A JUDGE has told the Minister for Justice he may transfer a heavily pregnant Pakistani asylum seeker by road to Northern Ireland if the UK authorities agree not to remove her from the island of Ireland pending the birth of her child next month.
Mr Justice Gerard Hogan refused to grant Rizwana Aslam (27) an injunction restraining her return to the United Kingdom, which the Minister claimed was the proper jurisdiction in which she should seek asylum. He did restrain her transfer by either sea or by air.
“One cannot readily countenance the mandatory transfer of a heavily pregnant woman by sea, not least during winter conditions, with the prospects of gales and turbulent conditions,” Mr Justice Hogan said yesterday.
“This would represent a test of endurance which no heavily pregnant woman should ever be obliged by State action to face. There would also be the prospect of an early delivery while at sea, perhaps brought on by turbulent conditions,” he said.
Mr Justice Hogan said it was appropriate that Ms Aslam be treated with particular care and in a dignified and a humanitarian fashion.
The parties had agreed that Ms Aslam, who is eight months pregnant, could not be transferred by air. There was no question of the Minister transferring her to Pakistan.
He said the State was constitutionally obliged to protect Ms Aslam and take steps to safeguard her unborn child. These obligations meant no steps could be taken which would unnecessarily jeopardise or compromise the life or health of either.
In this respect, it was to be naturally assumed that the Minister would see to it that she was medically examined by an appropriate independent specialist and that she would only be transferred in circumstances where it was considered medically appropriate to do so.
The judge said Ms Aslam was a Pakistani national who was pregnant by her fiance, Fakherr Udin, also a Pakistani national, who had been given asylum status in Ireland in 2008.
She had arrived in Ireland via Britain where she had a visa to enter.
When the Irish authorities established her true visa status in Britain, the Minister had elected to transfer her to Britain which had agreed to take charge of her asylum application.
She had been required to present herself to the Garda National Immigration Bureau last September; when she had not done so, she had been classified as an evader.
She was subsequently arrested in Galway and, following the current legal challenge, had been granted a stay on her transfer.
Mr Justice Hogan said Ms Aslam and her fiance were scheduled to marry in Ireland under the Civil Registration Act on January 5th, but they had also gone through a form of Islamic marriage by proxy in Rabwah in Pakistan last February.
For the purpose of the application before him he considered them to be married.
Mr Justice Hogan said that if the Minister had been aware of these facts, it followed that as a matter of law, Ms Aslam would have had the right to insist that her asylum application should be dealt with in Ireland by virtue of her marriage to a recognised asylum seeker.
Her application had contained many untrue statements.
The marriage had never been disclosed to the Minister and in her asylum application, she had insisted as late as July 2011 that she was single. Nor was the Minister informed before her arrest that she was pregnant by her fiance.
In these circumstances, it was now too late for her to exercise her rights under the Refugee Act to have her application for asylum determined by the Irish State on the basis that she was married to a recognised asylum seeker.
She had elected to have her asylum application dealt with on the basis she was single and unmarried.