Constitutional questions

Long Onion

So, I have decided recently to revisit my legal texts so as not to let my learning fester unused in the back of my brain (I am not working in the legal profession at the moment) Upon reading Kelly, I came across an interesting question and am looking for opinions.

There are a number of cases dealing with the application of the constitution outside our national territory. There seems to be an acknowledgement by the courts that some of the rights in the constitution extend past the Hobbesian social contract principle - for example, some of the natural rights should be applicable to everyone regardless of citizenship (don't have the case law to had right now but a few Health board cases dealt with this issue)

Coupled with this, a few cases dealing with the Maze prison escape (Finucane IIRC) have held that an extradition order may violate the constitutional rights of the individual if the courts deem that the may be subjected to certain treatments or conditions upon extradition. On this point there was a UK case involving death row which found similarly in relation to the Convention on human rights (Soering v United Kingdom).

So my question is this - given the above, how do we stand on the issue of deportation orders to countries where conditions may pose a threat to the natural rights of the individual. Also, given the special protection of the family, how have the courts accorded the above with the decision to deport the parents of children born within the state this impinging on the childs right to be part of a family unit?

walrusgumble

Long Onion wrote: »

So, I have decided recently to revisit my legal texts so as not to let my learning fester unused in the back of my brain (I am not working in the legal profession at the moment) Upon reading Kelly, I came across an interesting question and am looking for opinions.

There are a number of cases dealing with the application of the constitution outside our national territory. There seems to be an acknowledgement by the courts that some of the rights in the constitution extend past the Hobbesian social contract principle - for example, some of the natural rights should be applicable to everyone regardless of citizenship (don't have the case law to had right now but a few Health board cases dealt with this issue)

Coupled with this, a few cases dealing with the Maze prison escape (Finucane IIRC) have held that an extradition order may violate the constitutional rights of the individual if the courts deem that the may be subjected to certain treatments or conditions upon extradition. On this point there was a UK case involving death row which found similarly in relation to the Convention on human rights (Soering v United Kingdom).

So my question is this - given the above, how do we stand on the issue of deportation orders to countries where conditions may pose a threat to the natural rights of the individual. Also, given the special protection of the family, how have the courts accorded the above with the decision to deport the parents of children born within the state this impinging on the childs right to be part of a family unit?

the following is a quick and off the cuff "General" summary when dealing with Non EU & Non Irish Nationals. The reason why i point out non nationals is because, well, if you are italian etc, EU case law and Directive 2004/38EC has made it extremely difficult for a citizen of a member state to be deported (ie you would want to be in serious serious crimes)

in practice, where the family is from Iraq, Palestine, Somalia, Afghnaistan the family won't be deported for obvious reasons. Problem though, tends to be where they are waiting 1 year + for their applications to be decided by the Minister.

The European Convention is relied upon alot, unfortunately and i suppose fortunately for the State, UK domestic law is often considered (can, like ECtHR be very harsh)

For an example of Irish law See Section 5 of the Refugee Act 1996, as amended - Principle of non refoulement (this of course from the Geneva Convention and EU Minium Standards Directive)

1. “A person shall not be expelled from the state or returned in any manner whatsoever to the frontiers of territories where, in the opinion of the minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion”.

2. Without Prejudice to the generality of subsection (1), a person’s freedom shall be regarded as being threatened if, inter alia, in the opinion of the minister, the person is likely to be subject to a serious assault (including a serious assault of a sexual nature).”

The Minister considers various sources such as media, human rights reports and documents etc to find out what countries are like

The convention as you noted in Soering, does come into play. Being lazy i am sure you are aware of cases dealing with other deportations on basis of Artilce 2, 3, 5, and 6. (another good case is Chahal)


With regard to Constitutional rights, like all others, they are not absolute. However, in relation to Irish Citizen Children, have a look at Dimbo May 2008 Supreme COurt Case, in light of previous position in Lobe (DL v MJELr) Supreme Court 2003). if the children are born in ireland but are not citizens (born after 2005 and they don't comply with Section 6A of the INC Act 1956-2004), then alot will go down to what their country is like. so you must distinguish between irish born children and irish born children who are irish citizens

A scenerio which might help: say you got a couple from China who had been here since 2000. well ,first off, the might be child 7-9 years old and has established his/herself in the country & education system. If they are forced to return, they will have to give up their Irish/EU citizenship if they wish to not be treated as a foreigner in China (ie normally the child will have automatic right as of birth, but can't have dual nationality) THe child's educational rights contained in the constituion come into play, also look at the family planning in China. and if the child is a girl, well its buggered.

Now, the interesting one is Article 8 ECHR when dealing with non Irish and Non EU Citizens. You need to see Artilce 8 (2) this is the one that the UK and Ireland love to use and courts often accept. Artilce 8 is in my view a double edge sword!

See Abdulaziz, Cabales & Balkandali v UK (ECtHR) where it was held that there is no obligation on state to respect the choice of married couples of the country of matrimonial residence and to accept non national spouses for settlement

Bascially that was a start. Note every case is different. In conclusion with regard to non nationals (from non war countries) the ECtHR has the following guideline ( i am doing this off the cuff, there is more, similar to Section 3 of the Immigration Act 1999, so pay attention to the Supreme Court case of Dimbo & Okewunke 2008)

1 length of time in the State
2 there must be no obstacles to establishing family life in their own country of origin (language barriers, employment etc might not be enough)
3 age of the children / family members
4 whether there are links with countries are still intact
5 the legal status of the deportee at time of marriage and whether it was know (note!!!! metock, the EU case, ignores this if a deportee married an EU national, regardless of deportee's legal status at time of marriage)

then of course there is ECtHR cases dealing with when the Minister purposes to deport legal non eu/irish when they commit crimes (interestingly i can't think of any reported cases, they may never will, can't create the dangers of precedent, people will go ape, populism might win the day , right there Enda)

Ireland has being reasonably decent compared to UK or US, as suppose the fact that we are a nation that has experienced emigration and we would not want to look to bad in eyes of Uncle Sam when we are bringing the bowl out.

However, the really horrible thing is that other EU citizens who live here, work permit holders and refugees have more rights to family reunification than Irish Citizens, in that unlike the former, there is NOTHING express as rights in statutory form. Basically, unlike EU law via Metock 2008, (note our EU rights don't kick in until we travel over to another EU State -intersting when you consider the North!) if an irish person marries someone who, eg came to ireland as an asylum seeker and has a deportation order before marriage or have lived in Irleand illegally for some time, you maybe buggered!!!!!! to avoid this, you would really need to show a strong and lengthy relationship, a couple of children might be helpful or you might be better off buggering off to somewhere in the EU for a while (via Metock)