Edet v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 14 November 2006
• Neutral Citation: [2006] IEHC 347
• Docket Number: [No. 222 J.R./2006]
• Court: High Court
• Date: 14 November 2006

[2006] IEHC 347

THE HIGH COURT

[No. 222 J.R./2006]

EDET v MIN FOR JUSTICE

JUDICIAL REVIEW

BETWEEN/

ARMSTRONG EDET (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND TEMILOLA EDET) AND TEMILOLA EDET

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

AND

HUMAN RIGHTS COMMISSION AND ATTORNEY GENERAL

NOTICE PARTIES

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS FOURTH PROTOCOL ART 3

D (T) v MIN EDUCATION & ORS 2001 4 IR 259

Abstract:

Immigration - Asylum - Administrative law - Administrative scheme - Irish born child residency scheme - Application for leave to remain in State on basis that parent of Irish citizen infant - Application refused on basis that application made from outside the State - Whether scheme addressed to persons residing outside State - Whether applicants entitled to rely on terms of scheme

the respondent announced procedures under a revised administrative scheme for the receipt of applications from non-national parents of Irish citizen children for “permission to remain in the State” (known colloquially as “the IBC/05 scheme”). The applicants, who at the relevant time resided outside the State, made an application for consideration under the scheme. They were granted leave to seek an order of certiorari quashing the refusal of the respondent to consider the application. The respondent had refused to consider the applications on the basis that they had been made whilst the applicants were outside the State.

Held by Ms Justice Finlay Geoghegan in refusing the applicants the relief sought that the respondent, in announcing the scheme could not be considered to be announcing revised arrangements which would include the receipt and consideration of applications from parents of Irish citizen children who were outside the State at the date upon which they made the application as such an application would have had to have been an application to enter the State and thereafter to remain there. Accordingly, the administrative scheme was not addressed to the applicants.

Reporter: P.C.

SUPPLEMENTARY JUDGMENT of

Ms. Justice Finlay Geoghegan

1 delivered on the 14th day of November, 2006.

2 This judgment is supplementary to the judgment given today in proceedings 2006 No. 102 J.R.Deborah Olarantimi Bode and Others v. The Minister for Justice to which I will refer as the "the Bode judgment".

3 These proceedings were heard contemporaneously four other applications of judicial review referred to in the Bode judgment and it was agreed that in reaching my conclusions on the common issues I should take into account the facts of each of the applications. For the reasons set out the applicants herein were factually in a different position.

4 The first named applicant is a citizen of Ireland having been born in the State on the 10^th December, 2002. The second named applicant is his mother and is a national of Nigeria. The second named applicant arrived in Ireland in November, 2002 and left Ireland following the making of a deportation order, but was not deported, in July, 2004.

5 The factual position of the second named applicant differs significantly from that of the parent applicants in the other four sets of proceedings heard contemporaneously in two important respects. Firstly Ms. Edet made her application on IBC/05 in March, 2005, whilst resident in Nigeria. Secondly, the decision made on her application under IBC/05 was a refusal to consider her application for permission to remain in the State "under the revised arrangements". In the letter of refusal of the 14^th September, 2005, having referred to her application it was stated:

"The revised arrangements apply to persons who are currently resident in the State and have been resident with their Irish born child in the State on a continuous basis since his or her birth. Applications from persons who are not currently resident in the State with their child cannot be considered.

In this case, I note from the completed form IBC/05 that you are not resident in the State.

Accordingly, I am to inform you that an application from you for permission to remain in the State cannot be considered under the revised arrangements. The application form IBC/05 and your supporting documents are returned herewith."

6 The refusal at issue in this application was a refusal to consider Ms. Edet's application under the revised arrangements which became known as IBC/05 as distinct from a refusal of an IBC/05 application for permission to remain in the State.

7 Leave was granted on the 3^rd March, 2006, to seek an order of certiorari quashing the decision of the respondent dated the 14^th September, 2005, which is described in the statement of grounds as a decision "to refuse to grant permission to reside in the State to the second named applicant". Declarations were also sought as to the illegality of the respondent's alleged refusal to grant permission to the second named applicant to reside in the State and an order of mandamus sought requiring the respondent "to reconsider the second named applicant's application for permission to reside in the State made by letter dated the 24^th March, 2005.

8 The submissions made by the parties in these proceedings were similar to those advanced in the other four sets of proceedings and considered in theBode judgment. In addition the applicants sought to rely on article 3 of Protocol 2 to the European Convention of Human Rights.

9 Whilst no application was made to amend the statement of grounds it appears to me that the court must...