Bortha (A Minor) -v- The Minister for Justice and Equality, [2018] IEHC 152 (2018)

Docket Number:2017 511 JR
Party Name:Bortha (A Minor), The Minister for Justice and Equality
 
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THE HIGH COURT

JUDICIAL REVIEW[2017 No. 511 JR]

BETWEEN

ADRIANA BORTA

(A MINOR SUING THROUGH HER MOTHER AND NEXT FRIEND NADEJDA BORTA)APPLICANTAND

THE MINISTER FOR JUSTICE AND EQUALITYRESPONDENT

Ex tempore

JUDGMENT of Mr Justice David Keane delivered on 23 March 2018

Preliminary

  1. This judgment is given ex tempore in accordance with the principles summarised by Humphreys J in Walsh v Walsh (No. 1) (Unreported, High Court, 2 February, 2017), [2017] IEHC 181 and, in particular, subject to the safeguard described by Munby LJ in In re A. and L. (Children) [2011] EWCA Civ. 1611 (at para. 47) and noted by Humphreys J (at paras. 15-16) whereby the parties will have the ability and, indeed, the duty to seek further elaboration or explanation from the court if they feel that something is missing.

    Introduction

  2. The applicant (‘Ms Borta’) seeks an order of certiorari quashing the decision of the respondent (‘the Minister’), dated 16 May 2017, refusing to grant her a certificate of naturalisation under s. 16 of the Irish Nationality and Citizenship Act 1956, as amended (‘the Act of 1956’), because, while the Minister acknowledges that Ms Borta is a person with ‘Irish associations’, as that term is defined under s. 16(2) of the Act of 1956, the Minister does not consider those associations sufficiently strong to warrant the exercise in Ms Borta’s favour of the Minister’s absolute discretion to grant a certificate of naturalisation.

  3. Ms Borta was given leave to seek certiorari of the said decision by Order of O’Regan J made on 26 June 2017.

    Background

  4. These are the relevant facts. Ms Borta’s mother avers that she is a citizen of both Romania and Moldova who came to Ireland in 2007. Ms Borta was born in Moldova on 20 May 2003. Her father is not a citizen of Ireland. She was cared for by her grandmother from the age of two years until she was eight years old. Ms Borta’s mother did not obtain permission to reside in Ireland until she obtained a Romanian passport on 23 December 2011. On 27 June 2012, Ms Borta obtained a Romanian passport of her own and her mother brought her to Ireland immediately afterwards. Ms Borta was then nine years old.

  5. Ms Borta has a sister who was born in the State on 6 October 2014 and who is a citizen of Ireland, presumably on the basis of her mother’s residence on the island of Ireland for a period of not less than three years in the four years immediately preceding her birth, thus bringing her within the scope of s. 6A of the Act of 1956, whereby citizenship by birth in the island of Ireland remains available to persons born to non-nationals in such circumstances.

  6. Through her mother, Ms Borta applied for a certificate of naturalisation on 24 January 2017. She did so based on her Irish associations under s. 16 of the Act of 1956. In the box on the application form marked ‘particulars of Irish descent or Irish associations’, Ms Borta’s mother entered:

    ‘Camelia Borta – 06/10/2014 Ireland, sister of [Ms Borta]’7. The Irish Naturalisation and Immigration Service (‘the INIS’) wrote to Ms Borta’s mother on 16 May 2017, stating that the Minister had decided not to grant Ms Borta a certificate of naturalisation. The letter encloses a submission that was prepared for the Minister on the application and recites that the Minister’s decision is ‘annotated thereon.’ It isn’t. There is no annotation on the copy of the submission exhibited on behalf of the applicant and the copy of that correspondence exhibited on behalf of...

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