State will face ‘banished-babies’ litigation,’ expert predicts

IRISH-BORN children deported with their parents will return and sue the State for breaches of their constitutional rights, a legal expert predicted yesterday.

Donncha O’Connell of the University of Galway said Irish courts were likely to see the phenomenon of “banished-babies’ litigation” in the near future.

These children, Irish citizens under the Constitution by virtue of being born here, are set to be deported in their hundreds, if not thousands, together with their parents.

The Department of Justice made the decision after the Supreme Court ruled in January that such parents did not have an automatic right to residency. The court added that each case had to be assessed individually.

“It wouldn’t surprise me if, in the future, the State was pursued in its own courts by ‘banished babies litigation’,” said Mr O’Connell. “The Irish citizen children who will be constructively deported with their parents may well return at a future date to sue the State for various breaches of their constitutional rights in the jurisdictions to which they were deported.

“This is not fanciful speculation. It is highly probable.”

The Department of Justice has written to 700 applicants who claimed residency by virtue of their Irish-born children since January’s court ruling informing them that they were due to be deported. They were given 15 days to make a submission for an application for leave to remain.

The Department has now begun writing to the remaining 10,300 applicants who claimed residency before the Supreme Court judgement.

Mr O’Connell, a lecturer in law, said the process was patently unfair.

“Many of the people affected were encouraged by the State to drop their asylum applications on the basis that they would have a right to remain in Ireland due to the citizenship of their children.

“Now that the goalposts have shifted they are being treated like dropouts from the asylum process in disregardof their legitimate expectation ofremaining,” said Mr O’Connell.Some legal experts also predicted that applicants due to be deported will challenge the basis upon which officials decide to deport them.

“According to the Supreme Court decision, cases have to be judged individually,” said Ivana Bacik, Professor of Law at Trinity College Dublin.

“People could challenge the decision to deport, where the minister hasn’t published the criteria, the reason for making the decision.”

A barrister who works in the area yesterday said challenges could be taken but said it was unlikely they’d succeed, given the disposition of the courts.

Another barrister, with expertise on the constitution, said the Supreme Court’s ruling was final.

“A case could be taken the European Court of Human Rights, but I would have thought that the Supreme Court would have been conscious of both EU law and ECHR law,” said Eugene Regan.

Meanwhile, the Immigration Control Platform called for a change to Article 2 of the Constitution revoking the citizenship of these children.