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Referendums risked ‘legal uncertainty’ for migration rules, officials warned before O’Gorman’s reassurances

Government repeatedly claimed referendums had no immigration implications

Minister for Integration Roderic O’Gorman claimed the constitutional amendments proposed in the family and care referendums would have 'no legal impact' on immigration. Photograph: Paul Sharp/Sharppix

Justice officials warned the family and care referendums risked creating prolonged “legal uncertainty” over migration rules before Minister for Integration Roderic O’Gorman claimed the proposals had “no legal impact” on immigration law, newly-released records show.

In files casting new light on the Government’s failed referendum campaign, Department of Justice officials said the proposals raised the prospect of increased migration applications, more litigation and rising legal costs.

“Immigration Service Delivery may be left in legal uncertainty in various areas for several years while waiting for legal precedents to be established, which will create yet more delays and backlogs,” said Department of Justice officials.

The disclosure comes despite repeated Government claims that there were no immigration implications from the referendums.

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In the March vote, a 73.93 per cent majority rejected care amendments to “strive to support” care and delete mothers’ duties from the Constitution. A 67.69 per cent majority voted to reject constitutional amendments to recognise families in “other durable relationships” in addition to marriage families.

Addressing the Dáil in January, Mr O’Gorman said constitutional change was likely to be cited in legal cases, saying “people will raise it in courts and ultimately courts will make a final determination”.

But he insisted there would be no impact on the law: “The clear legal advice we received from the Attorney General is that there will be no legal impact on immigration law or, in particular, international protection law.”

Now Department of Justice files, released under the Freedom of Information Act, reveal concern among officials dealing directly with migration.

One heavily redacted draft Justice paper for Mr O’Gorman’s department said extending constitutional protections “beyond the marital family could restrict the State’s ability to deport, as more persons could seek to rely on the amended Article”.

The final paper said “substantial legal costs will be incurred by the Department of Justice and the State” while cases went through court.

“The expected significant increase in applications across a wide range of areas of migration and international protection, and the additional layers of consideration that will be required in cases were constitutional family or care rights are asserted, will negatively impact processing times for application.”

It added: “The proposed amendments are likely to increase litigation in the areas of migration and international protection in the absence of a clear definition of ‘family’ or ‘family member’. The proof of family relationships is likely to become more complex and labour intensive to consider and analyse.”

The Department of Justice said the files related to “scoping exercises and assessments” in mid-2023 “and are not an analysis of the Government’s proposed wording of the amendments” published in December 2023.

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It cited Attorney General advice that said “the Minister for Justice retained ultimate control over the immigration system” and that applications could be rejected on public policy or security grounds.

“The advice referred to was provided significantly in advance of the final wording of the referendum text being agreed late last year.”

Mr O’Gorman’s spokesman said: “The Minister’s remarks reflect advice from the Attorney General.”

Arthur Beesley

Arthur Beesley

Arthur Beesley is Current Affairs Editor of The Irish Times