David Stanton (Cork East, Fine Gael)
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Question 167: To ask the Minister for Justice, Equality and Law Reform, in the case of a foreign national marrying an Irish citizen and where the marriage fails, the attitude his Department takes to the permission to reside here previously granted to the foreign national; the situation where Irish born children are involved; and if he will make a statement on the matter. [11448/06]

Michael McDowell (Dublin South East, Progressive Democrats)
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A non-EEA national who is residing in Ireland on the basis of marriage to an Irish citizen, and whose marriage subsequently fails, will no longer be residing in the State in accordance with the permission granted to them by my Department. This change of circumstances will necessitate a review of their situation by my Department. If I am satisfied that there is a legitimate basis for the continued residence of the non-EEA party in the State, my Department will grant an appropriate permission.

In the event that the person in question does not have an alternative legal basis for remaining in this jurisdiction, the issue of permission to remain will be considered but only in the context of a ministerial proposal to deport the person concerned. In that circumstance, the person will be notified of the proposal and given an opportunity to make representations about it. If, after consideration of those representations and the range of factors set out in section 3(6) of the Immigration Act 1999, it is decided not to make a deportation order, the person will be given leave to remain on a humanitarian basis.

With regard to the situation where Irish born children are involved, the Deputy will be aware that the Supreme Court judgment in Lobe and Osayande, 2003, confirms that the parentage of an Irish citizen child by a non-EEA national does not infer an automatic right of residence in the State. However, the presence of Irish born children in a failed marriage situation will be considered by my Department in the context of any representations made as a result of a proposal to deport from the State.