Bode v Minister for Justice

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 20 December 2007
• Neutral Citation: [2007] IESC 62
• Court: Supreme Court
• Docket Number: [S.C. No. 485 of 2006],[S.C. No: 485 of 2006]
• Date: 20 December 2007

Between/

Deborah Olarantimi Bode, (a minor suing by her father and next friend Folajimi Bode), Folajimi Bode, Caroline Ola-Bode

Applicants/Respondents

and

The Minister for Justice, Equality and Law Reform

Respondent/Appellant

The Human Rights Commission and the Attorney General

Notice Parties

Murray C.J.

Denham J.

Fennelly J.

Kearns J.

Finnegan J.

[S.C. No: 485 of 2006]

THE SUPREME COURT

Abstract:

Immigration - Asylum - Constitutional law - Administrative law - Irish Born Child Scheme - Whether Minister took into account in decisions provisions Constitution or ECHR - Whether exercise of Minister's power valid exercise executive power - Whether decision of High Court premature

The issue arose as to the decisions of the respondent Minister made pursuant to the Irish Born Child Administrative scheme as to residency and whether the Minister had considered the constitutional and ECHR rights of the applicants in respect of their efforts to prove continuous residence in Ireland since the birth of their children.

Held by the Supreme Court (Denham J), allowing the appeal, that the application was misconceived and the scheme established was a fast and generous one, set up through the exercise of Executive power. At no stage was it intended within the ambit of the scheme that the Minister would consider such rights. The appeal was premature.

Reporter: E.F.

1 Judgment delivered the 20th day of December, 2007 by Denham J.

2 1. Issue

3 At issue in this case is the decision of a Minister of the Government made in an administrative scheme, established as an exercise of executive power, to deal with a unique group of foreign nationals. It is submitted, on the one hand, that, inter alia, in this scheme the Constitutional and Convention rights of applicants were required to be considered in accordance with law. On the other hand, it was submitted that neither Constitutional nor Convention rights arose to be considered. Thus the nature of the scheme is at the core of the appeal, and, with it, the nature of any judicial review. Also, at the kernel of the case is the fact that the position of a foreign national, who failed in an application under the scheme, remains the same as it was prior to the application, with all relevant Constitutional and Convention rights yet to be considered. In this, and the related judgments, the term 'foreign national' means a national other than an Irish citizen.

4 At the core of the case is the refusal by the Minister of the second named applicant's application under the IBC 05 Scheme.

5 2. Eight Cases

6 The Minister for Justice, Equality and Law Reform, the respondent/appellant, hereinafter referred to as the 'the Minister', has appealed from the judgments of the High Court (Finlay Geoghegan J.) in seven cases where the High Court quashed the decision of the Minister to refuse applications for permission to remain in the State to foreign national parents of Irish born children under a scheme which he had introduced. In the eighth case the Minister is appealing against the order for costs made in the High Court. No submissions have yet been made on this latter case.

7 3. These related cases are:

• (i) Bode v. The Minister, Appeal No. 485/2006

• (ii) Oguekwe v. The Minister, Appeal No. 489/2006

• (iii) Dimbo v. The Minister, Appeal No. 484/2006

• (iv) Fares v. The Minister, Appeal No. 483/2006

• (v) Oviawe v. The Minister, Appeal No. 480/2006

• (vi) Duman v. The Minister, Appeal No. 482/2006

• (vii) Adio v. The Minister, Appeal No. 481/2006

• (viii) Edet v. The Minister, Appeal No. 005/2007

8 The Minister was represented in all the cases by the same counsel. The same affidavit of Maura Hynes, a principal officer in the Department of Justice, Equality and Law Reform, was filed in all cases on behalf of the Minister. Similar written submissions were filed on behalf of the Minister in all cases.

9 4. The general facts and law relating to the Minister's decision in the administrative scheme in the seven cases are set out in this judgment. The particular facts, law, and decision of this case are set out herein, and the other seven cases are addressed in separate judgments and orders.

10 5. In two cases, Oquekwe v. The Minister

11 and

12 Dimbo v. The Minister , there is a second issue relating to the Minister's decisions on orders of deportation. These matters will be considered and determined in the two relevant judgments.

13 6. Minister's IBC 05 Scheme

14 The Minister made revised arrangements for the consideration of applications for permission to remain in the State, on the basis of parentage of an Irish born child born before the 1st January, 2005. This was called the Irish Born Child 05 Scheme and is referred to as the 'IBC 05 Scheme'. This scheme was separate from the Minister's function under legislation, specifically under the Immigration Act, 1999. The scheme was described by Maura Hynes in her affidavit, which explanation was in identical terms in this and the related cases. There was no cross-examination of Maura Hynes. Maura Hynes was the officer in charge of the IBC 05 Scheme unit.

15 The following is a shortened version of the facts deposed to by Maura Hynes. The State began to experience mass applications for asylum for the first time in its history in the 1990s. Under Irish law a person born in Ireland was an Irish citizen from birth. Reference was made to Fajuionu v. Minister for Justice [1990] 2 IR 151.

16 The Minister adopted a policy under which he usually granted permission to remain in the State to foreign national parents of Irish born children. Occasionally the Minister did refuse some applications, when he deemed that it was necessitated by the common good. This occurred, for example, when a foreign national parent had been convicted of a criminal offence. The Minister granted leave to remain in the State, on the basis of parentage of an Irish born child, to approximately 10,500 foreign nationals between 1996 and February, 2003.

17 The judgments in L and O. v. Minister for Justice, Equality and Law Reform [2003] 1 I.R. 1, were delivered on 23rd January, 2003, when this Court held that a foreign national parent of an Irish born child did not have an automatic entitlement to remain in the State with the child. As a result of that case the Minister reviewed his policy. The Minister decided that the separate procedures for the consideration of residency applications based solely on parentage of an Irish born child should cease with effect from the 19th February, 2003. At that date a total of 11,493 applications, which had been made on this basis, were outstanding.

18 It was expected that the number births of children of foreign nationals in Ireland would drop significantly. However, this did not happen. The Government proposed an amendment to the Constitution. This was approved by the people in a referendum in 2004.

19 The effect of the amendment to the Constitution was to exclude from automatic Irish nationality and citizenship a child born to parents neither of whom was entitled to be an Irish citizen at the time of the child's birth. There were some exceptions. Legislative effect was given to the amendment by the Irish Nationality and Citizenship Act, 2004, which came into force on 1 st January, 2005. From that date it was no longer possible for persons to bestow Irish citizenship on their children by arranging for their birth in Ireland. This law reduced the number of applications for asylum and reduced the proportion of asylum seekers who were pregnant at the time of arrival in the State. In this changing

20 situation the Minister considered the 11,000 outstanding cases which it had been decided would be considered individually.

21 Maura Hynes explained that it was decided that, rather than engaging in a case by case analysis, as a gesture of generosity and solidarity to the persons concerned, a general policy would be adopted of granting those persons permission to remain in the State, provided that they fulfilled certain criteria which were designed to reflect the factors that had given rise to the decision to adopt a generous attitude toward these persons and to protect the public interest.

22 Criteria were established in formulating the IBC 05 Scheme. The following were described. (a) Criminal activity of an applicant would always be a factor and would weigh against the granting of permission to remain in the State. (b) Persons who had been resident in the State for some time (and especially since the birth of an Irish born child), were a special category due to their connection with the State. (c) To qualify for inclusion in the scheme an applicant should have been continuously resident in the State since the birth of the child. (d) If a parent was not part of the same family unit as the child, or not taking a role in the upbringing of the child, his or her claim to remain in the State on the basis of parentage was weakened. Thus under the IBC 05 Scheme applications might be refused if it appeared that an applicant was not living as part of a family unit with the child or otherwise not taking a role in the child's upbringing.

23 Maura Hynes deposed that the purpose of the IBC 05 Scheme was to confer a benefit on persons in the identified special category. It was not established in order to be a means of family reunification. It was decided that it should be made clear to applicants that they should accept as a condition of their application, and of any grant of residency, that such a grant would not confer any legitimate expectation that any other person would be granted permission to remain in the State.

24 A two year initial permission to remain in the State was to be granted, which might be further extended at the Minister's discretion. Such a grant was subject to conditions, being: (a) that a...