A Brazilian couple and their five children have lost their legal bid to prevent their deportation from the State.

The man came here lawfully in 2002 on a work permit and remained after it expired. He was joined by his wife in 2003 and later by the couple’s children who were brought into the State by an uncle.

The man worked and paid taxes from 2002. In 2007, his illegal status was discovered when stopped at a routine Garda checkpoint. He continued to work until 2009 when he became unemployed.

Neither he nor any member of the family sought asylum status but they sought leave to remain. After that application was refused, deportation orders were made by the Minister for Justice for the entire family.

On Thursday, the three-judge Court of Appeal dismissed their appeal against the High Court’s rejection of their challenge to those deportation orders.

Article 40.3

The central issue in the appeal concerned the rights of the children. It was argued they had a right under Article 40.3 of the Constitution to a private life within the State, including to remain in the State and establish a life in the community.

Giving the appeal court’s judgment, Ms Justice Mary Finlay Geoghegan said children who are not Irish citizens do not have a constitutionally protected right to live in the State or to participate in community life within the State.

The judge rejected further arguments that, when considering whether to deport a child, the best interests of a child must be the Minister’s primary consideration.

While the applicants relied on the United Nations Convention on the Rights of the Child as to the proper interpretation of the relevant provisions of the Immigration Act 1999 concerning deportation, the Convention, although ratified by Ireland, has not been implemented by an Act of the Oireachtas and does not form part of Irish domestic law, she said.

The relevant provision of the 1999 Act, Article 3.6, cannot be construed as requiring the best interests of the child be a “primary consideration” in determining whether or not to make a deportation order, the judge ruled.

While the 1999 Act required the Minister to have regard to factors including a person’s age, family circumstances and connection with the State, and certain of those related to the welfare of a child, it was not permissible to construe Article 3.6 as requiring the Minister to consider the child’s best interests as “a primary consideration”.

Reasonable

The Minister’s decision that the deportation did not sufficiently interfere with the right to private life of the applicants to engage the operation of Article 8 of the European Convention on Human Rights, concerning the right to private and family life, was reasonable, she also ruled.

The judge added she did not consider that a recent Supreme Court judgment required the appeal court to reconsider certain issues in this case as the appeal court’s judgment was not inconsistent with the relevant Supreme Court decision.

In that decision, the Supreme Court, while upholding deportation orders made for a Nigerian mother and her eight-year-old Irish-born child, suggested the Minister show “humanity” in considering their position.