Constitutional question over proposed asylum law

President Michael D Higgins is expected to decide today if he should refer a new asylum law to the Supreme Court amid concern aspects of it are in conflict with the Constitution’s definition of the family.

He convened his advisors on the Council of State yesterday for only the second time in his presidency, and afterwards said he would make his decision by midnight tonight.

Three aspects of the International Protection Bill, which was recently passed by the coalition through the Dáil, led to the convening of the Council of State. The council, which includes current and former office holders and members of the judiciary, was asked to consider the Bill’s constitutional validity, addressing whether new rules on family reunification for asylum seekers contravene the Constitution.

NGOs have claimed the law would restrict family reunification; in particular, a child might not be allowed to reunite with an uncle or aunt, even if the child’s parents are dead. The Bill will restrict the discretion afforded to authorities on permitting asylum family reunification, which may be contrary to Article 42A of the Constitution.

President Higgins last convened the Council of State in 2013, to consider the Protection of Life During Pregnancy Bill. Yesterday’s meeting at Áras an Uachtaráin is the 30th time a council has met since the State’s foundation.

If the president decides to send the asylum law to the Supreme Court, and it is approved, its constitutionality cannot be challenged again.

However, if Mr Higgins signs it into law, it could be challenged later.

Council of State members attending yesterday’s meeting included Taoiseach Enda Kenny, former taoisigh Brian Cowen, Bertie Ahern, and John Bruton, and former president Mary McAleese.

Following the three-hour meeting of 19 of the 25 council members, a statement was issued from Áras an Uachtaráin: “President Michael D Higgins has concluded a meeting of the Council of State in relation to the International Protection Bill 2015. The president has thanked the members of the Council of State and will take the decision on whether the Bill should be referred to the Supreme Court in the next 24 hours.”

President Higgins, in drawing on the advice of the council, can also consider submissions from the public on the matter, as well as debates around the International Protection Bill, which took place in the Seanad and the Dáil.

Cork-based NASC, one of the refugee support groups, has pointed out that the Irish language word for family — which is in the Constitution — is “teaghlach”, which translates as “household” and is a reflection of one of the framers of the original document, Eamon de Valera, who was raised by extended relatives.