The Rights of the Child, Immigration and Article 8 in the Irish Courts
Siobhán Mullally and Liam Thornton, “The Rights of the Child, Immigration and Article 8 in the Irish Courts” in Uusula Kilkelly (ed.), ECHR and Irish Law (Bristol: Jordans, 2009), pp. 399-415.
31 Pages Posted: 3 Nov 2015
Date Written: October 2, 2009
The rights claims arising from immigration and the protection of family life have given rise to significant debates on the meaning and scope of the European Convention on Human Rights (ECHR) within Irish law. The protection of family and private life under the ECHR has given rise to a wealth of case law on the rights of transnational families. It should be remembered that in Austria v Italy it was stated that the ECHR "… not only applies to a States own nationals and those of other High Contracting Parties, but also to nationals of States not parties to the Convention and to stateless persons."
In recent times, the Irish courts have found themselves faced with a variety of cases on Article 8 protections for migrant families. The cases mainly concern the right of non-Irish national parents to remain in Ireland with their citizen child. A common thread within many of the cases on Article 8 issues is the focus the courts have given, not on the best interests of the child, but the good behaviour or otherwise of the parent and the state’s interest in immigration control. The Irish Courts have formulated disputes within migration law and families as surrounding the states near unqualified right to control the entry and exit of aliens versus the qualified and heavily circumscribed rights of non-Irish nationals to enjoy family life within the State with their citizen child. Where Article 8 has been utilised by the Irish courts, there has been a very expansive reading given to the needs of the State to ensure integrity of its immigration system. With the ever more increasing case load in relation to asylum and migration, the courts have noted the anxiousness of states in relation to immigration matters. In this respect, courts have been prepared to restrict the interpretation of certain rights as a means of appeasing state fears in relation to the immigration control and human rights protections.
This chapter shall firstly examine the extent to which the rights of the citizen child had been considered as central to immigration questions prior to the incorporation of the ECHR into Irish law. Suffice to say, the tenor and focus of judgments on rights of citizen children and non-national parents changed in light of increased migration into the State. Secondly, the debates within the European Court of Human Rights (ECtHR) shall be assessed, with particular focus given as to the protection of the rights of children. The ECtHR has generally focused on parental rights without adequate consideration of the rights of children to build or maintain a relationship with their parent(s). Heavily present within the rationale of the ECtHR within such cases, is not only a preference to allow a state wide ambit within immigration control, but also an examination of the behaviour of the parent, good or otherwise. In some of the cases, the good behaviour of the parent seemed to lessen the impact of a contracting states desire to maintain a stringent immigration policy. Conversely, where a parent was deemed to be behaving inappropriately within the State, mainly due to actions which resulted in criminal sanction, the ECtHR has emphasised this aspect of the person’s presence within the state as trumping the concerns of family life. In a small number of cases, past criminal behaviour of a minor nature has been ignored and close relationships with children or marital partners have been focused upon where the Court seeks to privilege family life over migration control. As shall be examined, the rights of children have only recently been explicitly examined by the ECtHR when reaching a decision on Article 8 and migratory matters. The English courts have been heavily relied on within the Irish Courts in the formulation of their approach towards Article 8 and migration issues. In this respect, the Irish courts have also failed to interpret the provisions on the family within the ECHR as requiring the best interests of the child to be at the heart of the decisions made in relation to immigrant family members. As shall be discussed below, with some exceptions, Article 8 of the Convention has not provided any increased protection in rights to families of immigrants where citizen children are present within Ireland. The general conclusion to be drawn is that the rights of citizen children within migratory matters have not had a significant impact in the development of Article 8 case law within the Irish Courts. However, recent case law from both Ireland and the ECtHR, may indicate a shift in judicial thinking wherein the rights of the child receives separate consideration from the general considerations of maintaining family life.
Keywords: Irish Studies, European Convention of Human Rights, Children's Rights, Irish Constitutional Law, Irish Law, Deportation, Convention on the Rights of the Child, European Convention on Human Rights, Immigration Detention and Deportation, European Human Rights Law With Special Attention to ECHR
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