Sulaimon v Minister for Justice Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr Justice Ryan
• Judgment Date: 09 July 2010
• Neutral Citation: [2010] IEHC 507
• Docket Number: [No. 1173 J.R./2009]
• Court: High Court
• Date: 09 July 2010

[2010] IEHC 507

THE HIGH COURT

[No. 1173 J.R./2009]

Sulaimon (a minor) v Min for Justice

JUDICIAL REVIEW

BETWEEN

FAISOL OLUWANIFEMI SULAIMON (AN INFANT, SUING BY HIS FATHER AND NEXT FRIEND FATAI A. AYIMLA SULAIMON)

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S28

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S6A

IRISH NATIONALITY & CITIZENSHIP ACT 2004 S4

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S6A(1)

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S6B(4)(A)

IMMIGRATION ACT 2004 S5(1)

IMMIGRATION ACT 2004 S1

IMMIGRATION ACT 2004 S4

IMMIGRATION ACT 2004 S4(1)

IMMIGRATION

Reckonable residence

Evidence - Stamped periods - Permission to remain - Continuous residence - Correspondence indicating permission to remain only operative on registration with GNIB - Exclusion of periods after grant of permission to remain by respondent but prior to registration - Letter from respondent not evidence of lawful residence for purpose of passport application -Delay by respondent in considering renewal application - No statutory basis for approach to calculation of reckonable residence - Whether respondent correct in excluding from calculation of reckonable residence periods between making of decision and date of registration - Distinction permission and document that is evidence of permission - Irish Nationality and Citizenship Act 1956 (No 26), ss 6A, 6B and 28 - Immigration Act 2004 (No 1), s 1 - Relief granted (2009/1173JR - Ryan J - 9/7/2010) [2010] IEHC 507

Sulaimon v Minister for Justice, Equality and Law Reform

Mr Justice Ryan

1 The applicant's father, who is a national of Nigeria, arrived in Ireland in 2001. In July, 2002 his then wife gave birth to their daughter, who is an Irish citizen. In March, 2005 he applied for permission to remain under the IBC/05 Scheme. By letter dated the 7^th July, 2005 (received by the applicant's father on the 11^th July, 2005) he was informed that the Minister for Justice, Equality and Law Reform ("the Minister") had decided to grant him permission to remain in the State for two years until the 7^th July, 2007. The letter said "this letter is not in itself evidence of permission to remain in the State and should not be used for any purpose other than to register at your local registration office." Upon registration, he would be given a certificate to show that he had been given permission to remain and what the relevant conditions were. The father attended at a registration office on the 22^nd July, 2005.

2 In early June, 2007, in anticipation of the expiry of his permission to remain, he applied for renewal of his permission to remain. The acknowledgement included the following in bold print:-

"Should your current leave to remain in the State expire while your renewal application is under consideration, you are advised to contact your local Garda National Immigration Officer to have your current permission to remain extended. You will require this acknowledgment letter, your passport and your GNIB card. This applies only to those who require evidence of entitlement to remain in the State for employment, social welfare and travel purposes."

3 The father did not require evidence of his permission to remain for any of those purposes and did not apply for an extension of his permission to remain when it expired on the 6^th July, 2007.

4 3. The Minister decided to renew the father's permission to remain for a further three years until the 7^th July, 2010. This was communicated by letter dated the 23^rd July, 2007, which the father received on the 24^th July, 2007, which said:-

"Please note that your permission to remain in the State will only become operative when you have registered at your local Registration Office".

5 It added that the Garda National Immigration Bureau ("the GNIB") would issue him with a certificate of registration if satisfied that he had obeyed the laws of the State, had not been convicted of any offence or been involved in any criminal activity, and had paid a fee of €100. The certificate would show that he had been given permission to remain in the State. He registered on the 14^th August, 2007. The applicant was born in Dublin on the 24^th August, 2008.

6 4. In October, 2008 the father applied to the Department of Foreign Affairs for a passport for his son. On the 31^st October, 2008 the Passport Office refused that application on the basis that the father did not have reckonable residence in Ireland during the four years preceding the child's birth. He was informed that he could apply to the Department of Justice, Equality and Law Reform for a certificate of nationality, which would then enable him to apply for an Irish passport on behalf of his child. Appended to the letter of refusal was the calculation of his reckonable residence, which found that he had been lawfully resident in the State for 1,092 days, i.e. three days short of three years (1,095 days). The period of residence was calculated by reference to the GNIB stamps on his passport. Included were the period from the 22^nd July, 2005 to the 7^th July, 2007 (716 days) and the period from the 14^th August, 2007 to the 23^rd August, 2008 (376 days). Excluded were the periods from the 7^th July, 2005 to the 21^st July, 2005 inclusive and the period from the 8^th July, 2007 to the 13^th August, 2007 inclusive.

7 5. By letter dated the 25^th February, 2009, the applicant's solicitors requested the Department of Foreign Affairs to review its decision. On the 27^th March, 2009, that Department affirmed its refusal, citing the guidelines of the Department of Justice, Equality and Law Reform whereby the only acceptable proofs of lawful residence are immigration stamps in passports or registration cards/booklets that are given to persons registering with the GNIB. These were the only documents that could be objectively verified by the Department of Foreign Affairs. The Department observed that the letters of the 7^th July, 2005, and the 23^rd July, 2007, were stated not to constitute evidence of the father's permission to remain and clearly indicated the need to register with the local immigration office. The father could pursue his son's claim to citizenship with the Department of Justice, Equality and Law Reform.

8 6. On the 18^th May, 2009, the applicant applied to the Minister for a certificate of nationality, pursuant to s. 28 of the Irish Nationality and Citizenship Act 1956, ("the INCA 1956") as amended. By letter dated the 16^th August, 2009, an officer of the Minister's Citizenship Division refused that application. The officer...