Saturday 16 December 2017

Brazilian family living in Roscommon to challenge deportation

A BRAZILIAN family of seven living in Roscommon have been given permission to legally challenge their deportation after a judge said the State must treat the interests of the children as a primary consideration in any deportation decision.

Mr Justice Colm MacEochaidh ruled Odenis Rodrigues Dos Santos, his wife Antonia Alexandre de Morais, and their five children, can bring a High Court judicial review challenge over a decision of the Minister for the Justice and Equality to order their deportation in March last year.

Mr Dos Santos came here on a one-year work permit in September 2002 and his wife and children, three of whom are under 18, joined him in

2006 and 2007.   Mr Dos Santos says he and his family have established deep roots in Ireland and his children are wholly integrated into Irish society.

Although his work permit had expired in 2003, he continued to work here and in 2008 he was informed he was to be deported by the Irish Naturalisation and Immigration Service which also said it was not aware his family had joined him.

Through his solicitor, he applied for permission to remain in Ireland.

He said gardai in Roscommon  were aware of his and his family's presence in the town and had actually been holding his passport for the previous three or four years.

His application was refused by the Minister and the family's deportation ordered.

The family then asked the High Court to stop the deportation pending the hearing of their case challenging the decision and claiming it was in breach of their constitutional rights and the right to respect for family life under the European Convention on Human Rights.

The Minister argued there was no interference with respect for family life because it was intended to deport all the family and there was no separation of them involved.

Mr Justice MacEochaidh said he had considered argument in relation to the United Nations Convention on the Rights fo the Child which although ratified by Ireland in 1992 has still not been incorporated into our laws.

There can be no doubt its non-implementation "seriously restricts and might even prevent its application in Ireland."   However, the fact that it has been ratified cannot be ignored, he said.

The judge said he observed that laws adopted after the ratification of the UN convention are to be applied and interpreted in harmony with the convention unless a contrary intention is apparent from our legislation.

No provision of the 1999 Immigration Act, under which the deportation order was made, contains a rule which is contrary to the provisions of the UN convention in relation to the best interests of the child being a primary consideration in any decision to deport, he said.

The Minister's side had conceded the best interests of the children in this case had not been the primary consideration in making the

deportation order, the judge said.   The best interests would need to

be identified in a proper enquiry and as the family had established substantial grounds on this point, he granted leave to them to pursue the matter further at a full High Court hearing.

He also granted orders restraining the deportation of the entire family pending the hearing.

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