M v The Minister for Foreign Affairs

JurisdictionIreland
JudgeMr. Justice O'Donnell
Judgment Date02 June 2022
Neutral Citation[2022] IESC 25
Docket NumberS:AP:IE:2021:000041
CourtSupreme Court
Year2022
Between/
UM (A Minor Suing by His Father and Next Friend MM)
Appellant
and
The Minister for Foreign Affairs and Trade

and

Passport Appeals Officer David Barry
Respondents

and

Irish Human Rights and Equality Commission
Amicus Curiae

[2022] IESC 25

O'Donnell C.J.

Dunne J.

Charleton J.

O'Malley J.

Baker J.

S:AP:IE:2021:000041

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Judicial review – Passport – Citizenship – Appellant seeking an order of certiorari quashing the decisions of the first and second respondents refusing to grant the appellant an Irish passport, and refusing to make a declaration that the appellant was an Irish citizen – Whether the first and second respondents erred in their respective decisions to refuse to issue the appellant with an Irish passport, where the appellant’s father and next friend had been physically present in the State for the period required by s. 6A of the Irish Nationality and Citizenship Act 1956

Facts: The first and second respondents, the Minister for Foreign Affairs and Trade and Passport Appeals Officer Barry, decided to refuse the appellant’s application for an Irish passport on the basis that he was not an Irish citizen. On the 10th November 2017, Stewart J ([2017] IEHC 741) gave judgment refusing an order of certiorari quashing the decisions of the first and second respondents refusing to grant the appellant an Irish passport, and refusing to make a declaration that the appellant was an Irish citizen. The Court of Appeal refused to grant the reliefs sought by the appellant in a judgment delivered on the 11th June 2020 ([2020] IECA 154). By a determination dated 1st November 2021 ([2021] IESCDET 120), the appellant was granted leave to appeal to the Supreme Court. The central issue in the case was whether the first and second respondents erred in their respective decisions to refuse to issue the appellant with an Irish passport, where the appellant’s father and next friend had been physically present in the State for the period required by s. 6A of the Irish Nationality and Citizenship Act 1956, but his presence was based on a declaration of refugee status that was subsequently revoked as it had been given on the basis of information which was false or misleading in a material particular. This involved a consideration of the effect of revocation on a child of the person who had the benefit of a declaration of refugee status and whether ss. 6A and 6B of the 1956 Act exclude the child from subsequently being entitled to citizenship notwithstanding that their parent had been in Ireland for the requisite period of time to enable the child to claim an entitlement to citizenship by reason of the revocation of the parent’s declaration of refugee status.

Held by Dunne J that, on the face of it, it was difficult to argue with the conclusion of the Court of Appeal that a declaration of refugee status which is revoked in circumstances where the revocation took place because the applicant had provided false and misleading information would appear at first instance to give rise to a view that the declaration, being based on a false premise, was void ab initio. However, it seemed to Dunne J that, in order to reach that conclusion, it was necessary to ignore the fact that the Minister has a discretion as to whether or not to revoke and is only required to do so when it is considered appropriate to do so. Dunne J held that the giving of such a discretion to the Minister would have enabled the Minister in an appropriate case to consider the effect of a decision to revoke on those who would appear to have obtained derivative rights prior to revocation. Taking that language into consideration, together with the language used in s. 5 of the Immigration Act 2004, it seemed to Dunne J that, while a declaration is in force, and until such time as it is revoked, it must be regarded as being valid. Dunne J could not accept the view that the effect of revocation in such circumstances is to render the declaration void ab initio.

Dunne J allowed the appeal.

Appeal allowed.

Judgment of Mr. Justice O'Donnell, Chief Justice, delivered on the 2 nd day of June, 2022.

1

. I agree with the judgment to be delivered by Dunne J. and the order she proposes. I wish, however, to set out my own reasons for coming to the same conclusion only because we are differing from both the High Court and a unanimous Court of Appeal on a difficult and complex area, which is of some importance in itself and which, moreover, raises some general issues of statutory interpretation.

2

. The facts of the case have already been fully set out in the judgment of Dunne J. For present purposes, it is enough to record that the applicant UM was born, to use the language of the Irish Nationality and Citizenship Act 2004 (“the 2004 Act”), “in the island of Ireland”, on the 1 st of June, 2013. His claim to a passport depends on citizenship. His claim to citizenship is by birth and through his father, MM, who was at that time in possession of a declaration of refugee status granted under the Refugee Act 1996 (“the 1996 Act”), and also a Stamp 4 permission (which it appears was provided to him in consequence of the declaration of refugee status), and had been living in Ireland for more than three of the four years immediately preceding his birth. The declaration of refugee status was granted on the basis of information which was false and misleading in material respects, which entitled the Minister to revoke the declaration under s. 21(1)(h) of the 1996 Act. The Minister did so on the 10 th of June, 2013. Since the application involves a contention that citizenship has been acquired by birth, the critical date must be the 1 st of June, 2013. The precise date of the revocation is not, however, critical to the legal argument. If the contention is correct then it is not relevant when precisely the refugee status was revoked: for the purposes of this case, therefore, it is sufficient that that date was subsequent to the birth of UM. The question is whether a post-birth revocation can mean that citizenship was not, or cannot be, acquired by a birth which occurred prior to that revocation.

3

. While the facts are clear-cut, the legal position is, however, much more complex. It is perhaps best approached as a matter of history. Article 9.1.1° of the 1937 Constitution provided that any person who was a citizen of Saorstát Éireann on the coming into force of the Constitution would become a citizen of Ireland. Article 9.1.2° provides that the future acquisition and loss of Irish nationality and citizenship should be determined in accordance with law. In 1998, the Constitution was amended as part of the circumstances relating to the adoption of the Good Friday Agreement and Article 2 of the Constitution was amended to provide that it was the entitlement and birth right of every person born in the island of Ireland to be part of the Irish nation. However, later again, in 2004, in circumstances explained in Kelly: the Irish Constitution (5 th ed, Bloomsbury Professional, 2018) at para. 3.3.02, Article 9.2 was amended to provide that:-

“a person born on the island of Ireland, which includes its islands and seas, who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen or entitled to be an Irish citizen is not entitled to Irish citizenship or nationality, unless provided for by law”.

UM falls within Article 9.2 in that he did not, at the time of his birth on the 1 st of June, 2013, have at least one parent who was an Irish citizen or entitled to be an Irish citizen. Thus, if he was entitled to Irish citizenship, it is only because it has been so provided for by law.

4

. The relevant law is that contained in s. 6 of the Irish Nationality and Citizenship Act, 1956 (“the 1956 Act”) as amended by the provisions of the Irish Nationality and Citizenship Act 2004. The 1956 Act provided, reasonably simply, that “every person born in Ireland is an Irish citizen from birth”. However, in 2004, s. 6 was amended to provide that “Subject to section 6A (inserted by section 4 of the Irish Nationality and Citizenship Act 2004), every person born in the island of Ireland is entitled to be an Irish citizen.”

5

. Section 6A, to which the entitlement set out at s. 6 was expressly made subject, was

“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 person's 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 6A(2) provides that this section, i.e., the residency requirement, does not apply to persons born before the commencement of the 2004 Act, nor to persons born in the island of Ireland to parents at least one of whom was an Irish citizen, a British citizen or a person entitled to reside in the State without any restriction on his or her period of residence including in accordance with the permission granted under s. 4 of the Immigration Act 2004. No argument was addressed to the exclusions contained in the subsections to s. 6A(2) and this case has proceeded on the basis that UM was a person covered by s. 6A and who could not benefit from any exclusion. For present purposes, therefore, it appears to be accepted that UM would be entitled to citizenship, and thus a passport, unless it can be said that the period of residence of MM in Ireland is not reckonable for the purposes of s.6A.

6

. This in turn requires a consideration of s. 6B of the 1956 Act, as inserted by the 2004 Act. Section 6B(4), so far as it is relevant, provides:-

“A period of residence in the State shall not be reckonable for the purposes of calculating a period of residence under section 6A if—

(a) it is in contravention of section 5(1) of the Act of...

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