It is well known that a complex body of jurisprudence on the issues surrounding the residency rights of non-citizen parents of Irish-born citizen children has been evolving for a number of years. The landmark 2003 decision of the Supreme Court in AO and DL v MJELR established that non-citizen parents did not have a right to assert a choice of residence on behalf of their Irish citizen children, and that the constitutional right of such children to the company, care and parentage of their parents within the State was not absolute. This right could be outweighed by the State’s sovereign interest in maintaining the integrity of the immigration system.
The clash between the ‘common good’ in the guise of the protection of the immigration/asylum system and the family and other constitutional and ECHR rights of non-citizens has been a recurrent theme of decisions following AO and DL as the courts have sought to strike a balance between individual and family rights and the “rights” of the State in respect of migration control.
The approach of the Irish courts, particularly in cases involving the deportation of parents of Irish citizen children, has been criticised (by Siobhán Mullally and Liam Thornton, among others) for failing to give sufficient weight to the rights and best interests of the children involved, under both Article 41 of the Constitution and Article 8 ECHR.
The situation of parents and children in this position has been improved by the effects of the Zambrano ruling of the CJEU, in which it found that a non-EU national parent of an EU citizen child has a right not to reside within an EU member state, but also to be granted a work permit, so as to ensure that the EU citizen child can benefit from their rights as an EU citizen. (Read Liam Thornton’s post on this, here).
The Zambrano case (together with subsequent case law) and EU law has thus done for Irish citizen children what Irish constitutional law and the application of Strasbourg case law combined could not do – accord primacy to the children’s future genuine enjoyment of the substantive rights attached to their citizenship.
There are some residual cases, however, to which Zambrano decision (together with subsequent CJEU case law) does not apply. These have been found to include situations where there is “no real prospect that the deportation of the applicant would bring about a situation where [the child] would be compelled to leave Ireland or, for that matter, the territory of the Union”. The line of authority going back to AO and DL is, therefore, still active and important and I think that it is timely to review some of the recent cases on this issue. There have been some positive, if slightly confusing, developments in the case law in the past few years.
In EA and PA v MJELR  IEHC 371, the applicants were a Nigerian national and his Irish-born citizen child. The father had a chequered immigration history, having had his asylum application rejected on credibility grounds, his subsidiary protection application rejected because of lies about country of origin, and having returned to Ireland after deportation in 2010 and having lied about living with the mother and son in a family unit. Here, there was no risk to the child’s enjoyment of his European citizenship as the mother had refugee status and was separated from the father, meaning that she would not be following the father to Nigeria if he were deported, and Zambrano did not apply.
Hogan J found that there were “abundant grounds” in this case for suggesting that the substance of the child’s right to the care and company of his father would be denied if his father were to be deported.
Hogan J went on to distinguish AO and DL on the basis that the decision in that case does not concern situations where of necessity the effect of the deportation would be to deprive Irish child of opportunity of any real personal contact with a parent. He acknowledged (referring to Alli v MJELR, among other cases) that there were some inconsistencies in the High Court decisions on this point, which he described as “cross-currents of judicial opinion”. However, in cases such as the present one where the effect of the deportation order would be to split up the family and to deprive the children of the essence of their constitutional rights to the care and company of their parents by “condemning them to a childhood without one of their parents”, his view was that the deportation of the parent would deprive the child of the essence of his constitutional right of the child to the company and care of their parents. He granted an interlocutory injunction restraining the deportation (I have been unable to find any subsequent developments in this case).
In S v Minister for Justice  IEHC 417, Clarke J had come to a similar conclusion in respect of an application to revoke a deportation order and reasoned on the basis, primarily of constitutional rights, that “it would be unreasonable and therefore disproportionate to expect this family to either live forever without the husband and father or to leave Ireland and return to Nigeria”.
These cases appear to signal a more protective attitude to the constitutional rights of the child, in particular, where the family has been settled in Ireland for a long period of time and the citizen children are firmly integrated into the Irish education system. Although the ECHR was not the basis of the reasoning in these cases, this brings Irish case law into closer alignment with ECHR cases such as Nunez v Norway (Judgment of 28 June 2011) which have emphasised the primacy of the best interests of the child, even in cases where the parent has consistently flouted immigration rules.
However, even more recent cases such as FE v Minister for Justice  IEHC 93, in which a proposed deportation on foot of a conviction for sexual offences was found to be a proportionate interference with the rights of the applicant and his several Irish citizen, indicate that the best interests of the children will not always be a determinative factor and that these cases will continue to be fact-dependent and somewhat unpredictable.
Overall, it remains to be seen whether the reasoning of Hogan J in EA will be adopted and expanded in High Court decisions more generally (the facts in this case were very specific, including the fact that the mother was a recognised refugee and thus had no option to return to Nigeria). In turn, this will determine whether this seemingly more rights-based turn in the case law will have a significant impact on ministerial decision-making in this sphere.