Charlotte Puong (A Minor Suing by her Mother and Next Friend Phei Wooi Chew) and Phei Wooi Chew v The Minister for Foreign Affairs and Trade
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 20 May 2021 |
| Neutral Citation | [2021] IECA 149 |
| Docket Number | Record Number: 2019/529 |
| Date | 20 May 2021 |
| Court | Court of Appeal (Ireland) |
and
[2021] IECA 149
Whelan J.
Faherty J.
Power J.
Record Number: 2019/529
2019/540
THE COURT OF APPEAL
Judicial review – Proportionality – Fair procedures – Second respondent appealing against order of certiorari – Whether the second respondent’s decision was amenable to judicial review
Facts: The applicants, Ms Chew (the Mother) and Ms Puong (the Child), appealed to the Court of Appeal against the “[i]mplicit refusal of Certiorari, Declaratory and Directive relief” by the High Court as against the first respondent, the Minister for Foreign Affairs and Trade. The second respondent, the Minister for Justice and Equality, appealed against the order of certiorari quashing her decision of 22 March 2019, remitting the matter back for further consideration and directing that the Mother and Child recover fifty percent of their costs from the second respondent. The appeals concerned the grant of a passport to the Child and its subsequent cancellation by the first respondent. Regarding the second respondent’s appeal, the following issues arose for consideration from the appeal notices and the parties’ submissions: (i) Did the second respondent’s letter of 22 March 2019 constitute a decision amenable to judicial review? (ii) If so, was it a decision made pursuant to s. 4(7) of the Immigration Act 2004, and, as such, subject to the requirements of s. 5(1) of the Illegal Immigrants (Trafficking) Act 2000 (as inserted by s. 34 of the Employment permits Act 2014)? (iii) If the response of 22 March 2019 was a decision, and the appeal from the order of the High Court is properly before the Court, did the trial judge err in quashing the decision? Regarding the applicants’ appeal, the following issues arose for determination from the appeal notices and the parties’ submissions: (i) Did the process adopted by the first respondent in cancelling the passport breach the requirement for fair procedures? (ii) Did the first respondent have an obligation to consider the proportionality of his decision to cancel before so doing?
Held by Faherty J that she rejected the argument that the second respondent required the leave of the High Court before appealing the decision of 22 March 2019. She held that the Court’s jurisdiction to hear the second respondent’s appeal was not ousted by the absence of a certificate under s. 5 of the 2000 Act. She was satisfied that the trial judge was correct to quash the decision of 22 March 2019 on the basis of the second respondent’s failure to engage with a key issue raised by the Mother, namely that the fact of her separation should not have precluded the grant to her of a Stamp 3 permission for the relevant years; it was by reason of that failure that the matter was remitted to the second respondent. She agreed with the view taken by the trial judge that there was not enough in the alleged want of candour to decline relief in this case. She found no basis to interfere with the order of the trial judge quashing the decision of 22 March 2019 and remitting the matter to the second respondent for further consideration. She held that the Mother and Child had not established that the trial judge erred in finding that the first respondent did not breach fair procedures. She held that even if the case could be said to come within EU law (she was satisfied that it did not), in any event, the Mother’s submissions had not demonstrated how the concept of proportionality as referred to in Case C-135/08 Rottmann v Freistaat Bayern [2010] E.C.R. 1-01449 and Tjebbes and Others v Minister van Buitenlandse Zaken (Case C-227/17) would be breached given that the first respondent had specifically stated that he would reconsider a fresh application for a passport for the Child if the Mother adduced sufficient corroborated documentary proof that she was entitled to a Stamp 3 permission at the relevant times. She held that she would dismiss the Mother’s appeal.
Faherty J held that as the second respondent had not succeeded in her appeal, the Mother and Child should be entitled to their costs of the appeal. She held that as the Mother and Child had not been successful in their appeal, the first respondent should be entitled to the costs of the appeal.
Appeal dismissed.
JUDGMENT of Ms. Justice Faherty delivered on the 20 th day of May 2021
. There are two appeals before the Court arising from the judgment of the High Court (Barrett J.) dated 14 November 2019 and the Order made on 28 November 2019.
. The applicants in the proceedings (hereinafter referred to as “the Mother” and “the Child”) appeal against the “[i]mplicit refusal of Certiorari, Declaratory and Directive relief” by the High Court as against the Minister for Foreign Affairs and Trade (hereinafter “the first respondent”). The Minister for Justice and Equality (hereinafter “the second respondent”) appeals against the Order of certiorari quashing her decision of 22 March 2019, remitting the matter back for further consideration and directing that the Mother and Child recover fifty percent of their costs from the second respondent.
. The appeals concern the grant of a passport to the Child and its subsequent cancellation by the first respondent.
. Before proceeding further, it is useful to set out the relevant statutory provisions in issue in the appeal.
. Section 6(1) of the Passports Act 2008 (“the 2008 Act”) provides that a person who is an Irish citizen and is, subject to the Act, thereby entitled to be issued with a passport, may apply in that behalf to the Minister for a passport.
. Section 7(1) provides that before issuing a passport to a person, the Minister shall be satisfied:-
“(a) that the person is an Irish citizen, and
(b) as to the identity of the person.”
. Section 12(1) provides:
“The Minister shall refuse to issue a passport to a person if—
(a) The Minister is not satisfied that the person is an Irish citizen…”
. Section 18(1) address the circumstances in which a passport may be cancelled. For the purpose of the present proceedings, the relevant provision is s.18(1)(a):
“The Minister may cancel a passport issued to a person if—
(a) The Minister becomes aware of a fact or a circumstance, whether occurring before or after the issue of the passport, that would have required or permitted him or her to refuse under section 12 to issue the passport to the person had the Minister been aware of the fact or the circumstance before the passport was issued…”
. As to who is an Irish citizen, s.6(1) of the Irish Nationality and Citizenship Act 1956, as amended (“the 1956 Act”) provides that, subject to s.6A:
“Every person born in the island of Ireland is entitled to be an Irish citizen”.
. Section 6(6) provides that s.6(1) does not apply to a person born on or after the commencement of the Irish Nationality and Citizenship Act 2004 where inter alia neither of that persons parents was at the time of the person's birth an Irish citizen or entitled to be an Irish citizen, a British citizen, a person entitled to reside in the State without any restriction on his or her period of residence, or a person entitled to reside in Northern Ireland without any restriction on their period of residence.
. Section 6A (1) of the 1956 Act is important in the context of this appeal. It provides:
“A person born in the island of Ireland shall not be entitled to be an Irish citizen unless a parent of that person has, during the period of 4 years immediately preceding the persons' birth, been resident in the island of Ireland for a period of not less than 3 years or periods the aggregate of which is not less than 3 years.”
. Section 6B sets out in a number of subsections how the proper calculation of reckonable residence for the purposes of s. 6(A)(1) is to be determined. Section 6B (4) addresses residence of which account may not be taken in calculating residence for the purposes of s.6(A). For the purposes of the within proceedings, the relevant provision is s.6B(4)(b):
“A period of residence in the State shall not be reckonable for the purposes of calculating a period of residence under s.6 A if – …
(b) it is in accordance with a permission given to a person under section 4 of the Act of 2004 for the purpose of enabling him or her to engage in a course of education or study in the State…”
. The “Act of 2004” as referred to in s.6B(4)(b) of the 1956 Act is the Immigration Act 2004 (hereinafter “the 2004 Act”). Section 4 provides, in material part:
“(1) Subject to the provisions of this Act, an immigration officer may, on behalf of the Minister, give to a non-national a document, or place on his or her passport or other equivalent document an inscription, authorising the non-national to land or be in the State (referred to in this Act as “a permission”)
…
(7) A permission under this section may be renewed or varied by the Minister, or by an immigration officer on his or her behalf, on application therefor by the non-national concerned.”
. The Mother is a Malaysian national who arrived in the State in 2010. The Child was born in the State on 30 January 2018. On 26 February 2018, an application was made for an Irish passport for the Child. She was duly issued with a passport valid from 13 April 2018. The issue of the passport was based upon the residence permissions of the Mother to be in the State in the four years prior to the Child's birth, by reference to the requirement of s. 6A of the 1956 Act.
. The issuing of the passport came under review by the Passport...
To continue reading
Request your trial