State contesting right of non-EU parents of Irish children to stay
Some 2,700 non-EU migrants with Irish children were allowed stay last year, writes Nuala Haughey
The Baby "O" case comes amid several other legal actions being taken by the State in a bid to restrict the almost automatic right of non-EU migrant parents of Irish born children to remain here, regardless of their legal status.
In several other cases, some of which are due to come before the High Court later this month, the Department of Justice is seeking to deport failed asylum-seekers who are the parents of children born here.
Until now, the authorities have generally granted residency to the parents of children born in Ireland, who automatically become Irish citizens.
This parentage policy is based in a 1990 Supreme Court ruling in the Fajujonu case which recognised that an Irish-born child had the right to the "company" of its non-national parents, who were illegal immigrants.
In the intervening years, the numbers of failed asylum-seekers applying to remain in the State on the basis of the Fajujonu judgment has increased significantly. So too have the authorities' concerns that asylum-seekers are increasingly using this precedent to stay in the State if their claim to remain as refugees fleeing persecution is not successful.
Up to half of female asylum-seekers are pregnant at the time of making their applications, although lobby groups point out that many people on the move are of child-bearing age.
From 1996 to the end of last year, 4,859 people were granted ministerial permission to remain in Ireland on the basis of having Irish-born children, according to figures supplied by the Department of Justice.This total includes 2,747 people last year alone. If an asylum-seeker is granted refugee status, the Irish-born children issue does not arise, as refugees are automatically entitled to remain in the State permanently, along with their offspring. The Fajujonu case took place against a backdrop of negligible inward migration. In 1992, one of the earliest years for which figures are available, 32 asylum claims were lodged.
This has risen to more than 10,000 per year for the past two years. Fewer than 10 per cent of asylum-seekers are granted refugee status and delays of up to several years in processing cases have been common.
The Department of Justice has been concerned about the parentage matter since the late 1980s, and sought legal opinion several years ago from two experts who reached contradictory conclusions. The Fajujuno case involved the Nigerian and Moroccan-born parents of three Irish-born children. The parents were illegal migrants but had never sought asylum in Ireland since they arrived in 1983, five years before their case was ruled on by the Supreme Court.
The court ruled that an Irish-born child, as a citizen, was entitled under the constitution to remain in the State and be cared for by his or her parents.
The parents were entitled to choose to remain in the State to look after their children. Only the interests of the "common good" and "the protection of the State and society" justified the Minister for Justice in interfering with the child's constitutional rights, the court held.
The cases due to come before the courts in the coming weeks are understood to involve failed asylum-seekers who have not lived in the State for more than a couple of years. It is expected that the authorities will argue that it is valid to deport failed asylum-seekers who are the parents of Irish-born children, but who have not spent an "appreciable length of time" in the State.