other than those expressly provided for in Art. 40.3.3; (vi) the provisions of the two subparagraphs to Article 40.3.3 introduced by the Thirteenth and Fourteenth Amendments support the Court’s view that the present constitutional rights of the unborn is confined to the right to life guaranteed in Article 40.3.3 with due regard to the equal right to life of the mother; (vii) the right to life is not implicated in the deportation (or revocation) decision in this case and the High Court determination in this regard is reversed; (viii) the High Court determination that the unborn is a child for the purposes of Article 42A is also reversed; (ix) it is not necessary to address on this appeal any argument in relation to the status of the family, which it was accepted was not part of the High Court reasoning in coming to this conclusion.

Clarke CJ held that the formal order of the Court would be to dismiss the Minister’s appeal and affirm the declaration made by the High Court.

Appeal dismissed.

Judgment of the Court delivered by the Chief Justice on the 7 th March, 2018
1. Introduction
1.1

The issues with which this judgment is concerned have evolved very significantly since this case started. The legal context in which these proceedings were commenced arose from a deportation order made against the first named applicant/respondent (‘Mr. M.’) in 2008. In 2015, an application was made to the first named respondent/appellant (‘the Minister’) seeking to revoke that deportation order. The basis on which it was asserted that there was a sufficient change in circumstances to warrant the Minister taking a different view on deportation stemmed from the relationship between Mr. M. and the second named applicant/respondent (‘Ms. R.’) and in particular the fact that she and Mr. M. were due to have a child. The child concerned has since been born and is the third named applicant/respondent (‘the third respondent’). The applicants/respondents will for convenience collectively be referred to as the respondents.

1.2

The Minister in fact made no decision regarding the application to revoke. In the absence of an undertaking on the part of the Minister not to deport Mr. M. pending the outcome of the revocation application, Mr. M. sought an injunction preventing his deportation, which injunction was granted by the High Court (Mac Eochaidh J.) ( I.R.M. and anor v. Minister for Justice and Equality and ors (No. 1) [2015] IEHC 873). A contemporaneous application for leave to apply for judicial review was adjourned to be considered at a later date. It is the subsequent decision of the High Court and the declarations made after a so-called ‘telescoped’ hearing which is the subject of this appeal. The case is, therefore, an immigration case. However, having regard to the approach of the trial judge, wider issues concerning the constitutional status of the unborn have come into particular focus. The High Court (Humphreys J.) ( I.R.M. and ors v. Minister for Justice and Equality and ors (No. 2) [2016] IEHC 478) importantly made a declaration that the Minister was obliged to consider, as part of the application to revoke, the prospective position of the third respondent. An appeal was brought to the Court of Appeal raising a number of grounds. However, placing reliance on s. 9 of the Court of Appeal Act 2014, (‘the 2014 Act’), the Minister and the other respondents/appellants (collectively ‘the State’) sought leave to bring a leapfrog appeal to this Court in respect of some of the broader issues which had been the subject of the judgment of Humphreys J. in the High Court. It was said that those issues were of particular importance and urgency. Leave was granted on a basis which will shortly be described which involved some but not all of the grounds of appeal which were put before the Court of Appeal.

1.3

However, in the course of case management of this appeal, it was indicated on behalf of the State that it was not intended to pursue any grounds of appeal other than those in respect of which leave to appeal had been granted. Thus the issues which fall for determination by this Court are confined to the issues in respect of which this Court granted leave. In that context it is appropriate to set out a very brief account of the proceedings and the important questions which they raise.

2. The Proceedings
2.1

The facts and the procedural history together with the judgment of the High Court will be set out and analysed in more detail later in this judgment. However in simple terms this case involves a contention on the part of Mr. M. concerning the factors or considerations which the Minister was required to take into account in deciding on the application which he had made seeking the revocation of the deportation order which had previously been made against him.

2.2

In the course of the proceedings before the High Court, a wide range of issues relating to the constitutional status of the third named respondent came into sharp focus. She was unborn at the time of the application which Mr. M. made to revoke the relevant deportation order and at the time of the commencement of the proceedings. She was later joined as a party when born. The trial judge made a range of significant findings as to the constitutional status of the unborn child.

2.3

It will be necessary to address in greater detail the issues which have thereby arisen for determination by this Court on this appeal. However in summary form they are the following:-

(i) Whether the Minister was required, as a matter of law, to have regard to the position of the third respondent while unborn as a factor to be taken into account in the deportation revocation application under consideration;

(ii) whether, in addition, the undoubted constitutional rights which the third respondent would enjoy as an Irish born citizen...

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