A Nigerian mother and her Irish born son, who has a form of sickle cell disease, a severe blood disorder, have lost their Supreme Court appeal over being refused permission to challenge orders for their deportation.

A fresh application to revoke deportation could be made to the Minister for Justice, based on a recent European Court of Human Rights (ECtHR) decision on criteria for assessing bids to prevent deportations of people with serious medical conditions, the five-judge court noted.

That ECtHR decision maintains a high threshold for preventing deportation, based on Article 3 of the European Convention on Human Rights (ECHR), the right not to be exposed to inhuman and degrading treatment, the Chief Justice, Mr Justice Frank Clarke, and Mr Justice Donal O’Donnell stressed in concurring judgments.

Even if the Minister considered he is not obliged under the Constitution or the European Convention on Human Rights to let the child remain, he can do so on “general humanitarian” grounds, the court also said.

The boy, aged almost nine, has lived all his life here and has been treated since four weeks old for a serious medical condition, Mr Justice O’Donnell noted.

“There is a difference between what a decision maker must do, and what such a person may do,” he said. “Humanitarian considerations are not the sole preserve of the courts, national or supranational.”

Inability to pay The boy’s mother said she was fearful deportation would seriously affect her son’s health due to the quality of treatment available in Nigeria and her inability to pay for it. She said she evaded deportation for some years after a deportation order was made in 2011 and resorted to prostitution for a time to fund his medication costs. Since 2014, he has received healthcare funded by the State.

The boy, through his mother, appealed to the Supreme Court over the High Court’s finding they had not raised the necessary substantial grounds to allow them challenge a July 2016 refusal by the Minister to revoke deportation.

On Thursday, the Supreme Court ruled the Minister had not acted unlawfully in refusing to revoke and the High Court correctly held substantial grounds were not made out to challenge the refusal.

It rejected arguments the Minister was obliged to disclose guidance or criteria for an alleged “policy”, based on a report of the International Protection Working Group, of granting leave to remain to people who have been here five years and have no criminal record.

The boy’s lawyers were sufficiently aware of the alleged practice so as to be able to seek to have it applied to the child, the Chief Justice said.

Unfit and degrading He also concluded the threshold for preventing deportation on Article 3 grounds is high and the appropriate benchmark is not the level of care existing in the State which orders deportation.

Mr Justice O’Donnell said it is “a hard and unpalatable fact” many people in the world exist “in circumstances we would consider unfit for, and degrading of, human beings”. He did not consider Article 3 requires countries with better healthcare systems to permit entry to, or refuse to deport, such persons.

Lawyers for the mother and son sought to rely in the appeal on a late 2016 ECtHR Grand Chamber decision (Paposhvilli) which, the Supreme Court held, had both developed and clarified Article 3 jurisprudence concerning deportation of people with serious medical conditions.

The Chief Justice said the Minister’s refusal of revocation and the High Court refusal of judicial review both predated the Paposhvilli decision and it would therefore be “wholly unrealistic and procedurally incorrect” for the Supreme Court to “reinvent” the case based on Paposhvilli.

While the appeal must be dismissed, that did not mean the Minister might not, should sufficient evidence be put before him now based on the Paposhvilli criteria, be obliged to come to a different conclusion, he said.

It was worth noting the Minister also retained an important discretion to grant leave to remain on general humanitarian grounds.