THE SUPREME COURT
THE SUPREME COURT
Appeal N° 485/2006
(High Court No.2006/102 JR)
Between :-
D.B. (A minor suing by her father and next friend F.B.), F.B. AND C.O-B.
Applicants/Respondents
- and -
THE MINISTER FOR JUSTICE EQUALITY & LAW REFORM
Respondent/Appellant
- and -
THE HUMAN RIGHTS COMMISSION AND THE ATTORNEY GENERAL
Notice Parties
OUTLINE WRITTEN SUBMISSION
ON BEHALF OF THE HUMAN RIGHTS COMMISSION
A. Preliminary
1. Pursuant to the Order of this Honourable Court made on the 23rd March 2007 granting the Human Rights Commission (the Commission) leave to participate as amicus curiae in the within appeal, the present outline written submission addresses in general terms certain aspects of the legal issues raised in these and the related proceedings that are within the ambit of the Commission’s remit and in respect of which the Commission believes its input may be of assistance to this Honourable Court.
2. The Court granted liberty to the Commission to appear on the issues before the Court and within the ambit of the Commission’s statutory function. It was noted by the Chief Justice that the wide terms of the Order would involve the Commission in a measure of choice consistent with its role and interest, and of necessity the present submission is selective. In addition, this submission has been prepared in accordance with the concern and undertaking of the Commission to be brief, strictly impartial and to offer its assistance only in respect of matters that might not be addressed by the parties. The four themes that the Commission has chosen to address are as follows:-
i. The principles relating to the protection of private and family life in an immigration context as reflected in the most recent decisions of the European Court of Human Rights;
ii. The principles relating to the protection of children in an immigration context as they derive from other international human rights instruments to which Ireland is a party;
iii. The principles relating to the requirement for an effective remedy in this context; and
iv. The impact of the judgment of the European Court of Justice in Chen on the decision of the Supreme Court in L & O v Minister for Justice Equality & Law Reform.
B. ECHR Principles and Recent Case Law
General Principles of Interpretation
3. The concept of State responsibility for the protection of fundamental rights is at the heart of the European Convention on Human Rights. States have negative and positive obligations under the Convention: not to interfere with core human rights, and to protect those within their jurisdiction from violations. A positive obligation may also require action to give effect to rights, such as the promotion of family life through the admission of a family member to the country.[1] Further, in accordance with the ideas expressed in the Preamble and in Article 1, the Convention is intended to guarantee rights that are practical and effective, not theoretical and illusory.[2] Thus, rights must not be subject to conditions for their exercise which render them useless. [3]
4. The Convention allows the State a margin of appreciation in deciding how best to give effect to the rights enshrined in it pursuant to its obligations under Article 1 and Article 13 (provision of effective remedies for violation of Convention rights). This has been defined as the degree of latitude accorded to the national authorities and courts in recognition of the fact that ‘by reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed than an international court to evaluate local needs and conditions.’[4] By conceding a margin of appreciation to each national system, the European Court of Human Rights (ECtHR) has recognised that the Convention does not need to be applied uniformly by all States, but may vary according to local needs and conditions.[5] The margin applies in relation to justifications for interference with a Convention right,[6] the scope of positive obligations,[7] and in assessing what constitutes objective and reasonable justification for difference in treatment under Article 14.[8] The limits of the margin of appreciation vary according to the importance of the rights at stake, the purpose pursued by the State and the degree to which opinions within a democratic state may reasonably vary. Thus, the limit is wider in cases involving national security, planning policy, tax, and social and economic policy, and narrower in the fields of criminal law, free speech and private morality.
5. By definition the doctrine of the margin of appreciation is not available to national courts when they are considering Convention issues in their own countries.[9] However, as Lord Hope pointed out in R v DPP, ex parte Kebilene [1999] 4 All ER 801, something akin to the margin of appreciation may operate in some circumstances in the domestic jurisdiction, because the alleged breach of the Convention may involve an area of judgment within which the judiciary will be inclined to defer to the considered opinion of the Minister or departmental official.[10]
6. The ambit of the right to respect for private and family life as protected by Article 8 of the Convention is a broad one (see below). An interference with the right is permitted under Article 8(2) where it is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. These countervailing interests are exhaustive, not illustrative,[11] and therefore the undoubted entitlement of States under international law to control immigration, which has been recognised and affirmed by the ECtHR in this context,[12] is best regarded not as a free-standing legitimate aim but as a means of promoting one or more of the listed interests such as economic well-being or the prevention of disorder or crime.[13]
7. All permissible grounds of interference, including the right to control immigration, are to be construed strictly.[14] As stated by the ECtHR in Miailhe v France (1993) 16 EHRR 332 the exceptions in Article 8(2) are to be interpreted narrowly and the need for them in a given case must be convincingly established. Further, the permitted restrictions must not be applied for any collateral purpose.[15]
8. An interference which is not in accordance with domestic law will breach the Convention regardless of whether it is justified.[16] But legality, or the requirement that interference with rights is ‘in accordance with the law’ does not merely refer back to whether interference is allowed by domestic law but it also relates to ‘the quality of the law’, requiring it to be compatible with the rule of law, a concept inherent in all articles of the Convention.[17] To comply with the rule of law the law itself must be sufficiently accessible and precise to enable the citizen to regulate his or her conduct and avoid all risk of arbitrariness. To conform to the requirements of accessibility and precision, a law conferring discretion must indicate its scope and set out the way discretion is to be exercised.[18]
9. Once it is established that a particular interference is ‘in accordance with the law’ consideration turns to whether the measure in question has a legitimate aim and if so, whether the measure meets the Convention’s requirement of proportionality. The balance between the protection of individual rights and the interests of the wider community is at the heart of the Convention and a fair balance is achieved when interference with the individual’s rights is strictly proportionate to the legitimate aim pursued in restricting it. As Sedley LJ stated in B v Secretary of State for the Home Department [2000] Imm AR 478:-
‘A measure which interferes with a human right must not only be authorised by law but must correspond to a pressing social need and go no further than is strictly necessary in a pluralistic society to achieve its permitted purpose; or, more shortly, must be appropriate and necessary to its legitimate aim.’
10. The requirement that a restriction on a fundamental right correspond to ‘a pressing social need’ and be ‘ necessary’ is strict; ‘necessary’ is not so flexible a term as ‘useful’ or ‘desirable’,[19] and the phrase ‘necessary in a democratic society’ refers to a pluralistic, tolerant and broadminded society.[20] In Sunday Times Ltd v United Kingdom (No. 2) (1979) 2 EHRR 245 the ECtHR, in considering the ‘margin of appreciation’ under Article 10 stated:-
‘The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decision they delivered pursuant to their powers of appreciation. This does not mean that the supervision is limited to ascertaining whether the Respondent exercised its jurisdiction reasonably and carefully in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”.’[21]
11. Factors relevant to assessing the proportionality of a restriction have been held to include the extent of the interference,[22] and whether there are fair procedures and safeguards against abuse.[23] The absence of relevant and sufficient reasons for the restriction is likely to result in a finding that the restriction was not necessary or was disproportionate.[24] However, although the consideration of whether there is a less restrictive alternative is generally also a relevant consideration to proportionality, on English authority it appears that ‘proportionality as to means’ has no application to cases involving expulsion where the issue is whether to expel or not, see R (Samaroo) v Secretary of State for the Home Department [2002] INLR 55; R (Sezek) v Secretary of State for the Home Department [2002] 1 WLR 348.
Immigration Law and Interferences with Family and Private Life
12. The right of a non-national to enter or remain in a country is not guaranteed by the European Convention on Human Rights, but as the ECtHR observed in its landmark decision in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, immigration controls have to be exercised consistently with the obligations under the Convention. The right to family life is to be seen in the context of the right of States to control the entry of non-nationals onto their territory and consequently Article 8 does not oblige States to respect the choice by married couples of their matrimonial residence or to accept the non-national spouse for settlement in the country. As the authors of MacDonald’s Immigration Law and Practice (6th ed, 2005) have observed:-
“In the years that followed Abdulaziz there emerged two types of cases: those involving the expulsion of long-term residents, normally following criminal conviction, and those involving the expulsion or failure to admit third country nationals with family members in the Contracting State. The position of long-term residents would be more easily secured if they had family members in the Contracting State. In considering whether an expulsion amounted to a breach of Article 8, the court would weigh the nature of any offence committed by the Applicant and the extent to which links with his country of origin had been severed, although the outcomes generally favoured State control.[25] In cases concerning the expulsion or refusal to admit other third country nationals with close family members in the Contracting State, the family would need to demonstrate that there were ‘obstacles’ to family life being established elsewhere. In the 1990s the Commission’s jurisprudence was extremely tough on this issue; thus even the deportation of the mother of a British citizen child was declared compatible with the ECHR, as the child was of ‘an adaptable age’.[26] In similar vein, the Court upheld a refusal to admit a child into a Contracting State where his parents had been granted humanitarian leave to remain, holding that there were no real obstacles to the parents returning to their country of origin.[27] Divorced or separated parents had an apparent advantage, since the non-national parents were likely to encounter obstacles to enjoying their family life with children staying in the State of residence of the other parent, who could not be expected to accompany the non-national abroad.[28] The case law of the Court also made a distinction between decisions on admission of a non-national to the territory of a State and expulsion, reflecting a difference in approach to positive and negative obligations under Article 8 ECHR.[29]”
13. As these and other leading authors have pointed out,[30] it appears clear that the emphasis in the case law of the ECtHR in this context has changed significantly
in the last few years. In particular, the Court’s judgment in Boultif v Switzerland (2001) 33 EHRR 1179 represents a departure from previous case law and has now been established as having laid down guiding principles for assessing the likelihood that a decision will interfere with family life and, if so, its proportionality to its legitimate aim. These principles now apply to all types of immigration case, whether long-term residents facing expulsion or those without any other legal entitlement seeking to remain with close family members. In Boultif the Court stated:-
“[T]he Court will consider the nature and seriousness of the offence committed by the Applicant; the duration of the Applicant's stay in the country from which he is going to be expelled; the time which has elapsed since the commission of the offence and the Applicant's conduct during that period; the nationalities of the various persons concerned; the Applicant's family situation, such as the length of the marriage; and other factors revealing whether the couple led a real and genuine family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; and whether there are children in the marriage, and if so, their age. Not least, the Court will also consider the seriousness of the difficulties which the spouse is likely to encounter in the country of origin, though the mere fact that a person might face certain difficulties in accompanying her or his spouse cannot in itself exclude an expulsion.”
14. This test is prospective in its focus. For example, in Yildiz v Austria (2003) 36 EHRR 32, the Court made clear that, in considering the proportionality of deportation as a response to criminal convictions, it will place considerable emphasis on the future threat that a person might pose to public order, rather than confining itself to consideration of the past. In that case the ECtHR found a violation of the right to family life where the deportation and a five-year residence ban imposed on the applicant father was found to disproportionately disrupt the applicant’s family life, including in particular his relationship with his small Austrian-born child, notwithstanding that he had been convicted of shoplifting and traffic offences. Furthermore, the Boultif criteria place less weight on the State’s entitlement to control immigration when compared for example to the Court’s earlier approach in Abdulaziz, such that the need for fair processes that ‘afford due respect to the interests safeguarded by Article 8’ is now urged upon States.
15. Most significantly, the Boultif test marks a shift away from the previous inquiry as to whether remaining in the country is the ‘only way’ in which family life can continue to be enjoyed, to a test which looks to the overall suitability of imposing a change of country on a family including in particular the children of the family.[31] This new approach is consistent, notably, with the influential dissenting opinion of Judge Martens in Ahmut v Netherlands (1997) 24 EHRR 62 and also with the principles developed by the ECtHR in a non-immigration context in child protection cases.[32]
16. In Boultif the ECtHR recognised that the existence of real difficulties (such as lack of ties or language difficulties) for some family members in the deportee’s country of origin could lead to the conclusion that the family could not be expected to follow the deportee and that expulsion would be a breach of Article 8 unless there were serious public order reasons for it. The Court’s recent case-law reflects a general acceptance that removal will normally constitute an interference with family life.[33] Rather than requiring the applicant to establish that there would be insurmountable obstacles to family life being established elsewhere, the Court has placed the burden of proof on the Contracting State to establish that an expulsion decision or refusal to admit would not constitute an interference with family life.[34]
17. A lawful and genuine marriage will be enough to constitute family life between two people,[35] even if the couple are not cohabiting,[36] but a sham marriage will not give rise to family life.[37] Although the most important ‘family’ relationships are those between husband and wife and parent and child, relationships between siblings, between grandparents and grandchildren, and uncle and nephew are all potentially within the scope of ‘family life’, depending on the strength of the emotional ties.[38] A child born of an existing marital union will usually become part of the family from birth and will only cease to be so in exceptional circumstances, even where there has been a voluntary separation between the parents and child.[39] The time at which family relations come into existence (before or after the restriction in question becomes final) is also relevant to the balancing of interests.[40]
18. The presumption in favour of family life between parent and child operates between a child and its natural father, provided he continues to have a level of contact with the child.[41] Family ties may be established through adoption and fostering as well as through biological connections and even by the transfer in fact of genuine parental responsibility.[42] Each case, however, must be considered individually, and whether a relationship amounts to ‘family life’ depends on substance as much as its formal status. For example, whether relationships between adult siblings or between adult children and their parents fall within the scope of Article 8 is a question of fact as to whether there exist ties strong enough to constitute ‘family life’ within the meaning of the Article.[43]
19. It appears from the decision of the Human Rights Committee in Winata v Australia, considered below, that the illegality of a parent’s residence may not be decisive in considering the proportionality of expulsions under the equivalent provisions of the ICCPR. This is also consistent with the approach of the European Court of Justice in Carpenter v Secretary of State for the Home Department.[44] The ECtHR appears to have accepted this approach in relation to the existence of a protected family right, but nonetheless attaches significance to the legality of an applicant’s residence status in assessing whether ‘family life’ has been interfered with, see Solomon v Netherlands (2000) and Chandra v Netherlands (2003).[45] However, it appears as a matter of principle, deriving from the best interests of the child principle, that this factor should not be applied in the case of children when it is established that the children concerned have had no role in the decision to enter the country illegally or remain there without permission.[46]
20. In relation to the question of whether, beyond the existence of family life, a child or a parent may be said to have a private life that might be put in jeopardy by the decision to expel or to refuse entry or to grant a residence permit to a parent, it appears clear that an individual assessment is required as to whether the parent’s deportation or removal in fact from the country would be such as to interfere with “the network of personal, social and economic relations that make up the private life of every human being”.[47] It has long been held that close relationships falling short of family life may fall within the scope of private life, for example the links between a foster parent and a foster child, relationships between fiancés, but it is now recognised in an immigration context, as stated by Judge Martens in Beldjoudi v France (1992) 14 EHRR 801, that ‘expulsion severs irrevocably all social ties between the deportee and the community he is living in and …the totality of those ties may be said to be part of the concept of private life.’[48]
21. Although it appears from expulsion complaints under both Article 3 and Article 8 of the Convention that the ECtHR will not attach particular weight in this context to the consideration that a child is a citizen of the expelling country, whether obtained ius sanguine through a parent or through ius soli, [49] the ECtHR appears to require that each case be given individual consideration, by reference in particular to the age and adaptability of the child and the totality of that child’s personal and social ties in the expelling state, see for example the recent case of Keles v Germany, Judgment of 27 October 2005, considered below. In this regard, in the submission of the Commission, some useful assistance can be derived from the principles developed under the UN Convention on the Rights of the Child relating inter alia to the recognition of children as social actors with human rights, considered below. In the context of any such removal of a child (directly or indirectly), consideration would also need to be given to the principles in Article 3(1) of Protocol 4 of the ECHR[50] and those found in the UN Convention relating to the Status of Stateless Persons and the UN Convention on the Reduction of Statelessness.
Recent Case Law
22. It is for Contracting States to maintain public order by exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens. To that end they have the power to deport aliens convicted of criminal offences. However, their decisions must, insofar as they may interfere with private or family life, be in accordance with the law and be necessary in a democratic society, that is to say justified by a pressing social need and proportionate to the legitimate aim pursued.[51] The ECtHR has recently confirmed that these principles apply to all categories of aliens. Therefore, even long-term immigrants who were born in the host state or who arrived there during early childhood cannot derive an absolute right from Article 8 not to be expelled on the basis of their criminal record.[52] As indicated, any such decision will depend on a range of factors.
23. The leading case of Boultif v Switzerland has been canvassed in the submissions of the parties in these proceedings, and it is therefore not proposed to address Boultif in these submissions other than to point out that the judgment marks a departure in the case law of the ECtHR in respect of immigration controls and respect for family life, and that this should be borne in mind in considering earlier decisions of the Commission and the Court. In the submission of the Commission the decided cases since Boultif reflect the consistent protection of family and private life in a manner that is more exacting on States than previous immigration cases decided by the ECtHR.[53]
24. In the recent case of Maslov v Austria, judgment of 22 March 2007, the ECtHR summarised the criteria relevant to the assessment of whether a fair balance has been struck as between the applicant’s right to respect for his private and family life and the prevention of disorder and crime, as follows:-
- the nature and gravity of the offences committed by the applicant;
- the length of his stay in the host country;
- the period which elapsed between the commission of the offences and the impugned measure, as well as the applicant’s conduct during that period;
- the solidity of social, cultural and family ties with the host country and with the country of destination.[54]
25. In that case, a majority of the Court found a violation of Article 8 in circumstances where the applicant had been living in Austria for 12 years with his parents and siblings, since he was 6 years old, where the offences committed by him were characterised as typical offences of juvenile delinquency, where he had been of good conduct since serving his sentence, and where he had no real or enduring ties with his native Bulgaria.
26. In Sezen v Netherlands, Judgment of 31 January 2006, a case concerning an alien who settled in the host country when already an adult, the Court listed the following considerations as being relevant to the third broad criterion above:-
- the nationalities of the various persons concerned;
- the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life;
- whether the spouse knew about the offence at the time when he or she entered into a family relationship;
- whether there are children of the marriage and, if so, their age;
- the seriousness of the difficulties that the spouse is likely to encounter in the applicant’s country of origin.[55]
27. This last consideration applies mutatis mutandis to the difficulties that the children of the marriage would face in the applicant’s country of origin. In this regard, in its more recent judgment in Üner v Netherlands the Court made explicit two criteria that it stated were already implicit in the criteria identified in the Boultif judgment:-
- the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and
- the solidity of social, cultural and family ties with the host country and with the country of destination.
28. In relation to the best interests and well-being of children, the Court noted that this principle was already reflected in its existing case law[56] and was in line with the Committee of Ministers’ Recommendation Rec (2002)4 on the legal status of persons admitted for family reunification, specifically its recommendation that where the withdrawal of or refusal to renew a residence permit, or the expulsion of a family member is being considered, special consideration should be paid to the best interest and wellbeing of children.
29. In relation to the solidity of ties criterion, the Court stated:-
“[T]he rationale behind the making of a person’s stay in the host country one of the elements to be taken into account lies in the assumption that the longer a person has been residing in a particular country the stronger his or her ties with that country and the weaker the ties with the country of his or her nationality will be…[The Court] observes in this context that not all such migrants, no matter how long they have been residing in the country from which they are to be expelled, necessarily enjoy ‘family life’ there within the meaning of Article 8. Regardless of the existence or otherwise of a ‘family life’, therefore, the Court considers that the expulsion of a settled migrant constitutes interference with his or her right to respect for private life. It will depend on the circumstances of the particular case whether it is appropriate for the Court to focus on the ‘family life’ rather than the ‘private life’ aspect.”
30. In Sezen the Court noted with some concern that none of the domestic authorities involved in the decision-making process appeared to have paid any attention to the possible effects that the refusal of continued residence would have on the applicants’ family life. The first applicant was a short-term immigrant and the second applicant a second generation immigrant, and their children were born in the Netherlands, in 1990 and 1996 respectively. This was a functioning family unit where the parents and children were living together, and the Court recalled in this connection its dictum in Mehemi that domestic measures that prevent members of a family from living together constitute an interference with the right protected by Article 8 and that to split up a family is an interference of a very serious order. According to the Court:-
“These two children have always lived in the Netherlands and its cultural and linguistic environment, and attend school there. Consequently, they can only have minimal ties, if any, to their parents country of origin [Turkey] (see Sen v Netherlands, no.31465/96, 21 December 2001) and, as noted above, they do not speak Turkish. In these circumstances, the Court accepts that following the first applicant to Turkey would mean a radical upheaval for the second applicant and in particular for the couple’s children (see Mehemi v France, judgment of 26 September 1997; see also Recommendation 1504 (2001) of the Parliamentary Assembly of the Council of Europe on the non-expulsion of long-term immigrants), and it finds that they cannot realistically be expected to do so …Having regard to [this finding], the effect of the family being split up therefore remains the same as long as the first applicant continues to be denied the right to reside in the Netherlands.”
31. In Keles v Germany Judgment of 27 October 2005 the Court was not persuaded that the applicant or his wife could not reasonably re-settle in Turkey. However, the applicant’s eldest son was an infant when he came to Germany and the couple’s three other sons had all been born in Germany. The four sons were aged between 6 and 13 years of age when the expulsion order issued and they had received all of their education in Germany. In these circumstances, the Court found that even if the boys had knowledge of the Turkish language they would necessarily have to face major difficulties with regard to the different language of instruction and the different curriculum in Turkish schools. Having regard to the applicant’s long period of lawful and permanent residence in Germany and the minor nature of his offences, but also attaching weight to the difficulties the children could be expected to face if they followed the applicant to Turkey, the Court found that the applicant’s open-ended exclusion from the German territory violated Article 8 of the Convention.
32. In Lupsa v Romania Judgment of 8 June 2006, the applicant had come from Yugoslavia to Romania in 1989, had subsequently been lawfully resident there, learnt Romanian, set up a commercial company and founded a family with a Romanian national. The couple had had a child who was a national both of Romania and of Serbia and Montenegro. Following his deportation in 2003 on national security grounds, his girlfriend, who did not speak Serbian, and their child, who was born in October 2002, had visited the applicant on a number of occasions in Belgrade. These visits ranged from a few days to several months. In considering these facts the Court stated:-
“Since the applicant had indisputably integrated into Romanian society and had a genuine family life, the Court considers that his deportation and exclusion from Romanian territory put an end to that integration and radically disrupted his private and family life in a way which could not be remedied by the regular visits from his girlfriend and their child. Accordingly, the Court considers that there has been an interference in the applicant’s private and family life.”
33. In relation to whether the interference was justified the Court applied its reasoning in the case of Al-Nashif v Bulgaria Judgment of 20 June 2002, in finding that domestic law did not afford the applicant sufficient guarantees against the arbitrary exercise of the executive power of deportation to satisfy the requirement that such interferences be in accordance with a ‘law’ satisfying the Convention requirements of legality. According to the Court:-
“[D]omestic law must afford a measure of legal protection against arbitrary interferences by public authorities with the rights guaranteed by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law …for a legal discretion granted to the executive to be expressed in terms of an unfettered power (see Malone v UK, judgment of 2 August 1984). The existence of adequate and effective safeguards against abuse, including in particular procedures for effective scrutiny by the courts, is all the more important since a system of secret surveillance designed to protect national security entails the risk of undermining or even destroying democracy on the grounds of defending it (see mutates mutandis Rotaru v Romania …).”
34. In Al-Nashif v Bulgaria the ECtHR had held that deportation measures, even on grounds of national security, should be capable of challenge by some form of adversarial proceeding before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information:-
“While the executive’s assessment of what poses a threat to national security will naturally be of significant weight, the independent authority must be able to react in cases where invoking that concept has no reasonable basis in the facts or reveals an interpretation of ‘national security’ that is unlawful or contrary to common sense and arbitrary…Failing such safeguards, the police or other State authorities would be able to encroach arbitrarily on rights protected by the Convention.”
35. These cases are an illustration, therefore, of the manner in which Article 8(2) contains within it a minimum procedural guarantee of the possibility of challenging deportation orders or refusal-of-residence orders for compliance with domestic law. Together with Article 13 of the Convention, this compensates for the non-applicability of Article 6 of the Convention to immigration and asylum decisions.[57] In Al-Nashif, there was, in addition, a violation of Article 13 in conjunction with Article 8 by reason of the absence of any equivalent possibility of challenging such orders on Convention grounds:-
“Quite apart from the general procedural guarantees which Article 1 of Protocol No.7 to the Convention provides in all cases of expulsion of aliens, where there is an arguable claim that such an expulsion may infringe the foreigner’s right to respect for family life, Article 13 in conjunction with Article 8 of the Convention requires that States must make available to the individual concerned the effective possibility of challenging the deportation or refusal-of-residence order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality.”[58]
36. Finally, reference has been made in the submissions of the parties to the judgments of the ECtHR including the judgment of the Grand Chamber in Sisojeva v Latvia. In the submission of the Commission the reasoning that led the Grand Chamber to find that the applicants’ complaints had been overtaken by events and effectively resolved does not take away from the general development of the Court’s case law in this context, as outlined above.
Discrimination contrary to Article 14 ECHR
37. Article 14 of the ECHR prevents discrimination in the enjoyment of the Convention rights on grounds of sex, race, colour, a language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. The Article does not create a free-standing right not to be discriminated against,[59] but one linked to enjoyment of Convention rights.[60] It is not necessary to show a breach of a substantive right, however, to establish a breach of Article 14. The questions which arise in relation to a claim engaging Article 14 are similar to those arising in respect of a qualified right: has there been a difference in treatment in an area within the ambit of the Convention;[61] if so, was it on a ‘status’ ground such as race, sex etc,[62] did the differential treatment have a legitimate aim, and an objective and reasonable justification, ie was there a reasonable relationship of proportionality between the means employed and the aim sought to be realised?[63] Where both Article 8 and Article 14 are pleaded before the ECtHR and where a violation of Article 8 has been found, the Court may decide not to proceed with an analysis of Article 14.[64]
38. Certain forms of discrimination, such as those based on race, sex or legitimacy, are identified as particularly serious. They are marked by a consensus in the Member States to eliminate such forms of discrimination, backed by international instruments, and in such cases a heavier burden is placed upon the State to justify the difference in treatment. For example, an unjustifiable difference in treatment in the operation of the UK Immigration Rules regarding admission of spouses on grounds of gender was held to constitute a breach of Article 14 in conjunction with Article 8 in Abdulaziz.[65] However, in the same case the ECtHR rejected the argument that the Rules also discriminated on grounds of race, an argument which relied on the disproportionate impact the Rules had on immigrants from the Indian sub-continent as constituting indirect discrimination. The broad margin of appreciation which the Court afforded the domestic authorities meant it could not establish any ulterior discriminatory purpose behind government policy. However, in principle the prohibition on discrimination in Article 14 is indeed capable in an appropriate case of extending to indirect discrimination.[66]
39. In the context of immigration the ECtHR has held that the position of nationals and non-nationals is not analogous.[67] So, for example, in the English case of R (G) v Immigration Appeal Tribunal [2005] 1 WLR 1445 the Court of Appeal found that it was not contrary to Article 14 for asylum and immigration appeals to be by way of statutory appeal rather than by way of judicial review on the grounds that non-nationals seeking entry or asylum stand in a fundamentally different legal situation than those who can enter by right. Furthermore, the ECtHR has also confirmed that preferential treatment of persons with close links to the receiving state, or from a state with close links to the receiving state (as for example from the special legal order of the European Union), are prima facie justifiable.[68] In Abdulaziz, the ECtHR stated, in upholding an immigration rule favouring those who were born or whose parent was born in the country, that there were persuasive social reasons for giving special treatment to those whose link with a country stems from birth within it.[69] In the current proceedings, while the parents of the citizen children are not nationals, the children are nationals.
40. The application of Article 14 together with Article 8 to the exercise of a statutory discretion in the context of decisions on immigration status was considered by the English Court of Appeal in R (Montana) v Secretary of State for the Home Department [2001] 1 WLR 552, where the Court concluded that, in giving the Secretary of State discretion whether to grant a child citizenship, Parliament could not have intended that he should have regard to the fact that other children were entitled to citizenship as of right, as otherwise the discretion would become a duty. As Simor & Emmerson have pointed out, however, this reasoning is difficult to follow in that this point may be relevant to the appropriate remedy under the UK Human Rights Act 1998 but it is not apparent how it could have a bearing on the question of whether the decision at issue (whether described as a power or a duty) in fact breached a Convention right.[70]
Principles Deriving from Other International Human Instruments to which Ireland is a Party
41. The right to family life, and more specifically the right to family integrity and association (or the right to live together as a family), is a well established fundamental right recognised in international law. As the International Court of Justice affirmed in 1989, “[t]he integrity of a person’s family and family life is a basic human right protected by the prevailing principles of international law which derive not only from conventional international law or customary international law but from general principles of law recognised by civilized nations.”[71] The Universal Declaration of Human Rights affirms that “[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State,” and that “[n]o one shall be subjected to arbitrary interference with his … family. Everyone has the right to the protection of the law against such interference or attacks.”[72] Although the Declaration is not a treaty, its provisions have been widely recognised as binding customary international law.[73]
42. Article 17 of the International Covenant on Civil and Political Rights (“the ICCPR”)[74] affords protection inter alia to everyone’s privacy and family. This provision is supplemented by specific provisions on the protection of the family (Article 23) and the protection of children (Article 24). Article 17(1) prohibits ‘arbitrary or unlawful interference’ or ‘unlawful attacks’ by the state itself with a person’s privacy or family, whereas Articles 23 and 24 mainly relate in their formulation to the positive obligation of the state to protect the family and children. Although Article 17 does not contain an express clause providing for permissible restrictions, the prohibition on arbitrary interference is interpreted in a manner similar to the restriction clauses under certain other provisions of the Covenant. So, in its General Comment No.16(32) the United Nations’ Human Rights Committee which supervises the ICCPR[75] stated:-
“The expression ‘arbitrary interference’ is also relevant to the protection of the right provided for in Article 17. In the Committee’s view the expression ‘arbitrary interference’ can also extend to interference provided for under the law. The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.”
43. The ICCPR reiterates the principle that the family is the “natural and fundamental group unit of society,” entitled to protection by the State, and prohibits “any arbitrary or unlawful interference” with individuals’ right to family life (Arts. 23(1) and 17) The right to family life is non-derogable; it cannot be subject to selective application depending on the immigration status of an individual. The United Nations General Assembly has declared that it applies to citizens and non-citizens equally.[76] The Human Rights Committee in its General Comment 15 held that “the rights set forth in the [ICCPR] apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness . . .. The general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens.”[77]
44. International law demands that interference with family integrity and association[78] cannot be arbitrarily imposed. In an immigration context all arbitrary deportation violates international law,[79] and hence in the protection of family rights in expulsion cases there is an important procedural element. In this respect, arbitrariness is equated first with a lack of formal rules provided for in advance and a lack of basic procedural protections, particularly the requirement of notice and the opportunity to be heard and to present and challenge evidence.[80] However, there is a substantive component as well as a procedural component to the arbitrariness inquiry.[81] Courts addressing the issue have found it not sufficient that interference with family life simply pass a threshold of procedural regularity. Rather, they have held that a state’s interference with an individual’s right to family life is legitimate only when it is a response to a lawful state interest and when the interference with the individual’s rights is outweighed by that state interest. The reasonableness and proportionality of measures interfering with family integrity and association have to be evaluated on a case-by-case basis.
45. The Human Rights Committee has examined the implications of deportation on the right to family life in several cases involving individual communications. It has determined that the exclusion of a person from a country where close members of his family are living can amount to an interference with family life within the meaning of Article 17 and that a state in such circumstances is called upon to make a reasonable determination whether the interference with family life is proportionate to the state’s interests in removing a specific individual.[82] Furthermore, the Human Rights Committee has concluded that the procedural guarantees of Article 13 ICCPR are ‘applicable to all procedures aimed at the obligatory departure of an alien, whether described in national law as expulsion or otherwise.’ [83]
46. According to General Comment 1641 (on Article 17), the prohibition of ‘arbitrary interference’ is ‘intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances’. This provision was considered in Winata v. Australia,[84] an important decision because it concerned a claim on the part of an Indonesian couple who were living in Australia without authorisation but whose Australian born son had acquired Australian citizenship. The couple had overstayed on a temporary visa and later applied for refugee status but were refused. Their son was born in Australia and acquired Australian citizenship on reaching 10 years of age. The parents argued that if they were deported to Indonesia and their son remained in Australia, he would no longer have any family in Australia and if he accompanied his parents he would be ‘completely at sea and at considerable risk if thrust to Indonesia’. They contended that their removal would amount to an interference with their family life, which could not be considered reasonable, and would amount to an arbitrary interference within the meaning of Article 17 ICCPR. The Australian Government argued that the Covenant only protects the right to family life, but not the right to family life in a particular country. It contended that if the parents returned to Indonesia they could return to visit their son, a situation analogous to that experienced by many families whose children were in boarding school.
47. The reasoning of the Committee at paragraphs 7 to 9 of its Decision was as follows:-
7.1 As to the claim of violation of article 17, the Committee notes the State party's arguments that there is no "interference", as the decision of whether Barry will accompany his parents to Indonesia or remain in Australia, occasioning in the latter case a physical separation, is purely an issue for the family and is not compelled by the State's actions. The Committee notes that there may indeed be cases in which a State party's refusal to allow one member of a family to remain in its territory would involve interference in that person's family life. However, the mere fact that one member of a family is entitled to remain in the territory of a State party does not necessarily mean that requiring other members of the family to leave involves such interference.
7.2 In the present case, the Committee considers that a decision of the State party to deport two parents and to compel the family to choose whether a 13-year old child, who has attained citizenship of the State party after living there 10 years, either remains alone in the State party or accompanies his parents is to be considered "interference" with the family, at least in circumstances where, as here, substantial changes to long-settled family life would follow in either case. The issue thus arises whether or not such interference would be arbitrary and contrary to article 17 of the Covenant.
7.3 It is certainly unobjectionable under the Covenant that a State party may require, under its laws, the departure of persons who remain in its territory beyond limited duration permits. Nor is the fact that a child is born, or that by operation of law such a child receives citizenship either at birth or at a later time, sufficient of itself to make a proposed deportation of one or both parents arbitrary. Accordingly, there is significant scope for States parties to enforce their immigration policy and to require departure of unlawfully present persons. That discretion is, however, not unlimited and may come to be exercised arbitrarily in certain circumstances. In the present case, both authors have been in Australia for over fourteen years. The authors' son has grown in Australia from his birth 13 years ago, attending Australian schools as an ordinary child would and developing the social relationships inherent in that. In view of this duration of time, it is incumbent on the State party to demonstrate additional factors justifying the removal of both parents that go beyond a simple enforcement of its immigration law in order to avoid a characterisation of arbitrariness. In the particular circumstances, therefore, the Committee considers that the removal by the State party of the authors would constitute, if implemented, arbitrary interference with the family, contrary to article 17, paragraph 1, in conjunction with article 23, of the Covenant in respect of all of the alleged victims, and, additionally, a violation of article 24, paragraph 1, in relation to Barry Winata due to a failure to provide him with the necessary measures of protection as a minor.
8. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the removal by the State party of the authors would, if implemented, entail a violation of articles 17, 23, paragraph 1, and 24, paragraph 1, of the Covenant.
9. In accordance with article 2, paragraph 3 (a), of the Covenant, the State Party is under an obligation to provide the authors with an effective remedy, including refraining from removing the authors from Australia before they have had an opportunity to have their application for parent visas examined with due consideration given to the protection required by Barry Winata's status as a minor. The State party is under an obligation to ensure that violations of the Covenant in similar situations do not occur in the future.
48. Similarly, in its later decision in In Madaferri v Australia (2004),[85] a case in which there were four minor children and the father had a mental illness that was found to have been partially contributed to by Australia's treatment of him, the Human Rights Committee concluded that the family would suffer hardship if they were forced to choose between following Mr Madafferi to Italy or splitting up the family by some members remaining in Australia. Neither Mrs Madafferi nor the children spoke Italian, and they would have to look after their sick father in a foreign country. Accordingly, the Committee found that if Australia deported Mr Madafferi it would be arbitrarily interfering with the family in violation of article 17(1) and breaching its obligations to protect families and children, in violation of articles 23 and 24(1) respectively.
49. Article 26 of the ICCPR prohibits discrimination in law including in any field regulated and protected by public authorities. In relation to one’s nationality, it has been considered by the Human Rights Committee where a law provided for restricted pension entitlements for retired soldiers on the basis of their so-called “new nationality”[86].
50. The United Nations Convention on the Rights of the Child (“CRC”)[87] revolves around four general provisions; the ‘best interests of the child’ principle (Article 3), the non-discrimination principle (Article 2), the right to maximum survival and development (Article 6) and the ‘participation’ principle (Article 12).[88] Its Preamble refers to the family as “the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children”.
51. The ‘best interests of the child’ principle is now principally embodied in international law in the CRC which has been ratified by the overwhelming majority of states including Ireland and, in relation to the best interests principle, is probably declaratory of customary international law.[89] The CRC provides at Article 3(1): “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Under Article 9(1), the Convention requires that “State Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.” Article 9(2) further specifies that “all interested parties shall have a right to participate in proceedings pursuant to Article 9(1).” When read in conjunction with the non-discrimination principle under Articles 2(1) and 2(2), any “distinction, exclusion, restriction or preference” based on grounds such as “national or social origin… birth or other status” which cannot be justified as reasonable and objective will constitute prohibited discrimination.[90] Article 2(2), meanwhile obliges States to “take all appropriate measures “to protect the child from “all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.”
52. These State obligations “to respect and ensure rights” is further amplified by Article 3(2) which provides that States are obliged to “ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures”.
53. By virtue of Article 8(1), the State is obliged to “respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.” Where there is an illegal deprivation of the child’s identity, restitution is required.[91] Under Article 18, parents (or legal guardians) have the primary responsibility for the upbringing and development of the child, with the best interests of the child their basic concern. They must be supported in their child-rearing responsibilities by the State.[92] Where the child is deprived of his or her family environment, the child is entitled to special protection and assistance (Article 20). Where the State’s action results in family separation, such as in the case of deportation, the State assumes certain obligations regarding the child’s continuing relationship with the separated parent (Articles 9(1), 9(4)). Under Article 10(1), “applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner.”
54. In relation to the meaning of ‘all actions concerning children’ in Article 3,, the High Court of Australia in Minister for Immigration and Ethnic Affairs v Ah Hin Teoh[93] stated that “a broad reading and application of the provisions in Article 3, one which gives to the word ‘concerning’ a wide-ranging application, is more likely to achieve the objects of the Convention”, and it is generally accepted that deportation or residency proceedings concerning the parent of a minor child amount to an “action concerning children” for the purposes of Article 3(1) of the CRC.[94]
55. Since Ireland ratified the CRC in September 1992 a number of important principles have been developed by the Committee on the Rights of the Child, particularly in its General Comment No.7(2005), relating to the specific rights of children in early childhood. These General Comments were adopted in order inter alia to draw States parties’ attention to their obligations towards young children. General Comment No. 7 emphasises the importance of recognition of children as social actors during their ‘early childhood’, in respect of which the Committee adopted a working definition of the period below 8 years of age. The principles relevant to the context of immigration decisions affecting such children and their parents include the following:
• Young children are entitled to special measures of protection in accordance with their evolving capacities and the progressive exercise of their rights (paragraph 3);
• Children, including the very youngest children, should be recognised as active members of families, communities and societies, to be respected as persons in their own right and recognised as having their own concerns and interests (paragraph 5);
• Young children’s earliest years are the foundation inter alia for their cultural and personal identity. Their experiences of growth and development vary inter alia according to their living conditions, family organisation, care arrangements and education systems (paragraph 6);
• The development of young children is dependent on and built around close relationships with a small number of key people, most often parents, members of the extended family and peers, as well as carers and teachers (paragraph 8);
• All decision-making (including administrative and judicial decision-making) that directly or indirectly affects young children must take account of the best interests of those children (paragraph 13);
• Parents are normally the major conduit through which young children are able to realise their rights (paragraph 16). States Parties should respect the primacy of parents or legal guardians inter alia by not separating children from their parents unless it is in the child’s best interests and not disrupting the parent-child relationship through enforced separations (paragraph 18 and paragraph 36(b)).
56. In the United States the general principles embodied in the CRC have been relied on although the Convention itself has not been ratified or implemented into municipal law through enabling legislation, that is, certain US courts have recognised it as indicative of customary international law, Beharry v. Reno, 158 F. Supp. 2d 584 (E.D.N.Y. 2002) and Mojica v. Reno, 970 F. Supp. 130 (E.D.N.Y. 1997), are the leading cases relying on the best interests principle to invalidate summary deportation of persons with strong family ties to the United States. In these cases it was held that the categorical denial of hearings to aliens convicted of certain crimes would violate principles of customary international law which require balancing of equities and, where the non-citizen has a citizen child, of the best interests of that child as well. In Mojica the petitioner arrived in the U.S. at age 12 and lived there for 9 years, had a large family in the United States (but no children himself), and had no relations in his native Panama; In Beharry the petitioner had lived there for 25 years, was married, and had two citizen children. The Court looked to the CRC as evidence of customary international law and, in order to bring US immigration law into harmony with international law, the Court remanded the cases to the relevant immigration agency for hearings on the possibility of discretionary relief from deportation based on the hardship to the alien’s families.[95]
57. In Baker v. Canada[96], the Canadian Supreme Court considered whether a senior immigration officer had abused his discretion when he denied to an alien mother of four citizen children an exemption to the requirement that applicants for permanent residency apply from outside Canada. Mavis Baker, of Jamaican nationality, had lived and worked as a servant for eleven years in Canada, having entered that country on a visitor’s visa. In that period she bore four children, all of whom had Canadian nationality. In the deportation proceedings commenced after she was eventually discovered, she appealed to the hardship clause in the Canadian Immigration Act relying, inter alia, on the detriment to her children in the event of her deportation. The Immigration Act allowed for exemptions on grounds of ‘humanitarian and compassionate considerations.’
58. The Canadian Supreme Court stated that the CRC established “the importance of being attentive to the rights and best interests of children when decisions are made that relate to and affect their future”.[97] While the CRC had no direct application within Canadian law because Canada had ratified but not passed implementing legislation for the treaty, its values could still be used to “help inform the contextual approach to statutory interpretation and judicial review.”[98] Thus, together with the objectives of the Act and guidelines by the Ministry to immigration officers which reflected a concern for family unity, the CRC required that the Immigration Act’s compassionate and humanitarian considerations be read to include a consideration of the interests of children, such that failure to do so was an abuse of discretion. According to the Court:-
“[B]ecause the reasons for this decision do not indicate that it was made in a manner which was alive, attentive or sensitive to the interests of Ms Baker’s children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation, and must, therefore, be overturned.” [99]
Later in the judgment, the Supreme Court observed:
“This is not to say that children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying an humanitarian and compassionate claim even when children’s interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decision will be unreasonable.” [100]
59. The High Court of Australia has also relied on the CRC to hold that the best interests of the child should be given primary consideration in deportation proceedings. In Minister for Immigration and Ethnic Affairs v Teoh,[101] the Court held that the Immigration Review Panel failed to consider the best interests of the child, as required under the CRC, when it recommended against allowing a petition for residency by a Malaysian citizen father of several resident children. The Immigration Review Panel had given primary consideration to the question of the petitioner’s ‘good character’ without however considering the best interests of his children. The Court held that the CRC required that consideration be given to the best interests of the child. The Convention had not been implemented into law in Australia, but the Court held that its ratification created a legitimate expectation on the part of the claimants that administrative decision makers would act in conformity with the Convention.
C. Requirement for an Effective Remedy
60. While Finlay Geoghegan J did not find it necessary to deal with the applicability of the O’Keeffe test[102], as the question of whether this is the appropriate test to vindicate constitutional (or, for that matter, Convention) rights may yet arise on this appeal, it seems appropriate to consider it.
61. While the context of O’Keeffe was very much that of a specialist tribunal making policy decisions in an area which did not readily lend itself to judicial review, in the subsequent sixteen years this decision has been extended to applications for judicial review of all manner of administrative decisions, even where (as here) there is no specialist element involved. The application of this test reached its apotheosis in the judgment of O’Sullivan J. in Aer Rianta v. Commission for Aviation Regulation[103]:-
“... the kind of error that produces invalidity is one which no rational or sane decision maker, no matter how misguided, could essay. To be reviewably irrational it is not sufficient that a decision maker goes wrong or even hopelessly and fundamentally wrong: he must have gone completely and in inexplicably mad; taken leave of his senses and come to an absurd conclusion. It is only when this last situation arises or something akin to it that a court will review the decision for irrationality.”[104]
62. If this were the standard to be applied, then, in effect, we would have reverted back to the test which prevailed in Re O Laighleis[105], namely, that an administrative decision could only be challenged on grounds of bad faith. Re O’Laighleis was, of course, formally overruled by this Court in The State (Lynch) v. Cooney. [106]
63. The O’Keeffe test is, moreover, difficult to align with other relevant tests in this area. Where, for example, the applicant challenges a decision which is based on the “opinion” of the Minister or other decisions-maker, the respondent is required to demonstrate that the decision-maker acted bona fide; that the decision was factually sustainable and that the decision is not unreasonable: see Kiberd v. Hamilton.[107] This seems at odds with the O’Keeffe requirement which requires an applicant to demonstrate that “the decision-making authority had before it no relevant material which would support its decision.”[108] Some members of this Court in L & O v. Minister for Justice, Equality and Law Reform[109] expressly called for the applicability of this test in the area of fundamental rights to be subject to fuller argument.[110]
64. It may also be noted that the O’Keeffe test was the subject of adverse comment by Jacobs AG in SIAC Construction Ltd v. Minister for Social Welfare.[111] This was a public procurement case where in the High Court Laffoy J. applied the standard O’Keeffe test. Following an appeal, this Court made a reference to the Court of Justice pursuant to Article 234 EC. While the Court of Justice did not have to address this question, Jacobs AG thought that the “test for objectivity should be ... rather less extreme.”[112] If this standard of review is thought to be insufficiently rigorous for public procurement purposes, then one might query whether this test is suitable in immigration matters.
65. Finally, it might be added that such a restrictive test as O’Keeffe test would also seems at odds with the Constitution’s guarantee in Article 40.3.1 and the very similar guarantee contained in Article 13 ECHR. Both provisions guarantee an effective remedy. The query certainly arises as to whether the O’Keeffe test satisfies these criteria.
D. Impact of Chen on L & O
66. In L & O v Minister for Justice, Equality and Law Reform[113] this Court rejected what came to be described as the “anchor child” argument. In other words, a majority of the Court held that the Minister could still proceed to effect the deportation of the parents of Irish born children who were Irish citizens. It was not in dispute but that these children were entitled to reside in the State and could not themselves be deported. Nor was there any suggestion that the parents had themselves engaged in criminal behaviour or posed any form of public order concerns. Hardiman J. summed up the position of the majority thus:-
“A child has a personal right to the society and nurture of his parents. The latter have no personal right to reside in this State. The ordinary consequence of these facts is that the parents will rear and nurture the child elsewhere. Does the fact that a child, alone of his family, is an Irish citizen alter that position? The answer depends on whether the child's right to the Society and nurture of his family is a right to enjoy these things in Ireland. The applicants submission seems to me to assume, rather than to establish, that it is. Decisions as to nurture and rearing are normally matters for the parents, to be taken within the scope of their abilities, resources and entitlements. The State's right to restrict the exercise of family rights within the State by the deportation of a non-national parent of an Irish born child has already been affirmed in Osheku and Pok Sun Shun: these cases have not been overruled. Accordingly it seems to me that the existence of an Irish born child does not fundamentally transform the rights of the parents, though it requires the specific consideration of the Minister who must reasonably be satisfied of the existence of a grave and substantial reason favouring deportation. Whether this position is altered by the attribution to the child of an intention to remain in Ireland is the next point arising from the appellants submissions.
The statement of Finlay C.J. in Fajujonu that the parents "... are entitled to assert a choice of residence on behalf of their infant children, in the interests of those infant children…" requires close analysis for its proper construction. This case has been expressly pleaded on the basis that it is the Irish born child himself who has, in his first few days or weeks of life, formed a wish and intention to reside in Ireland. This is a contrived and wholly unrealistic statement.
I do not consider that a parent in taking a decision in relation to the welfare, education or residence of a child can realistically be described as exercising the child's choice for it. On the contrary, such parent is making his or her own decision for or on behalf of the child. This, however, is a parental decision, made in the ordinary course of the care and custody of a child and not a delegated exercise of some notional authority of the child's. The myriad decisions, ranging from crucial to banal, which parents habitually take in relation to children are not usually so analysed as to their legal character and would not be here unless there was some point to be gained. In the case of an infant of about one year, it is wholly unrealistic to regard a decision as to place of residence as being anything but the parents' decision. As such, it is constrained by the parents' capacities: they are not at large in the decisions they can take but constrained by their material circumstances, their own needs and entitlements and the laws which apply to them. I believe that what the parents have done in this case was aptly described by Barrington J. in Fajujonu: they have posited on the child a wish to remain in Ireland. But this wish is wholly notional: the only persons at present capable of wishing or electing anything in relation to residence are the parents: the decision is theirs, subject only to their capacity and the laws applying to them.
……..What is unusual about the present case is that the child has a right, which is not shared by the parents, which he is at present incapable of exercising. Accordingly, he will be bound by whatever decision the parents may lawfully make in his regard. A decision about a child's medical treatment is, prima facie, within the authority of his family. A decision about an alien parents desire to live in the State is not.
In my view, the artificiality of the applicants' contention emerges clearly from the proceedings which they have launched. In each case, the statements required to ground the application for judicial review was amended to include pleadings specific to the Irish born child. In the L case, the amended statement filed the 14th of January, 2000 says at para. (viii):
"The sixth-named applicant was born on the 2nd of November 2001 in University Hospital Galway and is the child of the first-named and second-named applicants. The sixth-named applicant wishes to and intends to reside in the State of which he is a citizen and as such has a right to do so." (Emphasis added)
In the case of the O proceedings,….the title in the proceedings themselves were amended to include the Irish born child, Osaze Joshua, as an applicant. Para. (x) of the amended statement reads as follows:-
"The second-named applicant was born on the 4th of October 2001 in Mayo General Hospital and is the child of the first-named applicant and Mrs. Flora Osayande, the first-named applicant's wife. The second-named applicant wishes to and intends to reside in the State of which he is a citizen …"(Emphasis added)
I repeat that it is unreal to think or speak in terms of an infant one year old having wishes or intentions. He is both practically and legally incapable of forming an intention and if a wish can rationally be posited on him, it can only be a wish to be with his parents.
The form of words used seems to me to reflect consciousness on the part of the pleader of a great difficulty in the applicant's case, and his attempt to address it. The parents undoubtedly have wishes and views as to where the family should reside. But they lack the power and capacity themselves to decree that they or their children (other, perhaps, than the Irish born child) will reside in this State. But the Irish born child, as a citizen, is said to be in a different position. Accordingly the parents' wish, which they lack the capacity to translate into an effective decision, is expressed instead as the wish and intention of the new born child. And if that wish and intention can be made effective, it is proposed that that fact will itself "anchor" the rest of the family to this jurisdiction.
There is no doubt that the Irish born child, in each case, when he reaches his majority, will be capable of deciding to reside in this country if he so wishes. But his status as an Irish citizen does not enable him now to express a wish, or form an intention, which is plainly beyond the capacity of a child in his first year of life. The form of words quoted above is designed to avoid or obscure this contradiction. The phrase "… on behalf of …" which is also used in this connection, is likewise unhelpful, extending as it does to two separate meanings which require to be distinguished: "…as regards or on the side of…" but also "…as agent for...". It is in the former sense only that the phrase can properly be used in the present context. There can be no question of a delegation of a capacity or authority which the child is not himself in a position to exercise.
…….In other words, the parents have themselves decided, in the exercise of their own powers, and not as agent or surrogate for the child, where they wish him to live. His place of residence will be decided by his parents and (like every other decision) this decision will be subject to the constraints of what they are practically and legally entitled and able to do. There simply does not exist a notional, inviolable decision of the child to which every other consideration must yield.”[114]
67. It must be said that it is frankly difficult to align this (critical) aspect of L & O with the subsequent decision of the European Court of Justice in Chen.[115] Ms. Chen arrived in the UK when she was six months pregnant with her second child. That child, Catherine Chen, was born in Belfast on the 16th September 2000 and her parents immediately obtained an Irish passport for her.[116] As the Court of Justice explained, Ms. Chen did not at all seek to disguise the fact that she regarded Catherine as an “anchor” child in this sense:-
“It is common ground that Mrs Chen took up residence in the island of Ireland in order to enable the child she was expecting to acquire Irish nationality and, consequently, to enable her to acquire the right to reside, should the occasion arise, with her child in the United Kingdom.”[117]
68. The precise issue then before the Court was whether the presence of such an anchor child could be prayed in aid to enable Ms. Chen to continue to reside in the United Kingdom, the refusal by the UK authorities of a residence permit notwithstanding. The Court answered this question affirmatively:-
“On the other hand, a refusal to allow the parent, whether a national of a Member State or a national of a non-member country, who is the carer of a child to whom Article 18 EC and Directive 90/364 grant a right of residence, to reside with that child in the host Member State would deprive the child-?s right of residence of any useful effect. It is clear that enjoyment by a young child of a right of residence necessarily implies that the child is entitled to be accompanied by the person who is his or her primary carer and accordingly that the carer must be in a position to reside with the child in the host Member State for the duration of such residence (see, mutatis mutandis, in relation to Article 12 of Regulation No 1612/68, Baumbast and R, paragraphs 71 to 75).
For that reason alone, where, as in the main proceedings, Article 18 EC and Directive 90/364 grant a right to reside for an indefinite period in the host Member State to a young minor who is a national of another Member State, those same provisions allow a parent who is that minor’s primary carer to reside with the child in the host Member State.”[118]
69. The contrast, therefore, between this aspect of L & O and Chen is quite striking. While the circumstances of birth was regarded by the majority in L & O as a relevant consideration, this was (by necessary implication) rejected in Chen, especially given that a pregnant Ms. Chen had travelled to Northern Ireland to give birth specifically in order to acquire Irish nationality for her child. Both female adult applicants in L & O were pregnant when they arrived in Ireland and gave birth afterwards.[119] The parents in L & O were likewise the primary carers of the young children in their case.[120]
70. In these circumstances, it is submitted that this Court may well be required to address what would appear to be a striking difference between this aspect of L & O and that which was adopted by European Court of Justice in Chen. If, for example, a deportation issue arose in this State in respect of a non-EU national who was the primary carer of a young child who was a citizen of an EU State other than Ireland, then the courts would be obliged to give effect to the Chen principle and respect the ‘anchor child’ principle. Why, it might be asked, should the principle be any different in the present cases simply because the facts of the present cases were wholly internal to this State? In these circumstances, it is submitted that this Court may require to re-consider this aspect of L & O.
Patrick Dillon-Malone
Gerard Hogan
1 May 2007
-----------------------
[1] Sen v Netherlands (2003) 36 EHRR 7. In the context of family reunion and separation the distinction between negative and positive obligations may not be of great significance, see the comments of Judge Martens in Gul v Switzerland (1996) 22 EHRR 93; also Abdulaziz, Cabales and Balkandali v UK (1985) 7 EHRR 471, para.67
[2] Airey v Ireland (1979) 2 EHRR 305; Golder v UK (1975) 1 EHRR 524, paras. 28-36
[3] Winterwerp v Netherlands (1979) 2 EHRR 387, para.60; Artico v Italy (1980) 3 EHRR 1, para.33; Ashingdane v UK (1985) 7 EHRR 528, para.57
[4] E.g., Buckley v UK (1996) 23 EHRR 101, paras 74-75
[5] See the comments of Lord Hope in R v DPP ex parte Kebiline [1999] 4 All ER 801
[6] See Handyside v UK (1976) 1 EHRR 737
[7] Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, para 67
[8] Rasmussen v Denmark (1984) 7 EHRR 371, para 40 ‘Very weighty reasons would have to be advanced before a difference in treatment on grounds of sex could be considered compatible with the Convention’:
[9] R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 para 31 per Laws LJ
[10] See also R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532; Singh, Hunt & Demetriou, Is there a role for the ‘margin of appreciation’ in national law after the Human Rights Act/ [1999] 1 EHRLR 15-22; and Jackson & Warr, Immigration Law and Practice (Looseleaf, 10th release, August 2005), para 3-37
[11] E.g., Golder v UK (1975) 1 EHRR 524, para 44
[12] Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471; D v UK (1997) 24 EHRR 423
[13] This is well illustrated by the most recent cases on family life discussed below.
[14] Sunday Times v UK (1979) 2 EHRR 245; Smith & Grady v UK (1999) 29 EHRR 493
[15] Article 18 of the Convention
[16] E.g., GK v Poland, judgment of 20 January 2004
[17] E.g., Dougoz v Greece (2002) 34 EHRR 61. para 55
[18] E.g, Huvig v France (1990) 12 EHRR 528; see also Lupsa v Romania. judgment of 8 June 2006 and Al-Nashif v Bulgaria, judgment of 20 June 2002, discussed below
[19] Chassagnou v France (1999) 7 BHRC 151
[20] E.g., Dudgeon v UK (1981) 4 EHRR 149
[21] (1991) 14 EHRR 229, para 50; also Hertel v Switzerland (1998) 28 EHRR 534, para 46
[22] Restrictions which impair the ‘very essence’ of the right will be disproportionate, see for example F v Switzerland (1987) 10 EHRR 411
[23] E.g., Camenzind v Switzerland (1997) 28 EHRR 458, para 45
[24] Observer & Guardian v UK (1991) 14 EHRR 153, para 59; Vogt v Germany (1996) 21 EHRR 205, para 52
[25] Citing Boujlifa v France (1997) 30 EHRR 419 and Bouchelkia v France (1997) 25 EHRR 886, cases in which the expulsions of applicants who had lived in France respectively since the age of five and the age of two were upheld following their conviction of serious offences. Cf. Moustaquim v Belgium (1991) 13 EHRR 802, Beldjoudi v France (1992) 14 EHRR 801 and particularly Mehemi v France, 26 September 1997, RJD 1997-VI 51 which case may be the precursor for Boultif in the development of the ECtHR’s jurisprudence in this context.
[26] Sorabjee v UK, No.23938/93, 23 October 1995, unpublished. See also PP v UK (1996) 21 EHRR CD 81
[27] Gul v Switzerland (1996) 22 EHRR 93
[28] Berrehab v Netherlands (1989) 11 EHRR 322; also Ciliz v Netherlands [2000] FLR 469
[29] Citing Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471
[30] MacDonald’s Immigration Law and Practice (6th ed, 2005), 426-440; and Forder, Family Rights and Immigration Law: A European Perspective (2003) 6 IFLJ 2b, who notes that of the 8 cases decided by the ECtHR between 1996 and 1999 a violation was found in only one. In addition, the author discerns a strong pattern of dissent from the majority conclusions in these cases. See also Jackson & Warr, Immigration Law and Practice (Looseleaf, Release 10, August 2005), paras.3-32 et seq; Symes & Jorro, Asylum Law and Practice (2003), 394-401; Simor & Emmerson, Human Rights Practice (Looseleaf, release 11, January 2006) paras.8.107 et seq; Reid, A Practitioner’s Guide to the European Convention on Human Rights (2nd ed, 2004), 377-86.
[31] See JM v Netherlands; also Sen v Netherlands.
[32] E.g., Johansen v Norway (1997) 23 EHRR 33; X,Y & Z v UK (1997) 24 EHRR 143
[33] See for example Amrohalli v Denmark, judgment of 11 July 2002, where the Court spoke of the ‘obvious and serious difficulties’ that would be faced by the applicant’s wife and children if they were to live with him in Iran.
[34] In Yildiz v Austria (2003) 36 EHRR 32 the Court stated:-‘Nevertheless, the Court considers that, as regards the possible effects of the residence ban on his family life, the authorities failed to establish whether the second Applicant could be expected to follow him to Turkey, in particular whether she spoke Turkish and maintained any links, other than her nationality with that country.’ In Jakupovic v Austria [2003] 2 FCR 361 the Court required ‘very weighty reasons’ to justify the expulsion of a 16 year old to a country which had recently experienced armed conflict where he had no close relatives, separating him from his mother, despite his criminal convictions.
[35] Abdulaziz, Cabales and Balkandali v UK (1985) 7 EHRR 471, para.62
[36] E.g., Kroon v Netherlands (1994) 19 EHRR 263. But the fact of cohabitation, as opposed to marriage, may be relevant in deciding whether the interference is proportionate, see Söderbäck v Sweden (1998) 29 EHRR 95
[37] This follows from the principle that it is family life, not just a family, that is protected. But a formally invalid marriage believed valid by the parties gives rise to family life, see A & A v Netherlands (1992) 72 DR 118
[38] See e.g., Boyle v UK (1995) 19 EHRR 179; Moustaquim v Belgium (1991) 13 EHRR 802. See also the definition of ‘the family’ under Article 5 of the Convention on the Rights of the Child.
[39] Berrehab v Netherlands, op.cit; Ciliz v Netherlands [2000] 2 FLR 469, paras 33,44; Sen v Netherlands (2003) 36 EHRR 7. Deportation while custody/access proceedings are in being will give rise to a prima facie violation of the Convention.
[40] Yildiz v Austria (2003) 36 EHRR 32; Dalia v Dalia v France E.Ct H.R. February 19, 1998, RJD 1998–I, p. 92; Kaya v Turkey (1998) 28 EHRR 1
[41] Berrehab v Netherlands, op.cit. Even if at the time of the birth the relationship between the parents had ended, Keegan v Ireland (1994) 18 EHRR 342. But the presumption may be defeated by a total lack of interest or contact by the father, Boughanemi v France (1996) 22 EHRR 228.
[42] In Singh v Entry Clearance Officer, Delhi 2004 INLR 515 the English Court of Appeal recognised that with the enormous social and cultural changes which have taken place in the last decades much greater flexibility may be applied to what constitutes family life. But absent special facts it appears that biological ties to one’s extended families, e.g., adult siblings and their families, will generally not suffice in an expulsion context, see A & Family v Sweden (1994) 18 EHRR CD 209.
[43] Nasri v France (1995) 21 EHRR 458; Advic v UK 20 EHRR CD 125; A & Family v Sweden (1994) 18 EHRR CD 209; also MacDonald’s Immigration Law and Practice (6th ed, 2005) 422-25
[44] Case C-60/00 Carpenter [2002] ECR I-6279
[45] Admissibility Decisions of the 5 September 2000 and 13 May 2003 respectively. See generally Forder, paras 4.4 et seq
[46] Ibid, para 6.2, discussing the case law of the Dutch superior courts in this context applying the provisions of the CRC.
[47] Slivenco v Latvia [2004] 2 FCR 28; R) v Secretary of State for the Home Department, ex parte Razgar (HL) [2004] 3 WLR 58; also C v Belgium, judgment of 7 August 1996, para 25.
[48] See also Nasri v France (1995) 21 EHRR 458: Uner v Netherlands, judgment of 18 October 2006.
[49] See Reid, A Practitioner’s Guide to the European Convention on Human Rights (2nd ed, 2004), 381-82, citing Commission decisions No.11970/86, Decision of 13 July 1987; No. 23938/93, Decision of 23 October 1995; No.25297/94, Decision of 16 January 1996; and No.24865/94, Decision of 23 October 1995.
[50] Article 3(1) of Protocol 4 provides that “No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national.”
[51] Üner, Boultif, Dalia, Mehemi
[52] Üner, paragraph 55.
[53] The authors of MacDonald’s Immigration Law and Practice (6th ed, 2005), 430 et seq., point out that the English Courts appear to have been slow in following the Strasbourg Court’s lead.
[54] Citing in this last connection Benhebba v France, judgment of 10 July 2003 with references therein to Boultif and Mehemi; also Üner, relating to the situation of a long-term immigrant having a life companion and children of a young age, all being nationals of the host country.
[55] See also Keles v Germany, judgment of 27 October 2005, para.57
[56] Citing Sen v Netherlands, op.cit., and Tuquaba-Tekle & Others v Netherlands, judgment of 1 December 2005
[57] E.g., Maaouia v France (2000) 33 EHRR 42
[58] Citing inter alia Shebashov v Latvia, judgment of 9 November 2000
[59] Cf. Protocol No.12 to the Convention which was opened for signature in November 2000 and entered into force following ratification by 10 Contracting States on the 1st April 2005. To date this Protocol has not been ratified by Ireland. However, the State has ratified the International Covenant on Civil and Political Rights, Article 26 of which is a free-standing provision which prohibits discrimination and guarantees equality before the law (see below).
[60] See R(Montana) v Secretary of State for the Home Department [2001] 1 WLR 552, in which the refusal to register as a British citizen the natural child of a British father was not a violation of Article 14 together with Article 8 inter alia because the right to nationality was not within the ambit of the Convention. For a critical analysis of this case, see Simor & Emmerson, Human Rights Practice (Looseleaf, release 11, January 2006), para 14.035
[61] See the recent summary of principles by the ECtHR in Stec v UK (2005) 41 EHRR 295 paras 38-40; also M v Secretary of State for Work and Pensions [2006] UKHL 11, [2006] 2 AC 91; and joined cases R(Clift and Hindawi) v Secretary of State for the Home Department [2006] UKHL 54
[62] The prohibited grounds set out in Article 14 are illustrative, not exhaustive. In R(T) v Secretary of State for Health [2002] EWHC 1887, (2002) Times, 5 September, the status of ‘asylum seeker’ was held to be a status within the meaning of Article 14.
[63] In addition to the cases cited above, see Wandsworth LBC v Michalak [2003] 1 WLR 617, para 20.
[64] This may explain in part the paucity of non-discrimination jurisprudence in relation to immigration cases.
[65] Abdulaziz, Cabales and Balkandali v UK (1985) 7 EHRR 471
[66] See Belgian Linguistics Case (No.2) (1968) 1 EHHR 252 where ’the result’ of ’the legal provisions complained of’ constituted a breach of Article 14 when read in conjunction with Article 2 of Protocol 1; at para 42. See also the admissibility decision in Singh (Pavittar) v UK, No.60148/00, Decision of 3 September 2002 (Disproportionate impact of foreign adoption rules on persons from the Indian sub-continent).
[67] Moustaquim v Belgium (1991) 13 EHRR 802 para 49; X v Netherlands (1985) 8 EHRR 308. The Court has however found breaches of Article 14 in the different treatment of nationals and non-nationals in relation to social benefits, Gaygusuz v Austria ECtHR 31 August 1996 at para 52; Koua Poirrez v France, ECtHR 30 September 2003 at paras 49-50.
[68] Abdulaziz and Moustaquim cases, op.cit.;
[69] Para 88
[70] Human Rights Practice (Looseleaf, release 11, January 2006), para 14.035
[71] Applicability of Article VI, Section 22, of the Convention on the Privileges and
Immunities of the United Nations, advisory opinion 1989 ICJ 177, 210 (separate opinion of J. Evensen).
[72] Universal Declaration of Human Rights, Articles 16(3) and 12, adopted 10 December 1948, G.A. Res. 217A, U.N.GAOR, 3d Sess., pt. 1, Resolutions, U.N. Doc. A/810 (1948)
[73] See for one example in the context of immigration law and family rights, Beharry v. Reno, 183 F. Supp. 2d 584, 596.
[74] Ratified by Ireland on the 8th December 1989
[75] In addition to its General Comments which elaborate on the meaning of ICCPR provisions, the Human Rights Committee considers individual communications to it under its first Optional Protocol (see below). Ireland similarly ratified this Protocol on the 8th December 1989.
[76] See Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live, G.A. Res. 40/144, annex, 40 U.N. GAOR Supp. (No. 53) at 252, U.N. Doc. A/40/53 (1985).
[77] The position of aliens under the Covenant, the Human Rights Committee, Twenty Seventh Session, 1986. The provisions of international human rights conventions invariably apply to all persons within the jurisdiction of a State Party.
[78] The deportation of a person from a country where close members of his family are living constitutes an interference with that individual’s right to his or her family life. See Shirin Aumeeruddy-Cziffra v. Mauritius, Communication No. 35/1978, Human Rights Committee, 9 April 1981, at 9.2 (b) 2 (i) 2.
[79] Thus the Oppenheim treatise states: “discretion ... to expel aliens ... is not absolute. Thus, by customary international law t[the state] must not abuse its rights by acting arbitrarily in taking its decision to expel an alien, and it must act reasonably in the manner in which it effects an expulsion.” Sir A. Jennings & Sir A. Watts, 1 Oppenheim’s International Law 940 (9th ed.1992). In Europe see now Protocol No.7 to the European Convention on Human Rights; also ICCPR, Articles 9 and 13.
[80] See Maria v. McElroy, 68 F. Supp. 2d 206, 234 (E.D.N.Y. 1999)
[81] As the Human Rights Committee stressed, “the introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant [the ICCPR].” General Comment 16, Human Rights Committee, thirty-second session, IHRR Vol. 1 No. 2, 1994.
[82] See Hopu and Bessert v. France, Communication No. 549/1990, U.N. Doc. CCPR/C/60/D/549/1993/Rev. 1 (1997); Canepa v. Canada, Communication No. 558/1993, U.N.Doc. CCPR/C/59/D/558/1993 (1997); Stewart v. Canada, Communication No. 538/1993, U.N. Doc. CCPR/C/79/Add.105 (1996); Aumeeruddy-Cziffra et al v. Mauritius, Communication No. 35/1978, U.N. Doc. CCPR/C/12/D/35/1978 (1981) (described in text); Winata v. Australia, Communication No. 930/2000, U.N. Doc. CCPR/C/72/D/930/2000 (2001); see also Australian Human Rights Commission, Deportation and the Family: A Report on the Complaints of Mrs. M. Roth and Mr. C.J. Booker (Report No. 8) (1984).
[83] Human Rights Committee, General Comment No. 15 (1986), U.N. Doc. HRI/GEN/1/Rev.5 (2001), at 129. In both Hammel v. Madagascar, Communication No. 155/83 (1987), U.N. Doc. Supp. No. 40 (A/42/40) at 130 (1987), and Giry v. Dominican Republic, Communication No. 193/85 (1990), U.N. Doc. Supp. No. 40 (A/45/40) at 38 (1990), the Human Rights Committee held that the Covenant had been violated because the aliens were not afforded an opportunity to submit the reasons against their expulsion.
[84] Communication No. 930/2000, U.N. Doc. CCPR/C/72/D/930/2000 (2001)
[85] UN Doc. CCPR/C/81/D/1011/2001 (26 August 2004)
[86] See Foin v France, 3 November 1999, 55th Session of the Human Rights Committee, Suppl. No. 40 (A/55/40), at para. 10.3, and Gueye v France, 3 April 1989, 35th Session of the Human Rights Committee, Suppl. No. 40 (A/44/40), at para. 9.4 where the “new nationality” reference related to Senegal acquiring independence from France, the soldiers in question having served in the French army.
[87] Convention on the Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp.No. 49, U.N. Doc. A/Res/44/25 (1989), reprinted, 28 I.L.M. 1448. 192 countries have ratified the treaty, the exceptions being the USA and Somalia, rendering the Convention the most widely ratified convention in the history of the United Nations. [The principle made its first appearance in international law in the Convention Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants, 5 October 1961, 658 U.N.T.S. 143.] 2ndary law: 1959 Declaration on the Rights of the Child (Principle 7)
[88] General Comment No. 5 (2003) General measures of implementation of the Convention on
the Rights of the Child (arts. 4, 42 and 44, para. 6) and General Comment No. 7 (2005)
Implementing child rights in early childhood. See also Implementation Handbook for the Convention on the Rights of the Child (the United Nations Children's Fund (UNICEF) (revised 2002), p 42, The CRC recognises the special competence of UNICEF and other United Nations organs 'to provide expert advice on the implementation of the CRC in areas falling within the scope of their respective mandates' (Article 45).
[89]Beharry v. Reno, 158 F. Supp. 2d 584 (E.D.N.Y. 2002); see also Starr & Brilmayer, Family Separation as a Violation of International Law, 21 BERKELEY J. INT’L L. 213, 216-17 (2003)
[90] See the Human Rights Committee General Comment No. 18: Non-discrimination (1989) on the elaboration of the non-discrimination and equality provisions in the ICCPR and its General Comment No. 17: Rights of the child (Art. 24) (1989). The relevant ICCPR provisions contain similar definitions to the prohibition against discrimination found in Article 2(1) CRC; see generally UNICEF’s Implementation Handbook; pp 21-22.
.
[91] Article 8(2).
[92] Article 18(2) requires States to “..render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities..”; General Comment No. 7.
[93] (1995) 183 CLR 273 para 30.
[94] See Todres, Emerging Limitations on the Rights of the Child: The U.N. Convention on the Rights of the Child and Its Early Case Law (1998) 30 COLUM. HUMAN RIGHTS L.REV. 159, 172 n.59
[95] Beharry, 158 F. Supp. 2d at 605; Mojica, 970 F. Supp. at 182.
[96] [1999] 2 S.C.R. 817.
[97] At para 71
[98] At para 70
[99] Para 73. See now in relation to the implementation of the CRC in Canada and particularly the requirement that the best interests of the child be taken into account in all immigration decisions affecting his or her family life the Final Report of the Standing Senate Committee on Human Rights (April 2007), Chapter 11, Section G.
[100] Para 75. In R. v. Sharpe [2001] 1 S.C.R. 45, the Supreme Court noted Canada’s commitment to protecting children, as demonstrated by its ratification of the Convention on the Rights of the Child, the Convention’s nearly universal membership, and other measures designed to protect children’s rights in Canadian law; in D.B.S. v. S.R.G. [2005] ABCA 2, the Alberta Court of Appeal ruled that the Federal Child Support Guidelines must be made consistent with the Convention; in Quebec (Minister of Justice) v. Canada (Minister of Justice) (2003) 228 D.L.R. (4th) 63, the Quebec Court of Appeal stated that the Convention could be used as an interpretive tool; in U.C. v. Alberta (Director of Welfare) (2003) 223 D.L.R. (4th) 662, the Alberta Court of Appeal relied on the Convention to give weight to the best interests of the child and to give due weight to the informed opinion of a child; in L.D. c. A.P., [2000] J.Q. No. 5221 the Quebec Court of Appeal held that although the Convention has not been incorporated into domestic law, the court may still use the values expressed in it to interpret the law. Finally, in Canadian Foundation for Children, Youth, and the Law v. Canada (A.G.) [2004 1 S.C.R 76, although the Supreme Court ultimately upheld section 43 of the Criminal Code, exempting the use of reasonable force by way of correction from criminal sanctions, the Court relied on the Convention to determine the meaning and scope of “best interests of the child.”
[101] [1995] 128 A.L.R. 353.
[102] O’Keeffe v. An Bord Pleanala [1993] 1 IR 39.
[103] Unreported, High Court, January 16, 2003.
[104] Cited with approval and applied by Gilligan J in Byrne v Judge O’Leary & Others [2006] IEHC 412 (7 December 2006)
[105] [1960] IR 93.
[106] [1982] IR 337.
[107] [1992] 2 IR 257.
[108] [1992] 1 IR 39 at 72 per Finlay CJ.
[109] [2003] 1 IR 1.
[110] See, e.g., the comments of McGuinness J. (at 126-127); Geoghegan J. (at 166)(semble) and Fennelly J. (at 202-203).
[111] Opinion of 10 May 2001, considered by this Court in its judgment following the Reference delivered by Fennelly J on the 9th May 2002.
[112] At paragraph 53.
[113] [2003] 1 IR 1.
[114] [2003] 1 IR 1 at 157-160.
[115] Case C-200/02
[116] Paragraphs 9 and 10 of the judgment of the Court.
[117] Paragraph 11 of the judgment.
[118] At paragraphs 45 and 46 of the judgment.
[119] See [2003] 1 IR 1 at 11, per Keane CJ.
[120] It is true that Catherine Chen was slightly older (at four years) at the date of the judgment of the Court of Justice as compared with the children in L & O who were aged approximately one and a half years. But this simply reflects the longer period it took to enable the case to come before the Court of Justice.
................
................
In order to avoid copyright disputes, this page is only a partial summary.
To fulfill the demand for quickly locating and searching documents.
It is intelligent file search solution for home and business.
Related download
Related searches
- supreme court marriage equality 2015
- new york supreme court reporters
- marriage equality supreme court cases
- arizona supreme court sentencing chart
- supreme court definition of marriage
- supreme court marriage law
- supreme court of new york
- supreme court marriage decision
- majority opinion supreme court examples
- supreme court dissenting opinion
- who are the 9 supreme court justices
- recent u s supreme court decisions