‘Leapfrog’ appeal sought on ruling over rights of the unborn

The State is seeking a “leapfrog” appeal to the Supreme Court concerning a judgment which found the word “unborn” in the Constitution means an unborn child with rights beyond the right to life.

Lawyers for the State have told the Court of Appeal, which deals with standard appeals, they are seeking a Supreme Court appeal of a July 2016 judgment given in the High Court.

The judgment came in proceedings aimed at preventing the deportation of a Nigerian man on grounds including his family rights.

The case was brought by the man, his Irish partner and their now one-year-old child, who was not born when the case was initiated in July 2015.

Those applicants, represented by Michael Conlon SC, told the Court of Appeal they were not objecting to having the issues decided by the Supreme Court.

In those circumstances, the matter effectively remains frozen pending the Supreme Court’s determination on whether the appeal meets the necessary constitutional criteria for an appeal to the higher court.

If the Supreme Court determines to hear the appeal, it may be heard by up to seven judges, given the importance of the issues raised.

Immigration case

The appeal concerns a judgment of Mr Justice Richard Humphreys which, although delivered in an immigration case, is considered to have significance well beyond that arising from the judge’s consideration of the rights of the unborn.

The State wants clarity on the extent of the constitutional rights of the unborn due to a number of apparently conflicting High Court judgments on that issue.

Mr Justice Humphreys held “unborn” means an “unborn child” with rights extending beyond the right to life under Article 40.3.3 (the 1981 anti-abortion amendment of the Constitution).

He also interpreted Article 42A of the Constitution, inserted as a result of the 2012 Children’s Referendum, as affording protections to all children “both before and after birth”.

Article 42A provides that “the State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights”.

The unborn child, including of a parent facing deportation, enjoys “significant” rights and legal position at common law, by statute, and under the Constitution, “going well beyond the right to life alone”, the judge held. Many of those rights are “actually effective” rather than merely prospective, he said.

Consequences

While neither Article 42a nor Article 40.3.3 were intended to confer immigration rights, that did not displace any legal consequences flowing from the prospective position of an unborn child with a parent facing deportation, he said.

Granting leave for judicial review, the judge said, when considering whether or not to revoke the 2008 deportation order made against the man, the Minister must consider the right to life of the unborn, plus the legal rights the child will acquire on birth, insofar as those were relevant to deportation.

The Minister must consider the constitutional, statutory, EU and ECHR rights of the man, his partner and the child, including their family rights under Article 8 of the ECHR, he ruled.

His findings did not mean a person in the man’s position - unlawfully in the State since 2007 - was automatically entitled to remain here, he added.