The Supreme Court judgment that the non-national parents of an Irish-born child cannot, as a matter of course, claim the right to live in Ireland, will not have come as a surprise.
This effective right arose from the Fajujonu judgment in 1990, when a Nigerian man and his Moroccan wife successfully argued that their Irish-born child was entitled to their society and care in Ireland, where they had lived for eight years. While no right of residence was established in the Fajujonu case, the court asked the Minister to show compelling reasons, in the interests of the common good, why the family should be deported. It is assumed they stayed.
In recent years the number relying on this judgment to establish the right of residency in Ireland has grown sharply, and with it the suspicion that some people were side-stepping the asylum and immigration system by giving birth to a child in Ireland and then claiming residency. This is substantiated by the fact that in the past two years 9,662 applications for asylum were withdrawn on the basis of the parentage of an Irish-born child.
Faced with this reality, it is not surprising a majority of the Supreme Court ruled the Fajujonu case did not provide a general right for parents of Irish-born children to claim residence.
But the court did not give a green light to wholesale deportations. Each case must be considered on its merits. The clearly-established rights of an Irish-born child to reside in Ireland, and his or her right to be cared for by his or her parents, must be balanced against the right of the Minister to take decisions "in the interests of the common good". There was a consensus in the court that the length of time a family containing an Irish citizen has lived in Ireland should be taken into account in deciding on a deportation, if this is deemed necessary.
The Minister says there will be no mass deportations, which is welcome. He also says there will be no move to amend the citizenship provisions of the Constitution, including the new Article 2 adopted with the Belfast Agreement, which had previously been mooted. This too is to be welcomed. All the judgments will be carefully considered before proposals go to Cabinet for further regulation in this area.
They include the dissenting views of Mr Justice Fennelly and Ms Justice McGuinness who stressed the important rights citizens have - especially since the referendum on Article 2 - and which the family enjoys under the Constitution. These should not lightly be set aside, they said. In particular, Ms Justice McGuinness warned that the phrase "the integrity of the asylum system" is so general and vague that it could be used to overturn the Fajujonu judgment by the back door. The Minister will do well to include this warning in his deliberations. He should not allow administrative requirements to supercede well-established constitutional rights.