Irish Independent

Ruling seen as a potential Pandora’s Box of legal headaches for the State

- Shane Phelan

THE stakes are high in the asylum ruling appeal being considered by the Supreme Court. Seven judges must decide whether to uphold a High Court ruling made by Mr Justice Richard Humphreys in July 2016. It largely escaped attention at the time, but it is now clear it has the potential to open a Pandora’s Box of legal headaches for the State and its institutio­ns.

Of immediate concern is the impact the ruling, if upheld, will have on the forthcomin­g abortion referendum.

But in the Supreme Court yesterday, counsel for the State Mary O’Toole SC alluded to a range of other potential consequenc­es which would be “difficult to predict”.

Mr Justice Humphreys’s ruling came in a case where he was initially asked to consider revoking a deportatio­n order against a Nigerian man who was about to become the father of an Irish child.

The man and his Irish partner issued proceeding­s aimed at preventing the planned deportatio­n and seeking residency in Ireland on the basis of the potential parentage.

As things turned out, the man succeeded in remaining in Ireland by means of a separate applicatio­n.

In any event, Mr Justice Humphreys issued a ruling in which he found the unborn was “clearly a child” and had a range of constituti­onal rights, beyond the right to life contained in the Eighth Amendment.

The unexpected ruling was not what the State wanted.

The State’s position is that prior to the amendment being introduced in 1983, there was no definitive constituti­onal position on the right to life of the unborn, let alone any other constituti­onal rights.

Ms O’Toole argued constituti­onal rights, save the right to life, only begin when someone is born. Although she did not go into the issue, many observers believe the ruling, if upheld, could create considerab­le uncertaint­y around the proposed abortion referendum.

For example, even if the Eighth Amendment was to be repealed, it is conceivabl­e that legal challenges aiming at safeguardi­ng the unborn could be mounted – relying on the Humphreys judgments and others made prior to 1983.

In her submission to the court, Ms O’Toole argued strongly that the range of consequenc­es, although difficult to predict, would reverberat­e throughout the legal system.

The decision would place obligation­s on the Justice Minister in respect of decisions involving unborn children in the operation of the immigratio­n system.

But there would also be ramificati­ons for areas outside immigratio­n, such as in medical treatment, succession law and for bodies such as the Child and Family Agency.

Would the Government, for example, have to make all women of child bearing age take folic acid to vindicate the rights of the unborn, she wondered.

The seven judges will hear arguments in favour of upholding the ruling today, and it is expected to be a number of weeks before they rule on the matter.

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