By Ann O'Loughlin
An Irish born child with a severe form of sickle cell disease, a blood disorder, will have his appeal against deportation to Nigeria heard this month by the Supreme Court.
The appeal, granted priority because of the child's severe condition, raises significant legal issues concerning whether public authorities with discretionary powers must publish any policy or criteria for the exercise of such powers.
That issue goes "far beyond this case", the Supreme Court said.
The eight-year-old boy's lawyers dispute a High Court finding they had not established a substantial case and say the Minister must specify the criteria for making and revoking deportation orders so as to ensure such discretionary powers are exercised transparently.
The State, they allege, has operated an informal, effectively "secret", process aimed at giving permission to remain to large numbers of undocumented migrants here for more than five years.
The Supreme Court also said the child is entitled to appeal the High Court finding he had not raised substantial grounds that the severity of his condition and requirement for treatment not available in Nigeria made it unlawful to deport him.
Lawyers for the boy, born here to Nigerian parents, had presented "credible evidence", if deported, there will be "significant adverse consequences" to his health, it said.
The "exceptional" circumstances, general public importance of the issues raised and interests of justice entitle the child to bring an appeal, it held.
The appeal, to be heard on January 22, is against a High Court decision dismissing the boy's application for judicial review of the refusal to revoke the deportation order. A number of similar cases are also awaiting the outcome.
The boy was born here two months after his mother came here in 2009 and a deportation order was made in 2011.
The mother initiated the first of three legal challenges to the proposed deportation and to subsequent refusals of the Minister to revoke it.
In the third case, it was argued the State has put in place an undeclared and informal process aimed at giving permission to remain to large numbers of undocumented migrants here for more than five years.
In his 2016 judgment rejecting the arguments, the Minister was required to specify the criteria for making or revoking deportation orders, Mr Justice Richard Humphreys said that would result in attempts to "game the system".
If a rigid time limit was put forward as a threshold for allowing someone remain in the State, that would result in "undesirable conduct" such as creating an incentive to delay matters by legal proceedings or otherwise, he said.
He also said a recommendation of a Working Group on the Protection Process concerning regularisation of undocumented migrants had conditions attached, including that a person seeking permission to remain had not been evading the authorities. The mother in this case had evaded the immigration authorities after the deportation order was made, he said.
The Supreme Court, in its determination permitting the child to appeal the High Court decision, noted the UK Supreme Court, had ruled in the 2012 Lumba case judgment that compliance with the rule of law requires the executive, when exercising broad statutory powers, to identify any policy adopted so as to ensure the relevant powers are exercised transparently.
The Irish courts have not considered whether the same or similar principles apply here and it is arguable principles similar to those identified in Lumba may apply here, it said.
Noting evidence on behalf of the child suggested a risk he would suffer particularly significant consequences if deported, it was also in the interests of justice an appeal be permitted on the medical grounds, it said.