Solicitor slams 'uncertainty in system' as child (9) dies while fighting deportation order on medical grounds
The death has occurred of a nine year old Irish born boy with a severe form of sickle cell disease who earlier this year lost an appeal over deportation orders made for him and his Nigerian mother.
The child's mother had opposed deportation for reasons including her concerns about his health. He was treated since he was four weeks old for sickle cell disease, a blood disorder, and she resorted to prostitution for a time to fund his medication.
The Supreme Court last March dismissed their appeal over deportation but signalled a fresh application to revoke could be brought and also stressed the Minister for Justice could decline to deport on humanitarian grounds.
While the fresh application to revoke was being prepared, the child became very ill last weekend and was taken to hospital where he died last Monday.
Brian Burns, solicitor for the mother and child, said today the boy had had an "extremely painful life".
"It's very sad this boy and his mother had to endure so many years of uncertainty in the system," he added
While refusing their appeal last March, the Supreme Court said a fresh application to revoke could be made to the Minister 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.
That late 2016 ECtHR Grand Chamber decision (Paposhvilli) 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.
Even if the Minister considered he was not obliged under the Constitution or the ECHR to permit the child remain, he can permit the child remain on "general humanitarian grounds", the court said.
"There is a difference between what a decision maker must do, and what such a person may do," Mr Justice O'Donnell said. "Humanitarian considerations are not the sole preserve of the courts, national or supranational."
In their proceedings, the 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, the child had received healthcare funded by the State.
Through his mother, he 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.
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.
The Chief Justice, Mr Justice Frank Clarke, said, because the Minister's refusal to revoke and the High Court refusal of judicial review both predated the 2016 Paposhvilli decision, it would be "wholly unrealistic and procedurally incorrect" for the Supreme Court to "reinvent" the case based on Paposhvilli.
While the appeal must be dismissed, the Minister, if sufficient evidence was put before him now based on Paposhvilli criteria, might be obliged to come to a different conclusion, he said. The Minister also retained an important discretion to grant leave to remain on general humanitarian grounds.
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, the court also concluded.
Mr Justice O'Donnell said Article 3 does not require countries with better healthcare systems to permit entry to, or refuse to deport, persons with certain medical conditions.
