M.Y. v Minister for Justice, Equality and Law Reform

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMR. JUSTICE MICHAEL PEART
Judgment Date06 Dec 2017
Neutral Citation[2017] IECA 317
Docket NumberNeutral Citation Number: [2017] IECA 317 Record Number: 2016 100

[2017] IECA 317

THE COURT OF APPEAL

Peart J.

Finlay Geoghegan J.

Peart J.

Irvine J.

Neutral Citation Number: [2017] IECA 317

Record Number: 2016 100

BETWEEN:
M.Y.
- AND -
R.Y.
- AND-
N.Y (A MINOR SUING BY HIS FATHER AND NEXT FRIEND M.Y)
- AND -
Z.Y (A MINOR SUING BY HIS FATHER AND NEXT FRIEND M.Y)
- AND -
F.Y (A MINOR SUING BY HIS FATHER AND NEXT FRIEND M.Y)
APPELLANTS
- AND -
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
- AND -
THE MINISTER FOR FOREIGN AFFAIRS AND TRADE
NOTICE PARTY

Banking and finance – Loan – Overdraft – Company – Personal guarantee – Default by company on loan

Facts: The appellant was a director of a construction company which sought a loan from the respondent. The loan was agreed subject to a number of security conditions including a personal guarantee by the appellant. The loan was defaulted on, and the respondent obtained summary judgment. The appellant now applied have the matter adjourned to a full plenary hearing.

Held by Peart J, that the appeal would be allowed. The Court was persuaded that there were two arguable grounds that should be argued at a full hearing, and the grant of summary judgment would be set aside.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 6 TH DAY OF DECEMBER 2017
1

The first and second named applicants are nationals of the Islamic Republic of Pakistan. They arrived in this State in August 2001 and April 2002 respectively, and have resided here at all times since their arrival. For convenience I shall refer to them collectively as Y, except where the context may require that I refer to them individually.

2

Y are parents of, firstly, their son N, the third named applicant, born in this State on the 5th May 2002, and who is accordingly an Irish citizen by birth. On or about 12th June 2002 solicitors acting for Y sent their application to the Minister for leave to remain in the State based on their parentage of an Irish born child. As explained in an affidavit of Michael Flynn (see para. 11 thereof) filed by the Minister in these proceedings, their application was never considered because of a change of policy on the part of the Minister with effect from 13th February 2003. This change followed the judgment of the Supreme Court in L and O v. Minister for Justice, Equality and Law Reform delivered on the 23rd January 2003 ( [2003] 1 I.R. 1), and the insertion of s. 6A into the Irish Nationality and Citizenship Act, 1956 by way of amendment, and to which I refer in more detail in para. 3. No actual permission to remain in the State ever issued to Y on foot of their 12th June 2002 application for permission to remain. The Minister did not inform Y that their application would not be considered due to this change of policy, and failed to do so despite a number of letters and inquiries from Y's solicitors, all of which received no acknowledgement or response of any kind.

3

On the 1st January 2005 the Minister introduced the Irish-Born Child 05 residency scheme (‘the IBC05 scheme’). Under this scheme the non national parents of a child born in Ireland could apply for leave to remain on the basis of their parentage of an Irish-born child. Y made such an application on the 2nd February 2005. Their application was returned by the Minister's office on the 31st March 2005 as the forms had not been correctly completed. Corrected forms were sent to the Minister, but seem to have become mislaid. Thereafter, Y's solicitor sent further forms by registered post on the 4th April 2005. By letter dated 19th July 2005 Y's application for permission to remain under the IBC05 scheme was granted for a period of two years. There have been subsequent renewals of that permission.

4

Y are also the parents of their twin sons, Z and F, the fourth and fifth named applicants who were born in the State on the 30th June 2005 (19 days prior to the leave to remain permission just referred to). They did not acquire Irish citizenship from birth, as N had done, since their date of birth post-dated the 1st January 2005, being the date on which the Oireachtas gave effect to the amendment to the Constitution approved by the people of Ireland in 2004 and by which a child born to non-Irish parents was excluded from automatic Irish nationality and citizenship (viz. s. 6A of the Irish Nationality and Citizenship Act, 1956, inserted by s. 4 of the Irish Nationality and Citizenship Act, 2004), as the position had been previously. However, under s. 6A, they were entitled to make application for Irish citizenship, and to be granted citizenship provided one of their parents met the specified period of reckonable residence in the State, namely that during the period of 4 years immediately preceding the birth of Z and F the parent had been resident on the island of Ireland for a period of not less than three years.

5

In the belief and understanding that Z and F were entitled to Irish citizenship and therefore to Irish passports on the basis that they (Y) met the required period of reckonable residence for the purposes of s. 6A(1), Y made Irish passport applications for Z and F. These applications were refused for a reason which has given rise to these proceedings.

6

The reason for refusal was essentially that the Minister considered that Y were not lawfully residing in the State until they received a permission to do so by letter dated 19th July 2005, and therefore were in contravention of s. 5 of the Immigration Act, 2004 which came into force on the 13th February 2004, and therefore did not have the required period of reckonable residence prior to the birth date of Z and F for them to be Irish citizens by birth. Section 5, subsections (1) and (2) provide:

‘5.(1) No non-national may be in the State other than in accordance with the terms of any permission given to him or her before the passing of this Act, or a permission given under this Act after such passing, by or on behalf of the Minister.

(2) A non-national who is in the State in contravention of subsection (1) is for all purposes unlawfully present in the State. [Emphasis provided]

7

I have noted already that no permission to reside in the State was ever granted to Y on foot of their June 2002 application. I have also noted that from the 13th February 2004 no non-national was permitted to be in the State other than on foot of a permission granted prior to that date, or a permission granted under the Immigration Act, 2004. I have further noted that the first occasion on which Y were granted such a permission (under the IBC05 scheme) was by the Minister's letter dated 19th July 2005 after the passing of the 2004. The Minister has now accepted (contrary to a previously stated position) that Y are considered to have been lawfully in the State up to the 13th February 2004 – in other words until the introduction of s. 5 of the 2004 Act. It is because no such permission was granted to Y until the 19th July 2005 that the Minister considers that the hiatus period between 13th February 2004 and 19th July 2005 is not reckonable for the purpose of s. 6A of the 1956 Act as amended since they were in contravention of s. 5(1). Z and F can be considered to be Irish citizens and therefore entitled to Irish passports, only if Y meet the s. 6A residency requirement on the date of their birth. If the Minister is correct then it is clear that Z and F are not entitled to Irish passports under s. 12(1)(a) of the Passports Act, 2008 which provides that the Minister shall refuse to issue a passport to a person if the Minister is not satisfied that the person is an Irish citizen.

8

In their amended statement of grounds filed in the High Court the appellants claimed the following declarations by way of judicial review:

(i) A declaration that [Y]'s residency from the 13th February 2004 to 30th June 2005 is reckonable within the meaning of section 6A of the Irish Citizenship and Nationality Act 1956 [sic], as amended by the Act of 2004.

(ii) A declaration that [Y] have resided lawfully in the State since 5 May 2002.

(iii) A declaration that [Z] and [F] are entitled to Irish citizenship on the basis of their parents' lawful residence in the State as provided for by section 6A of the Citizenship and Nationality Act 1956 [sic] as amended by the Act of 2004.

9

By order of the High Court (Clarke J.) dated 26th November 2012 leave was granted to seek those reliefs on the following grounds:

‘(i) The respondent has erred in law in finding that [Y] did not accrue reckonable residence for the purpose of section 6A(1) of the Irish Nationality and Citizenship Act 1956, as amended, between the 13th February 2004 and the 30th June 2005.

(ii) The rights of [N] under Article 20 TFEU and Article 7 of the Charter, in combination with each of the applicants' family rights pursuant to the Convention and the ECHR, have been breached by the respondent by reason of his refusal to recognise a period of his father's residency which was lawful by reference to EU law, and which has deprived the family unit herein of rights which are ancillary to [Y]'s right of residency and which include the right of [Z] and [F] to be citizens of Ireland.’

(iii) The respondent has in all the circumstances breached the constitutional rights of [Z] and [F] to have the State by its laws, defend and vindicate their personal rights as citizens pursuant to Article 40 of the Constitution.

10

When the matter first came on for hearing in the High Court before Mr Justice MacEochaidh, it was agreed by all parties that a preliminary issue should be determined in the first instance as, depending on the outcome, it might dispose of the action. That issue was agreed in the following terms:

‘Was the Minister correct in discounting the period from 13th February 2004 (the date the Immigration Act 2004 came into effect) to the 30th June 2005 (the...

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