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AAG-A and Anor v The Minister For Justice (Approved)
Factual and Procedural Background
Judge O'Regan delivered judgment on 4 March 2026 in a judicial review brought by the Appellant (a Nigerian national) and her dependent son (the second named applicant). The Appellant arrived in The State in September 2021 with three children and applied for international protection on 10 September 2021, including for the then three dependent children. Two of the Appellant's children have since attained majority and were not the subject of the challenged decision. The international protection application was refused and that refusal was upheld by IPAT. On 7 October 2022 the Appellee issued a decision (dated 6 October 2022) refusing permission to remain. The Appellant sought a review under s.49(7) of the International Protection Act 2015 by letter dated 1 August 2023. By decision of 13 August 2024 (issued 27 August 2024) the review was refused. The Appellant challenges that refusal. The matter is linked to an allied matter (OPA v The Minister for Justice) and follows the pathfinder judgment in SM v Minister for Justice [2025] IEHC 629.
Legal Issues Presented
- Whether the Appellee's decision under s.49(7) adequately considered and gave reasoned determination to the best interests of the Appellant's dependent child.
- Whether failure to reference Article 42A.1 of the Constitution (and related ECHR provisions) in the s.49(7) decision rendered that decision unlawful.
- Whether the Appellant is entitled to an order of certiorari quashing the s.49(7) decision of 13 August 2024.
Arguments of the Parties
Appellant's Arguments
- The best interest of the minor must be considered and a reasoned determination provided under the Constitution and/or the ECHR; Article 42A.1 should have been referenced.
- The s.49(7) decision refers almost exclusively to the Appellant rather than the child; only one line refers to the child's best interests and that is insufficient.
- Relies on authority in AZ & Ors. v the Minister for Justice & Equality [2024] IESC 35 and the jurisprudence cited therein to seek quashing of the impugned decision.
- Material before the decision evidenced the child's school attendance, sports involvement and integration; these facts required a specific best-interests assessment.
Appellee's Arguments
- The Appellee does not contest that the child's best interests must be considered but submits that the material and submissions before the decision-maker were limited and did not advance an argument as to where the child's best interests lay.
- Many authorities relied upon by the Appellant concern deportation orders affecting custody/access of an Irish-citizen child; they have limited application where there is no proposal to separate a family unit.
- There is no freestanding right for a non-national child to remain in The State by virtue of presence alone; the Minister's s.49(7) discretion is residual and informed by what was before him.
- Failure to cite Article 42A.1 explicitly does not, in the circumstances, render the decision unlawful.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| SM v Minister for Justice [2025] IEHC 629 | Pathfinder judgment dealing with issues arising in both matters; where asylum/subsidiary protection unsuccessful, entitlement is to make representations to Minister and have them considered. | The Court noted the parties relied on the SM judgment and treated its approach to humanitarian representations as guiding background for the review under s.49(7). |
| DE v the Minister for Justice & Equality & Ors. [2018] 3 IR 326 | Clarke CJ: humanitarian leave involves entitlement to make representations to the Minister and to have those representations considered. | Used to frame s.49(7) as a residual discretionary power analogous to consideration of humanitarian representations rather than determination of legal entitlement. |
| MK v Minister for Justice & Equality [2022] IESC 48 | Where residence is precarious the State's interest in an orderly immigration system prevails unless there is "something more" (e.g. health) to outweigh it. | Applied to indicate the weight of State interest relative to private life in s.49(7) decisions and to support the proposition that refusal can be lawful absent "something more". |
| Sivsivadze v Minister for Justice [2016] 2 IR 403; [2015] IESC 53 | Article 42A.1 places an obligation on branches of Government (including the judiciary) to protect children's rights. | Referred to for the constitutional duty to protect children's rights; the Court acknowledged the obligation but assessed its application in the specific factual context. |
| POT v CFA [2016] IEHC 101 | Article 42A poses an autonomous duty on the court to uphold the natural imprescriptible rights of the child independently of parties' positions. | Referred to as authority for a court's autonomous duty to uphold children's rights when assessing whether the decision-maker considered them. |
| AZ & Ors. v the Minister for Justice & Equality [2024] IESC 35 | Article 42A.1 obligations apply to immigration decisions; child's rights require individual consideration distinct from family membership; parliament/judicial guidance on weight to be given where deportation affects custody/access. | Central authority relied upon by Appellant; the Court distinguished AZ on facts (no deportation proposal to sundering family unit) and applied its principles to conclude explicit citation of Article 42A was not required here. |
| KRA v Minister for Justice and Equality [2019] 1 IR 567 | Limited application where there is no proposal to deport a child that might interfere with rights enjoyed in The State. | Used to support distinction between deportation cases affecting custody/access and the present case where family removal as a unit was foreseeable. |
Court's Reasoning and Analysis
The Court identified the narrow outstanding issue as whether the s.49(7) decision adequately addressed the best interest of the Appellant's dependent child. The Court emphasised the character of s.49(7) as a residual discretionary power akin to humanitarian consideration and noted relevant authorities (DE, SM, MK) on the weight to be given to State interest. The Court distinguished precedent concerning deportation decisions affecting custody/access (AZ, KRA) on the ground that in the instant case there was no proposal to separate the family or to deprive the child of care, company or access.
The review application (1 August 2023) contained limited material specific to the child and primarily reiterated the failed international protection claim. The decision under challenge expressly recorded that conclusions reached for the Appellant would apply to her dependent and recorded child-specific facts (school attendance, sports involvement). The report concluded with the explicit statement "I have considered the best interest of the children in this report."
Given the absence of submissions indicating where the child's best interests lay independently of maintaining the family unit, the Court found it lawful for the decision-maker to conclude that the child's best interests could be met by maintaining the family together and enabling enjoyment of family life in their country of origin. The Court held that omission of an explicit reference to Article 42A.1 did not render the decision unlawful in the circumstances. The Appellant had not demonstrated error in the decision-maker's stated consideration of representations and IPAT material.
Holding and Implications
RELIEFS REFUSED
Holding: The Appellant is not entitled to an order of certiorari in respect of the decision of 13 August 2024; the reliefs claimed in the statement of grounds are refused.
Implications: The s.49(7) refusal stands. The Court concluded that the decision-maker had considered the child's best interests sufficiently on the material before him and that lack of explicit reference to Article 42A.1 did not make the decision unlawful in this factual context. The Court noted that the next steps in the immigration process (including any deportation considerations) would afford the Appellant opportunity to raise the child's best interests during that process. Costs are presumptively payable to the successful party (the Appellee); parties may file submissions on costs (no more than 1,000 words) within seven days.
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