The High Court has ruled the Minister for Justice unfairly made an order refusing a Nigerian mother the right to remain in Ireland with her Irish-born son.
Ms Justice Finlay Geoghegan also found that the detention in Mountjoy Prison last January of Ms Bola Fumni Ojo, with her then new-born son, was unlawful.
Ms Ojo, who lives in Waterford and was present in court yesterday with her five-month-old son, Daniel, may now pursue an action for damages against the State. Her case represented the first challenge to a deportation order involving a foreign mother of an Irish-born child since the Supreme Court decided in January such orders may be made.
Ms Ojo arrived in Ireland in December 2000 with her non-Irish-born daughter Toke Ojo, now aged four, and they lived in Mosney, Co Meath. She was refused refugee status. She was visited by her husband in February 2002, later found herself pregnant and changed address without notifying the authorities.
Her son was born last December 15th and Ms Ojo applied for a "green card" to be allowed remain with him in Ireland. The Department informed her on January 3rd there was a backlog of such applications. On January 27th, four days after the Supreme Court decided that the non-national parents of Irish-born children are not entitled to remain in the State by virtue of having Irish-born children, she went to Waterford station to notify gardaí of her change of address.
She was arrested on being told that a notification had been sent to her Mosney address telling her to present herself at Drogheda garda station on September 13th, 2002, to make arrangements for her deportation.
Ms Ojo was detained under Section 5 of the 1999 Immigration Act and brought with her son to Mountjoy Prison. Her daughter was left with a friend in Waterford. On February 6th, the High Court released her on bail pending a challenge to the lawfulness of her detention.
At the February 6th hearing a note in the handwriting of the Minister, Mr McDowell, was given to Ms Ojo as she was coming to court informing her that he had found there were no grounds to permit her remaining in this country. Ms Ojo then took legal proceedings.
In her reserved judgment yesterday, Ms Justice Finlay Geoghegan found that the power to detain under Section 5 of the 1999 Act was only exercisable for the purpose of ensuring deportation. The power must be exercised in accordance with the principles of constitutional justice.
The judge ruled that a precondition to the valid exercise of that power must be a "concluded intention to deport" a person.
The judge said the facts in Ms Ojo's case were unusual. The deportation order was made in August last year and at that stage there was a final intention to deport, but Daniel's birth had changed in a significant way Ms Ojo's family circumstances.
The judge found that no final concluded intention to deport Ms Ojo was made subsequent to the application for residency based on her Irish-born son. Therefore, a necessary precondition to the exercise of the power of detention under Section 5 of the 1999 Act did not exist, she held.
Dealing with Ms Ojo's challenge to the Minister's decision refusing her residency, the judge said that having regard to the recent decisions of the Supreme Court, it appeared the power to expel or deport non-nationals was inherent in the State as a sovereign state, and not because it had been conferred on particular organs of the State by statute.
It appeared Ms Ojo and her daughter were persons with no right to be in the State, but this did not mean they were persons without rights. Daniel enjoyed constitutionally protected family rights, but no constitutionally protected right to the company or protection of his mother or sister in Ireland.
So far as Ms Ojo and her daughter now had rights in Ireland, those rights appeared to be confined to procedural rights. The Minister was not adjudicating on any alleged constitutional right of the Irish-born child.
The Supreme Court decision of January 23rd at a minimum had a significant impact on the "green-card" scheme and may have ended it.
Ms Ojo had applied under the "green card" scheme before the Supreme Court decision.
Ms Justice Finlay Geoghegan decided fair procedures had not been operated in relation to Ms Ojo and she was entitled to an opportunity to have the January 23rd Supreme Court findings considered by her lawyers and to receive their advice, and to have further representations made in support of her claim to remain in Ireland.
The judge placed a stay on her decision in the event of an appeal to the Supreme Court.