A, B and C (A Minor Suing by his Next Friend A) v Minister for Foreign Affairs and Trade

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 02 December 2021
• Neutral Citation: [2021] IEHC 785
• Court: High Court
• Docket Number: [2020 No. 575 JR]

Between:

A, B and C (A Minor Suing by his Next Friend A)

Applicants

and

Minister for Foreign Affairs and Trade

Respondent

[2021] IEHC 785

[2020 No. 575 JR]

THE HIGH COURT

Passport – Statutory interpretation – Irish Nationality and Citizenship Act 1956 s. 7(1) – Applicants seeking an order of mandamus directing the respondent to make a decision as to whether to issue an Irish passport in respect of the third applicant – Whether the third applicant had been an Irish citizen from birth by virtue of s. 7(1) of the Irish Nationality and Citizenship Act 1956

Facts: The first and second applicants were married. The first applicant enjoyed citizenship of Ireland and also of the United Kingdom. The second applicant was a citizen of the United Kingdom. They lived, and were domiciled in, England. The third applicant, their son, was born in the United Kingdom by way of a successful, lawful surrogacy arrangement. He enjoyed citizenship of the United Kingdom only. His fathers’ desire to get him an Irish passport led to proceedings. The proceedings were heard over two days, on 23rd and 24th November. The statement of grounds indicated that the following principal reliefs were sought: (1) an order of mandamus directing the respondent, the Minister for Foreign Affairs and Trade, to make a decision as to whether to issue an Irish passport in respect of the third applicant; (2) an order of mandamus directing the Minister to issue an Irish passport in respect of the third applicant; (3) a declaration that the failure of the Minister to issue an Irish passport in respect of the third applicant constitutes a disproportionate interference with the applicants’ rights pursuant to Articles 40.1, 40.3 and 42A of the Bunreacht; (4) a declaration that the failure of the Minister to issue an Irish passport in respect of the third applicant constitutes a failure, contrary to the provisions of s. 3 of the European Convention on Human Rights Act 2003, on the part of the Minister to perform his functions in a manner compatible with the European Convention on Human Rights (ECHR) and in particular that it constitutes a disproportionate interference with the applicants’ rights pursuant to Arts 8 and 14 ECHR; (5) damages (including damages for breach of statutory duty and/or breach of constitutional duty and/or pursuant to s. 3 of the 2003 Act); and (6) the costs of the proceedings.

Held by the High Court (Barrett J) that it considered the correct reading of s. 7(1) of the Irish Nationality and Citizenship Act 1956 to be that advanced by the applicants. The court concluded that the third applicant had been an Irish citizen from birth by virtue of that section. The court granted an order of mandamus directing the Minister to make a decision as to whether to issue an Irish passport in respect of the third applicant. It did not seem to the court that it was necessary to grant an order of mandamus directing the Minister to issue an Irish passport to the third applicant for unless the Minister appealed the judgment then, pursuant to the order of mandamus that was granted, a passport would issue, and if the Minister decided to appeal the judgment, a stay would fall in any event to be granted. The court would hear the parties as to costs.

Barrett J held that there had been a clear breach of statutory duty. However, the court was mindful that neither side had made any oral or written submissions concerning damages. It seemed to the court that the most appropriate and fairest way of proceeding in that regard was to allow/request the parties at the costs hearing to make any and all submissions as they may wish to make concerning the issue of damages.

Reliefs granted.

Summary

In early-2017 an application for an Irish passport was made in respect of Master C, an English-domiciled child. Master C's parents (also domiciled in England) are, by virtue of an English parental order, Mr A (who holds dual Irish-UK citizenship) and Mr B (who holds UK citizenship). No decision has yet been made by the Minister on Master C's passport application. For the reasons set out in this judgment, the court will make an order directing the Minister to decide the passport application. A main focus in these proceedings has been the meaning and effect of s.7(1) of the Irish Nationality and Citizenship Act 1956, as amended. The court concludes that Master C has been an Irish citizen from birth by virtue of that section.

JUDGMENT of Mr Justice Max Barrett delivered on 2 ^nd December 2021 .

I

Background

1 . Mr A and Mr B are two married gentlemen. Mr A enjoys citizenship of Ireland and also of the United Kingdom. His husband, Mr B, is a citizen of the United Kingdom. They live, and are domiciled in, England. Their son, Master C, was born a short few years ago in the United Kingdom by way of a successful, lawful surrogacy arrangement. Master C presently enjoys citizenship of the United Kingdom only. It is his fathers' desire to get him an Irish passport that has led to these proceedings. The proceedings were heard over two days, on 23 ^rd and 24 ^th November. Mr A's grounding affidavit details how the parties ended up before this Court:

“ 9. Subsequent to the birth of [Master C] …a UK birth certificate was issued which recorded [the birth mother] …as the mother of [Master C]… and recorded [Mr B]… as his father.

10. In…2015 [Mr B] …and I applied to the…Family Court for a Parental Order in respect of [Master C] …pursuant to s.54 of the [United Kingdom's] Human Fertilisation and Embryology Act 2008. The said Parental Order was granted on [Stated Date]….

12. I say and believe and am advised that under UK law [there is expert evidence before the court from an English solicitor that establishes this] the effect of this Parental Order is to reassign parentage of [Master C] …from [Mr B] …and [the birth mother]… to [Mr B] …and me.

13. On foot of the said Parental Order the parental rights of [the birth mother]… were extinguished and a revised birth certificate was issued in respect of…[Master C]. Pursuant to the said revised birth certificate and as a matter of UK law, [Mr B] and I are the parents of…[Master C] ….

Passport Application

14. In early 2017 an application was made to the Department of Foreign Affairs and Trade…for an Irish passport in respect of…[Master C]. On 11 ^th April 2017 I received an email from…the Department stating that a number of similar applications had been made and that advice was awaited from the Office of the Attorney General in respect of these applications….

15. By letter dated 7 ^th July 2017…[a] Passport Officer wrote to…[Mr B] and me…indicating that the Department intended to refuse the application for a passport on the basis that for the purposes of the Irish Nationality and Citizenship Act 1956…a parent was understood to mean either the mother or father of the child or a male adopter. The same letter invited us to provide the Department [with] any further information or evidence in advance of the decision….

16. I say that we decided to respond to this letter by seeking an extension of time for the filing of further information….

17. I say that the said extension was granted and our solicitor proceeded to file a detailed legal submission on 17 ^th October 2017….

18. I say that there followed a series of letters from our solicitors to the Department seeking a formal acknowledgement of our written submission, which letters were sent on 22 ^nd November 2017, 2 ^nd February 2018 and 18 ^th April 2018….

19. I say that I personally wrote to [the Passport Officer]… by letter dated 19 ^th April 2018 stating that we had not received an acknowledgement of our submission and that we regarded the silence as disappointing….

20. I say that I personally sent an email to [the Passport Officer]… on 12 ^th June 2018 stating that I believed it to be unreasonable that we had had no response from the Department….

21. I say that by letter dated 19 ^th September 20 18 [emphasis added] the Department wrote to our solicitors acknowledging the receipt of our submission on 17 ^th October 20 17. [Emphasis added]. The letter further stated that the issues raised in our submission were noted but that the Passport Office was ‘bound by the legislation that is currently in place’….

22. By letter dated 3 ^rd December 2018 our solicitors wrote to the Department asking for an update on the passport application. By letter dated 13 ^th December 201 8 [emphasis added] the Department wrote to our solicitors indicating that clarification was still awaited.

23. I say that by letter dated 23 ^rd December 201 9 [emphasis added] our solicitors wrote to the Department calling on the Minister to make a decision and stating that the within proceedings would issue within 28 days if the decision was not made….

24. I say that no further correspondence has been received from the Department….

26. I say that…[Mr B] …and [Master C] …and I have suffered distress and inconvenience by reason of the delay. We have been caused to remain in a situation of persistent uncertainty as to the citizenship and passport status of one of our children. It is of great emotional significance to me in particular that our son should be entitled to have the same nationality as me….”.

2 . The statement of grounds indicates the following principal reliefs to be sought: (1) an order of mandamus directing the Minister to make a decision as to whether to issue an Irish passport in respect of Master C; (2) an order of mandamus directing the Minister to issue an Irish passport in respect of Master C; (3) a declaration that the failure of the Minister to issue an Irish passport in respect of Master C constitutes a disproportionate interference with the applicants' rights pursuant to Articles 40.1, 40.3 and Article 42A of the Bunreacht; (4) a declaration that the failure of the Minister to issue an Irish passport in respect of Master C constitutes a failure, contrary...