The Department of Justice had a "siege mentality" about asylum-seekers and persisted in seeing them as a problem, the High Court was told yesterday.
Mr Bill Shipsey SC said it was extraordinary that the State's idea of vindicating the constitutional rights to live in Ireland of children born here to non-nationals was to insist the parents take the children out of the country with them on deportation and the children could come back when they could look after themselves.
He was making closing submissions on behalf of a Czech family and a Nigerian man. Both applicants have an Irish-born child - boys who were born here last year - and are seeking to quash orders for the deportation of the Czech parents, their three non-national children and the Nigerian man.
The case concluded yesterday, and Mr Justice Smyth reserved judgment to April 8th. The decision will have major implications for many other cases.
Mr Shipsey said there had been references in the case by State counsel to the number of asylum cases before the courts and the increase in the number of applicants for asylum. "I have to say: 'So what?' ", he said.
The repeated references to a "problem" indicated a disturbing mindset and was not relevant to the issue in this case, which was the constiututional rights of Irish citizens. Those rights should not be characterised as "a problem", but this was indicative of a siege mentality within the Department of Justice about what they perceived as a problem.
On objection by Mr Patrick McCarthy SC, for the State, Mr Shipsey added that he was not alleging that the Department or counsel for the State were racist.
What the State was doing was trying to row back on an important Supreme Court decision in 1990, in the Fajujonu case, which provided that there had to be grave and substantial reasons for breaking up a mixed family of non-nationals and Irish citizens, he said.
Because the Fajujonu family had been in the State for eight years and had three Irish-born children, the State seemed to be saying their situation was different from cases where non-nationals with Irish-born children who were here only a short time or had only one Irish child. The State appeared to be saying the Fajujonu family was different because they were here an appreciable time and had integrated.
Non-nationals could only fulfil such criteria if they went "underground" and did not apply for asylum on arrival here, counsel said.
These cases were not asylum matters but involved fundamental human and constitutional rights of Irish citizens. It was clear the State did not regard these Irish-born children as having constitutionally protected rights which were vastly superior to the limited rights of their non-national parents and siblings.
The State could not argue that the proposed deportations were necessary to comply with the Dublin Convention. The Minister had a discretion, and it was not a proportionate response to override the rights of Irish citizens in order to implement the Convention.
Earlier Mr Hugh Mohan SC, for the State, said the facts of the Fajujonu case were very different from the present cases. It involved a Nigerian and Moroccan couple who married in England in 1981, then moved here and had three Irish-born children. The family unit had been in Ireland for its effective life, and the degree of integration was the bedrock of the case. The Supreme Court in the Fajujonu decision had effectively said the family were more Irish than Nigerian or Moroccan.
In the present cases, the applicants were not in Ireland an "appreciable time".
Mr Mohan also argued that the State was required to adhere to the terms of the Dublin Convention, under which applications for asylum should be dealt with in the first country of arrival. The applicants in this case had applied for, and been refused, asylum in the UK.
