The court in their interpretation of Article 41 and 42 have laid a strong emphasis on the need to protect family autonomy and the associated desideratum of keeping children, so far as possible, with their parents. 9 In case North Western Health Board v NW1510, The parents of a new-born infant declined to accept the health board's offer of the PKU test to screen for the presence of certain metabolic and endocrine conditions which might cause severe learning difficulties, intercranial bleeding and eye damage. The risk of one of these conditions developing was small.
The test involved extracting drops of blood from the infant's heel, having punctured the skin with a lancet. The parents declined and the health board sought an injunction compelling them to have the test done on their son. In the High Court McCracken J refused to grant an injunction. The degree of deference of parental autonomy afforded by the majority is strikingly wide. The uncertainty of the constitution leaves the uncertainty to the practice. It is extremely unresolved in relation to the cases of non-national with an Irish-born child what to live in Ireland.
Under articles 2 and 3, anyone born on the island of Ireland is entitled to Irish citizenship. 11 But the status of non-nationals who stay in Ireland with their Irish-born children is uncertain. In 2004,the citizenship referendum was passed, It polished the entitlement to citizenship of children born in Ireland in the future whose parents are not, and are not entitled to be, Irish citizens, unless otherwise provided for by law. Since several of the key rights as described in the constitution is attached to the citizens or a citizen, the children are exposed to the risk of a reduction of their constitutional rights.
12 Before the referendum although the status of non-nationals who stay in Ireland with their Irish-born children is uncertain, most of their application to stay can be accepted according to the constitution. In the 1990 case, Fajujono v. Minister for Justice13, the Supreme Court ruled that it is practically impossible to deport the non-national parents of Irish-born children on the basis that this would infringe the guarantees contained in Article 41 of the Constitution concerning family unity. The court held that
When an alien has resided for an appreciable time in Ireland and has become a member of a family in Ireland containing children who are citizens, those children have a constitutional right to the company, care, and parentage of their parents within Ireland; and The government can force such a family to leave Ireland only, after due and proper consideration, it is satisfied that the interest of the common good and protection of the state and society are so predominate and overwhelming as to justify such an interference with the rights of the family under the Constitution.
14 The case involved a married couple that had lived illegally in Ireland for 8 years and had given birth to a daughter who was a citizen. As a result of this case, the Irish government adopted a policy whereby non-national parents of Irish citizen children were not deported from the country. After the referendum, the baby born in Ireland whose parents are not Irish can be denied citizenship; since the extent to which the constitutional rights can be applied to non-citizens still not clear, it can make matters worse.
If those rights cannot entitle to the babies, they might take the risk of deportation. This will weaken the rights and entitlements of the children at a constitutional level. It just place some children on an discrimination class, encourages the racist behaviour. The European Convention on Human Rights Article 1 of the ECHR provides that the States parties thereto "shall secure to everyone within their jurisdiction the rights and freedoms" defined therein. As a party of European Convention on Human Rights, Ireland had already incorporated it into Irish law.
It is open for anyone – citizen or non-citizen – to go to the Irish courts or, if there is no adequate domestic remedy, to the European Court of Human Rights, to vindicate his or her ECHR rights. The European Court ruling that a Chinese woman whose baby was born in Belfast should be allowed reside legally in the UK was a proof support of the non-citizens to vindicate their rights. 15 Conclusion: Including European Convention, Several of the great global Conventions and Covenants make no distinction based on citizenship.
To some degree, it is a global trend to make no deference on human rights protection between citizens and non-citizens. Although the denial of citizenship to children does not necessarily constitute a breach of the convention since a country is always free to discharge its international obligations without resorting to its constitutional framework, the legitimising negative attitudes towards foreigners will damage the common humanity and equal dignity.
The present constitutional protection of non-citizens is far from certain. It is recommended that the Constitution be amended to explicitly guarantee the fundamental protection of non-citizens in the context of Irish immigration and asylum policy The non-citizens who legally resident in Ireland is a party of the society, as long as they contribute to the Irish economy and the diversity of the culture, they should be protected by the Irish law. The Irish constitution should give a clear expression to protect them.