Court appeal against deportation fails

The Supreme Court yesterday cleared the way for the deportation of a pregnant Nigerian woman after unanimously dismissing an appeal against an earlier High Court decision which had rejected a challenge to the deportation order.

The five-judge court lifted a stay on the execution of the deportation order, which had been granted to facilitate the Supreme Court appeal. It refused an application to extend the stay to facilitate an application to the European Court of Human Rights in Strasbourg.

Dr Michael Forde SC, for Ms Iyabode Abimbola Oladado (32), who lives in Tralee, Co Kerry, and who is due to give birth in May, had sought the stay for five days - a period which, he argued, would not prejudice the State. He said that the ECHR would be in a position to further extend the stay.

However, Mr George Birmingham SC, for the Minister for Justice and the State, opposed as inappropriate any extension of the stay and added that the European Convention on Human Rights was not part of domestic law.

After brief exchanges between the five judges, the Chief Justice, Mr Justice Keane, said that the court would lift the stay.

Earlier, when announcing the Supreme Court's decision to reject the woman's appeal, the Chief Justice said the court would give its reasons in a written judgment to be delivered at a later, unspecified date. Ms Oladado was not in court for the decision.

In his High Court judgment, Mr Justice Smyth found that the case concerned the legal right or entitlement of the Minister to deport a person who had failed to secure a certificate of refugee status from the State because she was pregnant. He ruled that the Minister was entitled to make the disputed order.

In his submissions to the Supreme Court during last week's hearing of the appeal, Mr Birmingham argued that this was not a "right to life" case.

He said that Article 40.3.3 of the Constitution, which deals with the right to life of the unborn, was clearly referable to abortion and was not an issue. This was a case where it was claimed that this woman could not be returned to a country (Nigeria) with an inferior health service. The case was really about a claim that one is entitled to choose the health services that one prefers.

If Ms Oladado was correct, it would mean there could be no deportation of pregnant women, counsel argued. The issue of this woman's pregnancy had been raised "late in the day" after she had gone through the asylum process and had had her appeal against the refusal of asylum refused. The Minister was entitled to consider that the fact of pregnancy did not amount to circumstances which would require him to revoke the deportation order.

Mr Birmingham also argued that the unborn child could not be an applicant in relation to asylum proceedings.

Dr Forde, for the woman and her unborn child, argued that, because the unborn child is "a person", there has to be a specific decision to deport the unborn, including the making of a deportation order. In this case, the unborn child was not the subject of any deportation order.

It was also argued that the woman was not granted fair procedures when she applied for asylum here.