Subject: Immigration. Other related subjects: Constitutional law. Family law

*E.H.R.L.R. 43  The Irish Constitution assigns the family an exceptionally important status and role in the “welfare of the Nation and the State”.¹ The rights of the family are described in the constitutional text as being “antecedent and superior” to all positive law, and the family unit as the “natural primary and fundamental unit group of society”.² The centrality of the family unit is presumed to derive from the “natural order” of things.³ The primacy given the protection of the family in Irish constitutional law has frequently been invoked as a marker of Ireland's distinct national identity, most recently in debates on the ratification of the Lisbon Treaty and constitutional reform in the European Union. The “Decision on the concerns of the Irish people on the Treaty of Lisbon”, affirms that nothing in the Lisbon Treaty will affect the protections afforded to the family in the Irish constitution.⁴ Further protections to family life in Ireland have been introduced into Irish law following the enactment of the European Convention on Human Rights (ECHR) Act 2003, which imposes a duty on all “organs of the state” to perform their functions in a manner compatible with the state's obligations under the ECHR.⁵

Despite the apparent strength of these protections, however, migrant families, including those with Irish citizen children, have found themselves at the limits of tolerance extended by the state. Tolerance, rather than a commitment to equality or inclusion, reflects the state's response to migrant family claims and despite commitments to the best interests of the child, the perspective of the child is “strikingly absent” in immigration disputes.⁶ In recent years, the limits of birthright citizenship in securing the right to be “part of the Irish nation”⁷ have been revealed in a series of cases in which the state's interest in immigration control has repeatedly trumped the claims of migrant families and their Irish born children.

The recent case of Alli v Minister for Justice Equality and Law Reform, ⁸ highlights again the anomalous position of an Irish citizen child, with only limited rights to family unity vis-à-vis a child granted refugee status in Ireland or a child seeking to exercise EU rights, both of whom may be more likely to secure the company and care of their parents in Ireland or another EU Member State.⁹ Disputes surrounding the *E.H.R.L.R. 44  claims of migrant families to family unity have turned on the appropriate tests to be applied in balancing the interests protected by art.8 ECHR claims. As in the UK, questions have arisen as to whether an “exceptionality rule” is being applied, ensuring that the state's interest in immigration control almost always trumps the duty to protect family unity and the best interests of the child. This Article explores the Irish Born Child (IBC) '05 scheme, an administrative scheme introduced by the Irish Government following a referendum and constitutional change on citizenship in Ireland. The IBC '05 scheme allowed a limited group of foreign national parents of Irish citizen children to apply for residence in Ireland. While the vast majority of those applications were granted, those that were refused have provoked a series of challenges, raising questions as to the scheme's compliance with the ECHR and the constitutional protection of family and children's rights.

Both the European Court of Human Rights and the Irish courts have repeatedly distinguished between the rights of settled migrants, and those whose presence in the state has been of limited duration only. Such distinctions have also been made when assessing the potential hardship that might be endured upon deportation of a parent and/or de facto deportation of a citizen child.¹⁰ In Strasbourg case-law, greater weight has often been given to the strength of past connections than to the significance of future potentialities, including the potential for a child to realise and enjoy her Convention rights.¹¹ This approach has been followed by the Irish courts. The remarkable ease with which the rights claims of citizen children have been dismissed serves as a stark reminder of the continuing vulnerability of children and the centrality of the state in determining the level of rights protection enjoyed. Citizen children with foreign national parents, despite their status and de jure membership of the polity, have proven as vulnerable as children in other migrant families and on the question of family unity, in some cases, even more vulnerable. To draw on Mae Ngai's evocative phrase, they have proven to be, in the eyes of the state, “impossible subjects”.¹²

Citizenship Reform and the Claims of Migrant Families

The case of Osheku v Ireland ¹³ was one of the earliest cases to examine the right to family life in the context of immigration decisions. The case preceded the enactment of the ECHR Act and primarily concerns the interpretation of the constitutional provisions on fundamental rights. Gannon J., speaking for the High Court, in an oft-quoted statement, defended a quintessentially state-centred view on the limits and scope of fundamental rights. There were, he said, “fundamental rights of the State itself as well as fundamental rights of the individual citizens and the protection of the former may involve restrictions, in circumstances of necessity, on the latter”.¹⁴ How precisely to define those circumstances of necessity and what limits the rights of children and migrant families might impose, has preoccupied the courts in recent times. In Fajujonu v Minister for Justice, ¹⁵ the Supreme Court concluded that a citizen child had a constitutional right to the “company, care and parentage of their parents within a family unit”, and only a “grave and substantial reason associated with the common good”¹⁶ could justify the imposition of restrictions on this right. Particular emphasis was placed on the Fajujonu family's residence for “an appreciable time” within the state. Walsh J., however, while concurring with the majority judgment, placed greater emphasis on the rights of the family as a constitutionally protected unit and the rights of the children *E.H.R.L.R. 45  within that unit. The children in this case, he said, were of tender age, requiring the society of their parents.¹⁷ Walsh J. also noted that deportation proceedings could not be taken against a family that included citizen children, simply because of a family's limited financial resources, particularly where that situation of poverty was induced by the absence of a work permit. Walsh J.'s comments stand in marked contrast to more recent findings of the Irish courts, where limited resources and employment prospects have repeatedly been found to be relevant factors weighing in favour of deportation of a migrant family member, despite the “anchor” of a citizen child.¹⁸

The findings of the Supreme Court and, in particular, the judgment of Walsh J., reflect the cardinal value of citizenship for a child: “the ability to enjoy the company, care and parentage of their parents within a family unit within the State”.¹⁹ Following on from the Fajujonu judgment, applications for residence from foreign national parents of Irish citizen children were routinely granted, despite the often undocumented status of the parents and uncertainly as to the legality of their initial entry and stay within the state. Over the next decade, however, the migration context in Ireland was to change dramatically. At the beginning of 2003, more than 11,500 applications for residence from foreign national parents were pending. As the numbers of families claiming residence rights increased, political pressure to deny these claims grew. Bowing to this pressure, the Minister for Justice, Equality and Law Reform began to refuse or stay applications in late 2002.

These refusals were challenged in the A.O. and D.L. cases before the Supreme Court in January 2003.²⁰ A key question for the Court was whether the state's desire to maintain the integrity of its asylum and immigration systems could justify the deportation of a parent of a citizen child and a denial of the child's right to the care and company of their parents in the state. The applicants argued that only reasons that were specific to the individual case, such as a threat to national security or serious criminal wrongdoing, would be sufficient to meet the requirement of a “grave and substantial reason associated with the common good”, justifying the restrictions imposed. That argument was rejected by the majority of the Supreme Court. Denham J. concluded that the Minister's reasons would depend on the circumstances of each individual case, but could include: “(a) the length of time the family has been in the state; (b) the application of the Dublin Convention; and (c) the overriding need to preserve respect for and the integrity of the asylum and immigration system”.²¹ Hardiman J., also speaking for the majority, noted that general considerations of the common good could include the “statistical pattern of immigration and asylum-seeking”, and the demands imposed on the state's limited resources. The need to preserve respect for the asylum and immigration system was, he said, a “generally applicable open-ended administrative reason”, capable of satisfying the test laid down in Fajujonu, provided that it was considered in the light of the facts of the individual case.²²

Although the case preceded the coming into force of the ECHR Act, the Court, nonetheless, considered arguments relating to the applicants' art.8 rights and drew heavily on the “insurmountable obstacles” test applied in R (Mahmood) v Secretary of State for the Home Department. ²³ Ultimately, the Court concluded that the state's interference with family life in this case met the Convention requirements of proportionality and necessity and pursued a legitimate aim, that of preserving the integrity of the asylum process. In a passage that is striking in its representation of “modern Ireland”, Denham J. contrasted previous waves of immigration to Ireland with the present migration context. The differences encountered by migrants when arriving in the Ireland of today, included those of “the landscape, society and governance”. People *E.H.R.L.R. 46  who migrate to Ireland may arrive, she noted, by many means, but they must “comply with the Constitution and the law”.²⁴ It was also to the Constitution and the law that both dissenting judges, Fennelly J. and McGuinness J. appealed, to highlight the significance of citizenship and the rights of the family unit. Despite the constitutional significance attached to the “imprescriptible rights of the family”, however, these arguments have continued to be marginalised in immigration disputes.

The principles set out in Mahmood, and in the earlier case of Razgar, ²⁵ were subsequently to come under fire in a series of cases before the House of Lords, in which it was argued that the insurmountable obstacles test had led to the application of an “exceptionality rule” by the Court of Appeal, such that cases where the demands of immigration policy were not conclusive, for the purposes of art.8(2), were “truly exceptional”. In Huang ²⁶ and later in EB (Kosovo), ²⁷ Lord Bingham clarified his earlier statements in Razgar, noting that it had not been his intention to import an exceptionality rule into art.8 adjudication processes, but merely to comment on the small number of cases likely to fall outside of the proportionality requirement. The search for a “hard-edged or bright line rule” to apply in the generality of cases was incompatible, he said, with the “difficult evaluative exercise” required by art.8.²⁸ The Irish courts, and the Minister for Justice Equality and Law Reform have continued to rely on the Mahmood principles and the “insurmountable obstacles” test, in examining the art.8 claims of migrant families. How those principles fit with the evaluative exercise required by art.8 and by constitutional protections of the rights of the citizen child and his or her family, have been the subject of recent challenges in the superior courts.

Following the Supreme Court decision in A.O. and D.L. cases, the Department of Justice, Equality and Law Reform ceased the consideration of applications for residency from parents of Irish born children.²⁹ Predictions that the judgment would stem the flow of inward migration to the state failed to materialise. The Government decided, therefore, to impose restrictions on the right to citizenship by birth, a move that required constitutional amendment. In 1998, following peace negotiations and the conclusion of the Good Friday Agreement in Northern Ireland, a new art.2 was inserted into the Irish Constitution,³⁰ giving constitutional recognition to the right to citizenship by birth for the first time.³¹ The coincidence of increasing immigration in Ireland with the Good Friday Agreement and constitutional change was described by the Supreme Court in A.O. and D.L. as an “accident of history”.³² A referendum was held in June 2004, and by a majority of almost four to one, the electorate voted to amend the Constitution, removing the right to citizenship from future generations of Irish-born children who could not demonstrate generations of belonging to the state.³³

The position of migrant families with citizen children born prior to the commencement of the 2004 Act was finally addressed in January 2005, when the Government announced the introduction of the IBC '05 scheme, a new set of procedures to assess residency applications from the almost 11,500 migrant parents with citizen children who had been left in a legal limbo in the wake of the A.O. and D.L cases.³⁴ Announcing *E.H.R.L.R. 47  the introduction of the new proposals, the Minister for Justice, Equality and Law Reform stated that residence would only be granted to those parents who could show that they have “not been involved in criminal activity” and were “willing to commit themselves to becoming economically viable”. A requirement of continuous residency within the state was also included.

The majority of the applications under the IBC '05 scheme have been granted. A small minority, however, have led to refusals and to questions as to the scheme's compliance with art.8 and constitutional rights protections.

Exceptionality or Reasonableness? Balancing Family Life and Immigration Control

In Bode v Minister for Justice Equality & Law Reform, ³⁵ the Supreme Court concluded that ECHR and constitutional rights claims did not have to be considered when assessing applications under the IBC '05 scheme. In a finding that appears to bring into question the application of the ECHR Act to executive functions, the Court found that a decision to grant residency within Ireland on the basis of the IBC '05 Scheme was a mere “gift”, extended by virtue of the benevolent and “generous” exercise of executive power.³⁶ Issues relating to the Convention rights of the applicants were deemed irrelevant and would only arise, in the Court's view, in the context of deportation proceedings that might follow on a refusal of residency.³⁷ Bode was one of a series of test cases on the IBC '05 Scheme to come before the courts. The second applicant in this case, the father of a citizen child (the first applicant), was denied his application for residence under the Scheme because of a failure to demonstrate “continuous residence” in the state following his child's birth.

The Supreme Court's reasoning on the relevance of ECHR and constitutional rights claims is problematic. Unlike other organs of the state, such as the office of the President, or the Houses of the Oireachtas, Government Ministers exercising executive functions are not excluded from the scope of the ECHR Act, regardless of whether the exercise of executive function in question is mandated by statute or not.³⁸ Given the significance of the rights and privileges that come with residence, and the importance of a child's claim to the company, care and parentage of their parents within the state, it is surprising that the Court viewed human rights arguments to be irrelevant and “misconceived”.³⁹ While the introduction of the IBC ’05 scheme, which has been noted by some commentators to be akin to an amnesty measure, may not have been required by the Constitution or the ECHR, the exercise of power pursuant to the scheme cannot be said to be exceptional, such that it is falls outside of potential constitutional or Convention challenges. In contrast with the findings of the Supreme Court, Finlay Geoghan J. in the High Court, found that the failure to consider the citizen child's personal rights and right to private life was a breach, both of the Constitution (art.40.3.1°) and art.8 ECHR. Notably, she defined the child's right to private life under art.8 as including constitutionally protected personal rights. Citing Sisojeva v Latvia, ⁴⁰ Finlay Geoghan noted that the right to private life gave rise to positive obligations on the part of the state to ensure the effective exercise of the child's rights. Following a line of reasoning, which bears some similarity to that followed by the European Court of Justice in Zhu and Chen, ⁴¹ she recognised the significance of the parents' residence within the state to the protection of the children's effective enjoyment of their art.8 rights. The *E.H.R.L.R. 48  rights guaranteed by art.8, she said, must be “practical and effective”. Given the tender age of the children in the test cases before the Court, she concluded that the state had a positive obligation to grant permission to remain in the state on the IBC '05 application.

The detailed evaluative exercise undertaken by Finlay Geoghan J. and her reading of the state's positive obligations under art.8, did not, however, find favour with the Supreme Court. While the Supreme Court might have disagreed with the relevance of Sisojeva, or sought to limit the scope of positive obligations recognised, it is at least arguable that the child's rights to private life were engaged, and should not be disadvantaged vis-á-vis other children, similarly situated, because of a break in a parent's continuous residence. It is difficult to defend the Court's suggestion that Convention rights were not engaged in the decision-making process on residence applications and that the Act, therefore, did not apply. In Kutzner v Germany ⁴² the European Court of Human Rights noted that the boundaries between the state's positive and negative obligation under art.8, “do not lend themselves to precise definition”.⁴³ The applicable principles were presumed to be similar. In both contexts, the Court noted, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole. And, in both contexts, the Court recognised that the state would enjoy a certain margin of appreciation. As Finlay Geoghan J. noted in her judgment, at a minimum, this reading of art.8 would require the state to consider whether the citizen child's right to respect for her or his private life under art.8, necessitated the granting of permission to her parents to remain. Making that decision would, following Kutzner, require striking a fair balance between the rights of the individual child and the state's interest in migration control, and following üner, would require consideration of the best interests of the child. The Supreme Court, however, recognised only the negative obligations arising from art.8 and so limited the scope of its application under the ECHR Act, to consideration of the rights claims arising in the context of deportation. This is a more limited view than has been taken by the European Court of Human Rights, where art.8 has increasingly been recognised as giving rise not only to a positive right not to expel a non-national in some circumstances, but also, following Ciliz v Netherlands, a positive right to advance family life, albeit within a certain margin of appreciation enjoyed by the state.⁴⁴

Subsequent case-law in Ireland has addressed the art.8 rights in the context of deportation proceedings, and it is at this point only that constitutional and Convention rights claims have been deemed relevant. In Oguekwe, the Supreme Court found that when determining whether or not a proposed deportation could be justified, given the interference with private and family life, “all the circumstances of the case” must be considered including whether or not there is “a substantial reason associated with the common good” requiring the deportation of a foreign national parent.⁴⁵ The Court, drawing on a long line of Strasbourg case-law, found that the personal circumstances of the Irish born child and foreign national parents must be considered, including whether it would be reasonable to expect family members to move to the country of origin of the applicant. A detailed list of the relevant issues to be considered in weighing the competing interests was set out by the Court.⁴⁶ Again, the Court cited with approval the principles laid down in Mahmood and the insurmountable obstacles test,⁴⁷ though noting that the case before it included the specific rights claims of a citizen child. There is little to suggest, however, that the child's constitutionally protected entitlement and birthright to be “part of the Irish Nation”, weighed heavily in the Court's deliberations. Contrary to the findings of the High Court, the Supreme Court found that a comparative analysis of the educational and development opportunities that would be available to a child following deportation of his *E.H.R.L.R. 49  or her family was not required.⁴⁸ This is despite the constitutionally guaranteed rights to free primary education and the enjoyment of a range of personal rights, including a right to bodily integrity.⁴⁹ The Court found that the deportation decision must be “proportionate and reasonable on the application as a whole”, and not “on the specific factor of comparative educational systems”.⁵⁰

The Court's reasoning in Oguekwe and other cases reveals a reluctance to examine the significance of an ongoing connection to the state for a citizen child, in terms of their life opportunities, access to education and health care, and membership of the polity. The limited protections given to the citizen child have been evident in subsequent case-law, most recently in Alli, ⁵¹ where the continuing application of the “insurmountable obstacles” test was challenged. Counsel for the applicants in Alli, argued that an exceptionality rule was prevailing, such that migration control concerns consistently trumped the rights to private and family life of migrant parents and their children. Citing Oguekwe and recent case-law of the House of Lords, it was argued that a “reasonableness” test should instead be applied to determine the proportionality of a potential interference with private and family life. The Court, however, dismissed this argument, concluding that there was no difference in substance between the “insurmountable obstacles” test applied by the European Court of Human Rights, as distilled in Mahmood, and the test set out in Oguekwe. The clarifications provided by the House of Lords in EB (Kosovo) and Huang did not change the application of the Mahmood principles in Irish law, in the Court's view, as an exceptionality rule had never been applied. This view was subsequently confirmed in Asibor ⁵² and in Igiba, ⁵³ where Clarke J. concluded that to ask whether there were any insurmountable obstacles to the family returning with the deportee was “essentially the same” as to ask whether it would be reasonable to expect the family members to establish family life elsewhere.⁵⁴ The reasonableness test did not, in the Court's view, establish a lower threshold for applicants, there was “no difference of any substance” between the two tests.⁵⁵ This conclusion stands in contrast to the comments of migration law observers in the UK, who have pointed to Huang and EB (Kosovo) as marking a “diminution of Mahmood 's influence”⁵⁶ and an end to the “insurmountable obstacles” test, as per Mahmood. As yet, we have not seen a comparable diminution of influence in the Irish courts.

Disputes have also arisen as to what constitutes a “substantial reason” that would be sufficient to justify deportation of a foreign national parent and interference with art.8 and constitutional rights claims. In Alli, it was argued that the detailed evaluative exercise required when assessing the competing interests at stake could not be satisfied by appealing to the state's general interest in immigration control.⁵⁷ Raising the question of what significance should be attached to a child's constitutional and Convention rights, counsel for the applicants argued that if the child's rights were to be given “real meaning”, then the deportation of a parent could only occur where there was “a very compelling reason that was applicant-specific”,⁵⁸ such as serious criminality or a threat to state security. The High Court concluded, however, that general reasons of immigration control associated with the common good were sufficiently “substantial” to justify deportation, so long as a fact-specific analysis had been undertaken and the competing interests of the state and the deportee duly weighed. This view was again confirmed in Igiba, where the Court found that *E.H.R.L.R. 50  there was no obligation to identify an applicant-specific reason as such.⁵⁹ Though citizen children's rights claims may have been set “at a very high level”,⁶⁰ they were not high enough to outweigh the state's immigration control concerns. Questions as to the proportionality of the state's response must be raised, however. In Berrehab v the Netherlands, ⁶¹ the European Court of Human Rights reiterated its established case-law that an interference with art.8 rights must correspond to a pressing social need and must be proportionate to the legitimate aim pursued. It is questionable how proportionate the Irish Government's interference with private and family life is, in the circumstances of Alli and other cases arising under the IBC '05 scheme, given that the scheme applies only to a limited category of persons. It is more difficult therefore to identify a “pressing social need” related to the state's interest in immigration control that would be sufficient to justify an interference with art.8 rights in such cases.

It should also be noted that Ireland has ratified Protocol No.4 to the European Convention on Human Rights, which includes a prohibition on states subjecting a national to an individual or collective act of expulsion. The Irish Courts have consistently taken the position, following on from L. and O.. cases,⁶² that the deportation of family members of a citizen child does not entail an expulsion of one of its own nationals. Rather, the question to be considered by the courts, is what is required by the state to safeguard the limited right of the child to the company, care and parentage of her or his parents. This constitutionally protected right, does not, the courts have found, entail protecting a choice of residence on the part of the family unit, following ECHR art.8 case-law on this point. The value of citizenship, and the de facto deportation of a citizen child, was something, however, that troubled Fennelly J., in his dissenting judgment in the L. and O.. cases.⁶³ Following a brief analysis of art. 8 case-law, he distinguished the Abdulaziz ⁶⁴ and Gül ⁶⁵ cases from those before the Court, given the added factor of the presence of a citizen child. His view, however, did not prevail.

“Cherishing all the Children of the Nation Equally”: and the Child's Best Interests?

What is striking in the series of cases following on from Bode is the relative absence of any detailed assessment of the best interests of the child, as weighty considerations constraining the Court's decision-making process. Although no exceptionality rule is said to apply, trumping the state's interest in immigration control appears to be an almost insurmountable task. In assessing the proportionality of a decision to deport a migrant family member, parental status and behavior, particularly in matters of immigration, weigh heavily in the balancing process. Citizenship, though historically presumed to denote the “social fact of attachment” and a “genuine connection of existence, interests and sentiments”,⁶⁶ is now viewed as little more than a relatively fragile link, tenuous and suspect. Of greater weight is the duration of stay and residence of the citizen child and her or his family. Drawing on the jurisprudence of the European Court of Human Rights, the Irish courts have repeatedly distinguished between the rights claims of “settled migrants” and those whose presence in the state is merely tolerated, pending a decision on status. Included within the category of those who are extended only a minimum of tolerance are families with Irish citizen children.

Given that the right to citizenship by birth was removed, the category of migrant families in situations similar to Oguewke or Alli, comprises a defined and limited number. Against this background, the state's interest in immigration control would not seem to be unduly threatened by securing the citizen child's *E.H.R.L.R. 51  right to enjoy the “company, care and parentage of their parents within a family unit within the State”.⁶⁷ If the child's best interests were to be given much significance, we might presume that it would not be unduly difficult to outweigh the threat posed to immigration control in such cases, particularly where a child has spent the first five to six years of their lives in the country of their birth. In Asibor, Clarke J. noted that a child's vacation visit to her country of origin, Nigeria, and meeting with her grandmother and other relatives, was sufficient to establish links, easing the disruption that might be caused by leaving Ireland.⁶⁸ That a child's claims can be dismissed so readily highlights the lack of weight given by the courts to those claims. It also highlights the fragility of transnational families' presumed attachments to the country of citizenship. The very phenomena that have been heralded by some as lessening the significance of territorial borders--communications across borders, greater mobility, continuing attachments between “here” and “there”--are invoked here to reassert border control, to draw a “bright line” between the rights of settled citizens and those suspect citizens, those with continuing transnational affiliations. Immigrants have always faced the problem of suspect allegiances.⁶⁹ Here citizen children, without the generations of belonging that can be claimed by some, are also suspect, more so if connections “back home” are maintained.

The series of cases that has followed on Bode stands in marked contrast to the kind of rights analysis that we saw applied by Finlay Geoghan J. in the High Court and earlier, by Walsh J. in Fajujonu. Though not subsequently followed by the Irish courts, Finlay Geoghan J.'s findings highlight the transformative potential of a stringent art.8 analysis incorporating the specific rights claims and best interests of a child. In Oguewke, the Supreme Court drew on the jurisprudence of the European Court of Human Rights, particularly the criteria laid down in Boultif, ⁷⁰ in defining the factors to be addressed when assessing the proportionality of a threatened deportation. A factor that has persistently weighed against art.8 claims of migrants has been the uncertainty attaching to their status and the knowledge of such uncertainty when family life was established.⁷¹ No such uncertainty can be said to weigh against the child's best interests, however, given a child's lack of knowledge and indeed lack of choice in the establishment of family life.

In Üner, ⁷² the European Court highlighted the relevance of the best interests of the child to assessments of competing interests under art.8, noting that the requirement to consider a child's best interests was already implicit within the Boultif criteria. As yet, there is only limited evidence that the child's perspective is to the fore in such best interests determinations as do take place. In Oner v the United Kingdom, ⁷³ for example, the Court noted that although the applicant normally spent two to three days a week with his eight year old daughter, it would be possible to maintain ongoing contact by telephone and email from Turkey, and there was nothing to prevent her from visiting Turkey. Of particular relevance to jurisprudence of the Irish courts following on from the IBC '05 scheme, is the case of Rodriguez da Silva and Hoogkamer v the Netherlands,⁷⁴ in which the Court considered whether the Dutch authorities were under a duty to allow a Brazilian national to reside in the Netherlands, with her Dutch national daughter so as to maintain *E.H.R.L.R. 52  family life in the territory of the Netherlands. Citing Ahmut, ⁷⁵ the Court held that the case raised the question as to whether the state had failed to comply with a positive obligation to protect private and family life.⁷⁶ The Court again, in that case, cited the need to strike a “fair balance” between the competing interests of the individual and the community as a whole, and noted that where a family relationship was formed in circumstances where the parties involved were aware of the precarious immigration status of one or both, then it would only be in the “most exceptional circumstances”, that the removal of one party would constitute a violation of art.8. However, despite the illegality of the mother's presence in the Netherlands, the Court concluded that her removal would have far-reaching consequences for her responsibility as a mother and on her family life with her daughter, and that it was in the child's best interests that her mother remained in the Netherlands.

The weight given to the child's best interests and to the mother's role, as well as to the connections with paternal grandparents is striking in this case, particularly given that the mother's stay in the Netherlands had at all times been illegal. Indeed the Court criticised the Dutch authorities for indulging in what it viewed as “excessive formalism”, by attaching so much importance to this point,⁷⁷ though it distinguished the case from other situations involving undocumented migrants, because of the possibility that the first applicant might reasonably have been expected to be granted lawful residence while the relationship with the child's father was continuing. The accusation of “excessive formalism” might equally be levied at the Irish authorities in the IBC '05 cases, where undue weight appears to have been placed on factors such as interruptions in periods of residence, in circumstances where a person might otherwise have reasonably expected that lawful residence would be possible.

The Irish courts have upheld the deportation of migrant family units with citizen children, postponing the child's right to claim full membership of the polity. This de facto suspension of rights raises questions as to how integration and inclusion of such children will proceed in future years, should they chose to exercise rights to return and reside in the country of their birth. The Alli case highlighted the less favorable treatment afforded to an Irish citizen child with foreign national parents, as compared with a child granted refugee status and entitled to family reunification, or a child seeking to exercise EC rights, following the Zhu and Chen case. The anomalous position of the citizen child did not trouble the High Court, however. Clark J. noted the specific risks faced by a refugee child, preventing reunification with parents in the country of origin. The comparison with the EU citizen child in Chen was also considered unpersuasive, as the derivative rights recognized in Chen were presumed to attach to the primary carer only.⁷⁸ It is not clear, however, that the European Court of Justice's findings were limited in this way, given the willingness of both the Advocate General and the Court to acknowledge the child's rights in this case, and the support required to render them effective. Securing the continued presence of the EU citizen child's family unit might equally be considered essential to the effective enjoyment of the child's rights. As the High Court noted in Alli, the exercise of EU rights, as recognized by Chen, is dependent on demonstrating that a child and his or her family member will not be a “burden” on the Member State's resources. Nonetheless, it remains the case that such a child's right to family unity is potentially granted greater protection under EC law than under constitutional or ECHR law.

*E.H.R.L.R. 53  Conclusion

International and European human rights instruments provide extensive protections for children, reflecting the expansion of protections in what Louis Henkin has described as the “Age of Rights”.⁷⁹ The protections provided, however, are of limited utility only, frequently being unenforceable in practice or lacking the necessary political support to ensure their effective implementation. The “right to have rights”⁸⁰ that is presumed to come with citizenship status, (and sometimes without), is proven illusory or, at best, fragile, for children with parents of suspect immigration status. In A.O. and D.L., Keane C.J. distinguished the nature of citizenship claims enjoyed by children and adults. While an adult citizen had an automatic right to reside in the state, he said, the position of minors was “significantly different”.⁸¹ The right to reside within the state could not vest in a minor until she was capable of exercising such a right. Rather than looking at what steps might be taken by the state to ensure the effective enjoyment of a citizen child's rights, the child's very dependency and vulnerability was invoked to justify a de facto suspension of rights and constructive deportation of the citizen child.

The demise of the significance of citizenship status as a prerequisite to rights entitlement reflects the cosmopolitan roots and promise of human rights law. This demise, however, has not always heralded greater protection of rights, as the series of cases reviewed here reveals. The very movements that have brought into question the continuing relevance and significance of citizenship status (migration, globalisation, cosmopolitanism), have provoked a push-back from states, such that the citizen child's rights are “tainted” by the immigration status of her parents and subject to a utilitarian calculus that is, at times, breathtaking in the limited value placed on the child's educational, health and life opportunities.

See art.41, Constitution of Ireland.

2.

See art.41, Constitution of Ireland.

3.

See Northants Co Council v ABF [1982] I.L.R.M. 164.

4.

A Decision on the concerns of the Irish people on the Treaty of Lisbon, annexed to the European Council Conclusions of June 18 and 19, Doc. ref. 11225/2/09 Rev 2.

5.

See ECHR Act s.3. For a comprehensive analysis of the Act, see F. De Londras and C. Kelly, European Convention on Human Rights Act: Operation, Impact and Analysis (Roundhall Thomson: Dublin, 2010).

6.

J. Bhabha, “The Citizenship Deficit: On being a citizen child” (2003) 46 Development 8. J. Smyth, “Irish Citizen Children Effectively Expelled”, Irish Times December 4, 2010.

7.

Following a referendum and constitutional amendment, the revised art.2 of the Constitution provides that: “It is the entitlement and birthright of every person born in the island of Ireland, […], to be part of the Irish Nation”.

8.

Alli (a minor) v MJELR [2009] IEHC 595, December 2, 2009; U. & Ors v MJELR [2010] IEHC 371, September 29, 2010.

9.

See Refugee Act 1996 s.18, protecting the right to family reunification, and Zhu and Chen v Secretary of State for the Home Department, C-200/02 [2005] Q.B. 325, ECJ, October 19, 2004.

10.

See Alli (a minor) v MJELR [2009] IEHC 595, December 2, 2009.

11.

See Al-Nashif v Bulgaria (2003) 36 E.H.R.R. 655, and üner v the Netherlands (2007) 45 E.H.R.R. 14. See generally: C Steinorth, “üner v The Netherlands: Expulsion of Long-term Immigrants and the Right to Respect for Private and Family Life” (2008) 8 European Human Rights Law Review 185; T Spijkerboer, “Structural Instability: Strasbourg Case Law on Children's Family Reunion” 11 European Journal of Migration and Law 271; C Murphy, “The Concept of Integration in the Jurisprudence of the European Court of Human Rights” 12 European Journal of Migration and Law 23.

12.

M.M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton University Press, Princeton, N.J., 2004).

13.

Osheku v Ireland [1986] I.R. 733.

14.

Osheku v Ireland [1986] I.R. 733 at 746.

15.

Fajujonu v Minister for Justice [1990] 2 I.R. 151; [1990] I.L.R.M. 234.

16.

Fajujonu v Minister for Justice [1990] 2 I.R. 151 at 163.

17.

Fajujonu v Minister for Justice [1990] 2 I.R. 151 at 164.

18.

See generally: J Bhabha, “The ‘Mere Fortuity’ of Birth? Are Children Citizens?” in (2004) 15(2) Differences: A Journal of Feminist Cultural Studies 91.

19.

See Alli (a minor) v MJELR [2009] IEHC 595, December 2, 2009.

20.

L. and O. v Minister for Justice, Equality and Law Reform [2003] 1 I.R. 1.

21.

L. and O. v Minister for Justice, Equality and Law Reform [2003] 1 I.R. 1.

22.

L. and O. v Minister for Justice, Equality and Law Reform [2003] 1 I.R. 1.

23.

R (on the application of Mahmood) v Secretary of State for the Home Department [2001] 1 W.L.R. 840.

24.

See L. and O. v Minister for Justice, Equality and Law Reform [2003] 1 I.R. 1.

25.

R (on the application of Razgar) v Secretary of State for the Home Department (No.2) [2004] 2 A.C. 368.

26.

Huang v Secretary of State for the Home Department [2007] 2 A.C. 167.

27.

EB Kosovo v Secretary of State for the Home Department [2008] 3 W.L.R. 178.

28.

EB (Kosovo) v Secretary of State for the Home Department [2008] 3 W.L.R. 178, per Lord Bingham at 184.

29.

Department of Justice, Equality and Law Reform, “Notice to Non-National Parents of Irish Born Children”, July 18, 2003.

30.

See Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland (British-Irish Agreement) and the Agreement reached in Multi-Party negotiations (Belfast Agreement), concluded April 10, 1998, reproduced in (1998) 37 I.L.M. 751.

31.

See Nineteenth Amendment to the Constitution Act 1998. The full text of art.2 of the Constitution of Ireland (as amended) reads: “Article 2: It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish Nation. That 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.”

32.

See Lobe and Osayande v Minister for Justice, Equality and Law Reform [2003] I.E.S.C. 3 (January 23, 2003), per Fennelly J. para.451.

33.

The Irish Nationality and Citizenship (Amendment) Act 2004, enacted following the referendum, provides that children born on the island of Ireland, to foreign national parents, will acquire citizenship by birth only if one parent has been lawfully resident or was entitled to be resident, for a period of three years or more.

34.

Department of Justice, Equality and Law Reform, “Minister announces details of revised arrangements for residency”, January 14, 2005.

35.

Bode v Minister for Justice, Equality & Law Reform [2007] I.E.S.C. 62, December 20, 2007.

36.

Bode v Minister for Justice, Equality & Law Reform [2007] I.E.S.C. 62, December 20, 2007, para.22.

37.

Bode v Minister for Justice, Equality & Law Reform [2007] I.E.S.C. 62, December 20, 2007, para.24.

38.

See ECHR Act 2003 s.2.

39.

Bode v Minister for Justice, Equality & Law Reform [2007] I.E.S.C. 62, December 20, 2007, para.24.

40.

Application No.60654/00, judgment of January 15, 2007, Grand Chamber.

41.

See Refugee Act 1996 s.18, protecting the right to family reunification, and Zhu and Chen v Secretary of State for the Home Department, C-200/02 [2005] Q.B. 325, ECJ, October 19, 2004.

42.

(2002) 35 E.H.R.R. 653.

43.

(2002) 35 E.H.R.R. 653 at [62].

44.

Ciliz v Netherlands [2000] 2 F.L.R. 469; D. Stevens “Asylum-seeking Families in Current Legal Discourse: A UK Perspective” (2010) 32(1) Journal of Social Welfare and Family Law 5-22 at 14.

45.

Oguekwe v Minister for Justice Equality and Law Reform [2008] 3 I.R. 795; [2008] I.E.S.C. 25; see also Dimbo v Minister for Justice Equality and Law Reform [2008] I.E.S.C. 26.

46.

Oguekwe v Minister for Justice Equality and Law Reform [2008] 3 I.R. 795, per Denham J. at [31].

47.

R (on the application of Mahmood) v Secretary of State for the Home Department [2001] 1 W.L.R. 840, per Lord Phillips M.R. at [55].

48.

R (on the application of Mahmood) v Secretary of State for the Home Department [2001] 1 W.L.R. 840, per Lord Phillips M.R. at [26].

49.

See art.42, Constitution of Ireland, and Ryan v Attorney General [1965] 1 I.R. 294, recognising the right to bodily integrity, as a component of the personal rights protected by art.40.3.

50.

R (on the application of Mahmood) v Secretary of State for the Home Department [2001] 1 W.L.R. 840, per Lord Phillips M.R. at [26].

51.

Alli (a minor) v MJELR [2009] IEHC 595, 02 December 2, 2009.

52.

Asibor (a minor) v MJELR [2009] IEHC 594.

53.

Igiba (a minor) v MJELR [2009] IEHC 593.

54.

Igiba (a minor) v MJELR [2009] IEHC 593, para.20.

55.

Igiba (a minor) v MJELR [2009] IEHC 593, para.20.

56.

D. Stevens “Asylum-seeking Families in Current Legal Discourse: A UK Perspective” (2010) 32(1) Journal of Social Welfare and Family Law 5-22 at 17. See also Chikwamba v Secretary of State for the Home Department [2008] UKHL 40.

57.

Alli (a minor) v MJELR [2009] IEHC 595, 02 December 2, 2009

58.

Alli (a minor) v MJELR [2009] IEHC 595, 02 December 2, 2009, para.7.

59.

Igiba (a minor) v MJELR [2009] IEHC 593, para.21.

60.

Igiba (a minor) v MJELR [2009] IEHC 593, para.7.

61.

Berrehab v Netherlands (App. No.10730/84), judgment of June 21, 1988, para.28.

62.

Lobe v Minister for Justice, Equality and Law Reform [2003] I.E.S.C. 3, January 23, 2003.

63.

Lobe v Minister for Justice, Equality and Law Reform [2003] I.E.S.C. 3, January 23, 2003, para.551.

64.

Abdulaziz v United Kingdom (1985) 7 E.H.R.R. 471.

65.

Gül v Switzerland (1996) 22 E.H.R.R. 93.

66.

See Nottebohm Case (Lichtenstein v Guatemala ) I.C.J. Reports 1955, p.4.

67.

J. Bhabha, “The Citizenship Deficit: On being a citizen child” (2003) 46 Development 13; See also Jacqueline Bhabha, “The Mere Fortuity of Birth? Children, Mothers, Borders, and the Meaning of Citizenship”, in Seyla Benhabib and Judith Resnick (eds), Migrations and Mobilities: Citizenship, Borders, and Gender (New York, NYU Press, 2008) p.187.

68.

Asibor (a minor) v MJELR [2009] IEHC 594. para.51.

69.

See, for example, the Chinese exclusion cases in the US in the early twentieth century: Chin, “The Plessy Myth: Justice Harlan and the Chinese Cases” (1996) 82 Iowa L.R. 151.

70.

Boultif v Switzerland (2001) 33 E.H.R.R. 1179.

71.

Mitchell v the United Kingdom (App. No.40447/98), judgment of November 24, 1998; Ajayi v the United Kingdom (App. No.27663/95), judgment of June 22, 1999; Konstatinov v Netherlands (App. No.16351/03), judgment of April 26, 2007; Onur v the United Kingdom (App. No.27319/07), judgment of February 17, 2009.

72.

üner v the Netherlands (App. No.46410/99), judgment of October 18, 2006, Grand Chamber.

73.

See, e.g. the Chinese exclusion cases in the US in the early twentieth century: Chin, “The Plessy Myth: Justice Harlan and the Chinese Cases” (1996) 82 Iowa L.R. 151.

74.

Rodriguez da Silva and Hoogkamer v the Netherlands (App. No.50435/99), judgment of January 31, 2006. See generally, D. Thym “Respect for Private and Family Life under Article 8 ECHR in Immigration Cases: A Human Right to Regularize an Illegal Stay?”, (2008) 57 International and Comparative Law Quarterly 87-112; E. Guild, Criminalisation of Migration in Europe: Human Rights Implications, Comm DH/Issue Paper (2010).

75.

Ahmut v Netherlands (App. No.21702/93), judgment of November 28, 1996.

76.

üner v Netherlands (App. No.46410/99), judgment of October 18, 2006, Grand Chamber. para.38.

77.

üner v Netherlands (App. No.46410/99), judgment of October 18, 2006, Grand Chamber. para.44.

78.

Alli (a minor) v MJELR [2009] IEHC 595, 2 December 2, 2009, para.75.

79.

L. Henkin, Age of Rights (Columbia University Press, New York, 1990), cited in J. Bhabha, “Arendt's Children: Do Today's Migrant Children Have a Right to Have Rights?” (2009) 31 Human Rights Quarterly 410.

80.

H. Arendt, On the Origins of Totalitarianism (1951), ch.9 (reprinted by Books LLC, 2009).

81.

A.O. and D.L. [2003] I.R. 1 at 19 per Keane C.J.

82.

See Final Report of the Oireachtas Committee on the Constitutional Amendment on Children (Dublin: 2010), proposed wording of amendment and revised art.42 (at 42.1.2°), paras 10.1-10.3.

83.

The Proclamation refers specifically to children of “the Nation”. The insertion of the word State in its place may further support limitations placed on the rights of non-national children.

84.