Sulaimon v Minister for Justice Equality and Law Reform, [2012] IESC 63 (2012)

Docket Number:323/10
Judge:Hardiman J.
 
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THE SUPREME COURTDenham C.J. 323/2010 Murray J.Hardiman J.Fennelly J.O’Donnell J.Between:FAISOL OLUWANIFEMI SULAIMON(an infant), suing by his Father and Next FriendFATAI A. AYIMLA SULAIMONRespondentandTHE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AppellantJUDGMENT of Mr. Justice Hardiman delivered the 21stday of December, 2012.This is the Minister’s appeal from the judgment of the High Court (Mr. Justice Ryan: 9th July 2010) and that Court’s consequent order of 30th July 2010. By that order the High Court quashed the Minister’s decision of 5th October 2009, to refuse to issue a Certificate of Nationality to the infant respondent.The titles “the Minister” or “the Appellant” are used in this judgment to refer to the Minister for Justice, Equality and Law Reform. In general, I have used the form “the appellant” in referring to steps taken or contentions made in the present proceedings. I have used the form “the Minister” in referring to steps taken in that capacity in the past, in relation to the infant respondent’s application for a certificate of nationality, or otherwise under the Immigration Act 2004. Where the word “Minister” occurs in a statute, a reported judgment, official correspondence or other material cited, I have retained it regardless of context. By virtue of s.2 of the Ministers and Secretaries Act 1924, the Minister is a distinct legal entity, a Corporation Sole with perpetual succession, and an official Seal, and may sue or (as in this case) be sued under his or her official title. The phrases mentioned above are, as used in this judgment, references to the legal entity created by s.2 of the Act of 1924, and not to any individual holder of the Office, past or present.The phrases “infant respondent” or, in more personal contexts, “the child” are references to the four year old boy whose nationality is at issue in these proceedings. He was originally the Applicant, the moving party in this action. Being an infant he was required to sue through a “next friend”, in this case his father. When he succeeded in the High Court, and the Minister appealed to this Court, he became the “infant respondent”. His standing and relevant history will shortly be discussed below.The infant respondent’s application for a certificate of Irish nationality, and for an Irish passport, were refused on grounds so threadbare that I regard the administrative decision which the appellant upholds in these proceedings as not merely being wrong, but as flying in the face of the ordinary meaning of words and numbers, especially dates. I have two concerns in particular. The first is that the appellant maintained in this case that a particular thing was done only on the 22nd July 2005 even though correspondence from his department, and an internal departmental record, makes it quite clear that the relevant thing was done on the 7th July 2005. The whole case turns on the difference between the two dates. Secondly, the appellant has defended this case without contradicting the infant respondent’s evidence, and without putting forward any evidence of his own, but in a wholly abstract and theoretical way, on the basis of successive (and inconsistent) hypotheses as to how the Minister may have thought or acted at different stages of a bureaucratic procedure. In my view this is an inadmissible manner in which to conduct litigation and has led to the advancing of highly contrived and artificial arguments, such as have brought other areas of the law into disrepute. It is dispiriting to see State litigation conducted in this way, at public expense. It must also have subjected the family of the infant respondent to prolonged anxiety and to no little expense.It is on account of the two concerns mentioned above that I offer a judgment of my own in addition to the learned and convincing judgment of Mr. Justice O’Donnell, which is about to be delivered and with which in general I agree. I have not however considered the position that would arise (especially in the context of correspondence such as found in this case) if the infant respondent were marginally on the wrong side of the cut off point created by s.6A(1) of the Irish Nationality and Citizenship Act 1956 (as amended), and I express no opinion about that. I believe the infant respondent to be comfortably on the right side of that cut off point. The section is set out and discussed below.___________________________________Faisol Oluwanifemi Sulaimon (“the infant respondent”) was born in the Rotunda Hospital, Dublin on the 24th August, 2008. He is therefore now almost four years and four months old. He lives with his father in Tyrrelstown, Dublin 15. The boy’s father is a naturalised Irish citizen. He has an older sister (born 31st July, 2002 in Ireland and now ten years old). She is an Irish citizen because she was born in 2002, before Irish law changed dramatically in 2004. The infant respondent has lived in Ireland all his life.Background.This case is about whether the infant respondent is entitled to a certificate of Irish nationality from the Minister. If he is, then he can also obtain an Irish passport and be treated for all purposes as an Irish citizen, like his father and sister. The law on this issue is set out below. For present purposes it comes down to this: his entitlement depends on whether a parent (his father in this instance) was lawfully resident in Ireland for a total of three of the four years immediately preceding the boy’s birth. “Lawfully resident” means resident here with the permission of the Minister for Justice. There is no doubt that the father was resident here for well in excess of the required period; the sole issue in this case is whether he was “lawfully” resident, that is, resident with the permission of the Minister for three years of the four years immediately preceding Sunday 24th August 2008. The father says he was continuously and lawfully resident at least since 7th July 2005. The Minister says he was lawfully resident only since 22nd July 2005. This is the nub of the case.The Central Event.On the 7th July 2005 (about thirty-seven and a half months before the boy’s birth) a civil servant in the Minister’s department wrote to the father in relation to his “… application for permission to remain in the State…”. The Department’s letter continued:“As an exceptional measure, I am to inform you that the Minister has decided to grant you permission to remain in the State for two years until 07/07/2007. Your case will be reviewed at the end of this period”. (Emphasis added)The meaning of the words “… for two years until 07/07/2007” is the central issue, doggedly disputed between the appellant and the infant respondent.The father says that this letter demonstrates a permission for him to remain in the State and that this permission was granted on the 7th July, 2005 and was valid for two years. He was not alone in this view. Very revealingly, the Department itself thought so too until something happened to make it change its collective mind.We know the Department’s view very precisely because, in 2007, the father made an application for renewal of his permission to remain. This, too, was granted (subject to certain conditions). In the departmental document, dated the 23rd July 2007, in which a civil servant recommended to the Minister that the permission to remain should be extended, it is noted:“Date of permission to remain under IBC/05 granted: 07/07/2005”.This whole case is about the appellant’s attempts to resile from this position. Unless he can do this, the infant respondent must succeed. The phrase 1BC/05 refers to a policy adopted in 2005 relating to Irish Born Children and their families.Although the note just quoted is of obvious interest its role in the case is merely incidental or illustrative. The infant respondent’s case stands or falls on the letter of 7 July 2005.______________________________________The meaning of the letter.Of course a date may be placed on an official document such as the one described above in error or as a result of some kind of misunderstanding. But such a thing does not appear to be likely, or even possible, in the present case for the following reasons.The document mentioned above, giving the date on which permission was granted as 07/07/2005, was obtained in the course of this action by a process of Discovery; so too was the Departmental document in which the Minister was advised to grant the father’s first application for leave to remain (2005). This recommendation is also dated 7th July 2005. Since the letter of the same date, quoted above, states in terms that the Minister has (i.e. already) decided to grant permission and since the Minister never does this without a recommendation one way or another being before him, it is clear that (i) the recommendation, (ii) the Minister’s decision, and (iii) the letter notifying the father of the Minister’s decision all came into being on the same day, the 7th July, 2005.Even apart from that, the permission to remain was permission to remain in the State “for two years until 7/07/2007 ”. Therefore the father was not simply granted permission to remain in the State for a period of two years; he was granted permission to remain for the period of two years ending on the 7th July, 2007. According to ordinary reckoning of dates and periods of time, that is a period beginning on the 7th July 2005. The result of this elementary exercise is confirmed by the fact that it was stated unambiguously (as we have seen) by the Department in an internal document that the 7th July 2005 was the day on which permission was in fact granted. It was granted by the Minister and subsequently renewed by him. The 7th July 2005 is the only date on which a period of two years ending on 7th July 2007 can begin.Why does that matter?This whole case depends on the answer to the question, did the Minister grant permission to remain in the State to the father on the 7th July 2005, or did the permission (as...

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