N.A. (Somalia) v Minister for Justic and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Stewart
• Judgment Date: 10 November 2017
• Neutral Citation: [2017] IEHC 741
• Court: High Court
• Docket Number: [2015 No. 56 J.R.]
• Date: 10 November 2017

BETWEEN

N.A. (SOMALIA)

W.H. (IRELAND)

(A minor suing by his mother and Next Friend N.A.)

APPLICANTS

AND

MINISTER FOR JUSTICE AND EQUALITY,

IRELAND,

ATTORNEY GENERAL,

RESPONDENTS

BETWEEN

U.M. (AFGHANISTAN)

(A minor suing by his father and Next Friend M.M.)

APPLICANT

AND

MINISTER FOR FOREIGN AFFAIRS AND TRADE

and

PASSPORT APPEALS OFFICER DAVID BARRY

RESPONDENTS

[2017] IEHC 741

Stewart J.

[2015 No. 56 J.R.]

[2015 No. 184 J.R.]

THE HIGH COURT

JUDICIAL REVIEW- ASYLUM LIST

Asylum, Immigration & Nationality - Irish Citizenship and Nationality Act 1956 - The Passports Act 2008 - Refusal of grant of citizenship to minors - Revocation of refugee status of fathers - Nemo dat quod non habet

Facts: In two different proceedings, minor applicants, through their respective parents, sought an order for recognising and declaring that the minor applicants had held the Irish citizenship from birth. The central issue was whether the subsequent revocation of the grant of refugee status of the fathers of the minor applicants had the effect of depriving them of the entitlement to claim citizenship.

Ms. Justice Stewart refused to grant the desired reliefs to the applicants. The Court held that the citizenship was a privilege for non-nationals and they could not claim it as a matter of right. The Court stated that the citizenship must be acquired lawfully and bona fide. The Court observed that the effect of revocation of grant of refugee status to both the applicants' fathers would make the grant of citizenship to the minor applicants as void ab initio. The Court stated that prior to the commencement of the present hearing; the relevant authorities had granted protective status to both the applicants taking note of the unfortunate position of the minor applicants on foot of the applications brought by their mothers. The Court further stated that the applicants could be granted citizenship status depending upon the fulfilment of the residency requirements by their mothers.

JUDGMENT of the Hon. Ms. Justice Stewart delivered on the 10th day of November, 2017.

1 The above-named cases were listed for hearing on the same date and were heard together by agreement of the parties. The applicants seek an order recognising and/or declaring that the applicant minors have held Irish citizenship from birth. While a variety of reliefs were sought by both applicants, the arguments essentially centred around the question of whether or not the grant of citizenship and the subsequent issuance of a passport in respect of each of the applicant minors on foot of their natural fathers acquiring a declaration of refugee status conferred and/or had the effect of conferring citizenship by birth upon the applicants. Both of the applicants' fathers had their declarations of refugee status subsequently revoked on grounds of having been unlawfully obtained, as they had made representations to the respective authorities which subsequently turned out to be inaccurate, false and misleading in a material way. The applicants contend that the prior grant of citizenship to the applicant minors is unaffected by this revocation of their fathers' refugee status. The State respondents contend that on foot of their revocation, both of the fathers' refugee status were void ab initio, thereby rendering the grant of citizenship void ab initio as well.

Background

2 In the first case, the first-named applicant, a Somali national, arrived in the State in 2004. She married another Somali national and was granted residence permission based on his refugee status, which he acquired in June, 2008. His refugee status was revoked in October, 2011 under s.21(1)h of the Refugee Act 1996, on grounds that the information provided by him to the decision-maker in his case had been materially false or misleading. Following a notable delay, the first-named applicant's residence permission was also revoked, as her husband was no longer a recognised refugee. The second-named applicant was born nine months after his father was recognised as a refugee. The father had resided in Ireland for an aggregate three of the previous four years. This enabled the second-named applicant to qualify for Irish citizenship from birth within the meaning of s.6(6)(a)(iii) of the Irish Citizenship and Nationality Act 1956. This same opportunity was not open to the second-named applicant's elder sibling because they were born before the restriction was removed. An Irish passport was issued to the second-named applicant in 2010.

3 Questions as to the first-named applicant's status were resolved following the grant of subsidiary protection on 16th March, 2015. The dispute that gives rise to these proceedings relates to the status of the second-named applicant. In the process of resolving a Ruiz Zambrano application by the first-named applicant, the first-named respondent issued a decision on 15th June, 2015, in which she made the finding that the second-named applicant was not an Irish citizen. The basis on which citizenship rights had been vested (his father's refugee status) was now void. The first-named respondent found that this operates ab initio and that the second-named applicant had no entitlement to citizenship rights as a result.

4 The facts in the second case are broadly similar to those in the first case. The applicant's father, an Afghan national, was granted refugee status on 14th July, 2006. A family reunification application was granted on 26th June, 2012, allowing the applicant's mother to travel to this State. The applicant was born on 1st June, 2013. The father's refugee status was revoked on 10th June, 2013. This revocation was notified to take effect from the 31st August, 2013. This step was taken on similar grounds to those in the first case. In adition, the father had also temporarily returned to Afghanistan eight months earlier. On 24th February, 2015, the mother and the applicant were granted refugee status. The father was granted permission to remain on foot of a family reunification application. On 17th November, 2014, the first-named respondent refused an application made on behalf the applicant for an Irish passport. On 21st January, 2015, this refusal was affirmed on appeal. This refusal is justified on similar grounds to those in the first case.

Submissions

- N.A. and W.H.

5 In reviewing the conduct that lead to the revocation of the father's refugee status, it is suggested that:

- It was not a severe breach and it could have been defended,

- The falsity at issue may not have been relevant to the decision's validity, as many Somali cases are decided on ethnicity and generalised risk alone,

- Cases involving the exact same circumstances went in the applicant's favour (the applicants refer to Case No. 69/878/05 in that regard); and,

- The offending behaviour did not amount to fraud, nor does any fraud exist on the applicants' part.

6 Mr Lynn, S.C., with Mr. Buckley B.L., for the applicants, directs the Court's attention to Art. 9 of Bunreacht na hEireann and ss. 19 and 28 of the 1956 Act. They submit that no construction of these provisions grants the State the power to strip citizenship that has been acquired at birth until the Oireachtas legislates for it, which it has not. They suggest that this legislative gap has been maintained for policy reasons, namely that the normal motivators for the stripping of citizenship (fraud or misrepresentation by the candidate) cannot be performed by an infant. The applicants put all of the above facts within the context of the American case of In Re Findan 7 INTL.L.R. 274 (25th July 1933). But they also underline the fact that their case is much stronger than the one in Findan, as the US has a procedure in place for stripping derivative citizenship acquired at birth and Ireland does not.

7 In the impugned decision, as well as in their submissions, the first-named respondent relies on the cases of Robertson v. Governor of the Dochas Centre [2011] IEHC 24 and an English authority Kaziu & Ors. v. Secretary of State for the Home Dept. [2014] EWHC 832 (Admin). The applicant alleges that these cases, and any cases like it, are not an appropriate tool to be used in assessing the applicants' circumstances. Both of these cases involved fraud, of identity specifically. The consequences of those cases impacted the applicants themselves and not any children that they did or did not have. The legal procedures involved were also quite different, with Robertson addressing 'ordinary residence' and Kaziu dealing with naturalisation, as opposed to citizenship at birth.

8 The applicants rely on a number of provisions in s.6 of the 1956 Act to affirm the second-named applicant's Irish citizenship. They also allege that a joint construction of s.6(2)(a)(ii) of the 1956 Act and s.7 of the Passports Act 2008 puts the applicant's status as an Irish citizen beyond question.

9 While they maintain that the issue is irrelevant due to the above considerations, the applicants go on to address the matter of revocation acting ab initio. The applicants submit that s.21 of the 1996 Act does not provide for revocation to operate ab initio. They also allege that Clark J.'s comments in Adegbuyi v. Minister for Justice & Law Reform [2012] IEHC 484 as to revocation acting retrospectively are obiter and based in flawed legal reasoning. They argue that her finding was based on statements of the UNHCR but that this matter should be properly addressed with deference to EU law. The Qualification Directive ( Council Directive 2004/83/E.C. of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, O.J. 304/12 30.9.2004) post-dates the Irish law. The applicants submit that neither legislative source actually defines the...