A Brazilian man whose work permit expired has failed in a legal challenge to his and his family’s deportation in a case centring on whether the interests of the children must be the primary consideration in any deportation decision.
The High Court ruled their rights to private and family life were properly and adequately considered when the deportation orders were made.
Odenis Rodrigues Dos Santos, his wife Antonia Alexandre de Morais, and their five children, have been living in Roscommon for a number of years.
Mr Dos Santos came here on a one-year work permit in September 2002 and his wife and children, three of whom are under 18, joined him subsequently. Mr Dos Santos says he and his family have established deep roots in Ireland and his children are wholly integrated into Irish society.
Although his work permit had expired in 2003, he continued to be employed here and in 2008 he was informed he was to be deported by the immigration service which also said it was not aware his family had joined him.
Through his solicitor, he applied for permission to remain in Ireland. He said gardaí in Roscommon were aware of his and his family’s presence in the town and had actually been holding his passport for the previous three or four years.
His application was refused by the Minister for Justice and Equality who ordered the family's deportation in March 2012.
The High Court then granted an injunction halting the deportation pending a hearing of their legal challenge.
They claimed such an order would breach their rights to respect for family life under the Constitution, European law and the UN Convention on the Rights of the Child.
The Minister argued there was no interference with their rights because it was intended to deport all the family and there was no separation of them involved.
Mr Justice Paul McDermott said, in deciding the family should come to Ireland permanently, the parents did so “illegally and in clear and deliberate contravention of Irish immigration law”.
The family are non-nationals who do not have a constitutional right to reside here but they are entitled to fundamental protections, he said.
Their family and privacy rights under the Constitution and human rights conventions were in no way compromised by their deportation, he said.
It was clear the deportation of the children would result in them having to move to Brazil and thereby to schools there, he said.
There was nothing exceptional about requiring a child to change schools or leave friends behind whether within the State or abroad, he said.
The court did not accept the immigration authorities acquiesced in the presence of the family in the State, he added.
In ordering their deportation, the Minister for Justice had regard to a number of factors including there was no obligation to respect the choice of residence for a non-national couple and their children. The State has the right to control entry, residence and expulsion of non-nationals, he added.
He was satisfied all the relevant factors and principles had been considered by the Minister with proper regard for the welfare and best interests of the children.
The judge has continued the injunction on deportation for two weeks to allow the family’s lawyers consider the judgment.