Sulaimon v Minister for Justice Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Donnell,Mr. Justice Hardiman
• Judgment Date: 21 December 2012
• Neutral Citation: [2012] IESC 63
• Court: Supreme Court
• Date: 21 December 2012

Sulaimon (an infant) v Min for Justice

Between:

FAISOL OLUWANIFEMI SULAIMON (an infant), suing by his Father and Next Friend FATAI A. AYIMLA SULAIMON

Respondent

Respondent/Applicant

and

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

Appellant

Appellant/Respondent

[2012] IESC 63

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

O'Donnell J.

323/2010

THE SUPREME COURT

IMMIGRATION LAW

Nationality

Refusal - Appeal - Application of infant - Infant born in jurisdiction to naturalised Irish citizen - Whether infant entitled to certificate - Whether father lawfully resident for three of four years proceeding birth - Period of residence required - Concept of âÇÿlawful residence' - Permission to remain granted by letter - Dispute as to commencement of date of permission - Meaning of letter - Statutory provision on computation of periods of time - Submission that permission came into effect only on endorsing of passport by immigration officer - Ministerial power - Registration - Bode v Minister for Justice [2008] 3 IR 663; Liversidge v Anderson [1942] 1 AC 206 and Leontjava v Director of Public Prosecutions [2004] 1 IR 591 considered - Irish Nationality and Citizenship Act 1956 (No 26) s 6 - Immigration Act 2004 (No 1), ss 5 and 9 - Interpretation Act 2005 (No 23), s 18 -- Appeal dismissed (323/2010 - SC - 21/12/2012) [2012] IESC 63

Sulaimon v Minister for Justice and Equality

Facts: The applicant was a Nigerian national and father of a child who arrived in Ireland in 2011. He became also father of a child born in Ireland. He was entitled to remain in Ireland under the provisions of the then applicable Irish Born Child, permission which was extended. He applied for an Irish passport for his son under the terms of s. 6A Irish Nationality and Citizenship Act 1956, as amended. His application was refused as he was three days short of the required time period. The Court considered the nature of lawful residence and actual residence. A dispute arose as to the entitlement of the applicant to remain in Ireland and his application in advance of that permission of the renewal of his Irish Born Child Scheme permission to remain.

Held by the Supreme Court per O” Donnell J. (Denham CJ., Murray, Hardiman, Fennelly JJ. concurring), that the permission was granted irrespective of the date on which registration was effected. It would suffice to compare the date that the permission was granted and the Ministerial permission. The Act recognised that the Minister could grant permission and did not prescribe any formality for such permission. The Act did not provide details about the grant of the ministerial permission. It was also doubtful that an immigration officer would, in circumstances where the Minister had granted permission under the Irish Born Child scheme, seek to inscribe details of permission on the passport.

MINISTERS AND SECRETARIES ACT 1924 S2

IRISH NATIONALITY & CITIZENSHIP ACT 2004 S6A(1)

IRISH NATIONALITY & CITIZENSHIP ACT 2004 S3A

IRISH NATIONALITY & CITIZENSHIP ACT 2004 S16(3)

IRISH NATIONALITY & CITIZENSHIP ACT 2004 S9

INTERPRETATION ACT 2005 S18H

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S6A(1)

INTERPRETATION ACT S18

IMMIGRATION ACT 2004 S5

IRISH NATIONALITY CITIZENSHIP ACT 1956 S6A

IRISH NATIONALITY AND CITIZENSHIP ACT 2004 S4

IRISH NATIONALITY CITIZENSHIP ACT 1956 S6A(1)

IRISH NATIONALITY AND CITIZENSHIP ACT 2004 S6B(4)

IMMIGRATION ACT 2004 S5(1)

IMMIGRATION ACT 2004 S4(1)

IMMIGRATION ACT 2004 S9

IMMIGRATION ACT 2004 S9(1)A

CONSTITUTION ART 1

CONSTITUTION ART 5

BODE v MINISTER FOR JUSTICE 2008 3 IR 663

LIVERSIDGE v ANDERSON 1942 1 AC 206

IMMIGRATION ACT 2004 S9(2)

IMMIGRATION ACT 2004 S9(1)(A)

IRISH NATIONALITY AND CITIZENSHIP ACT 2004 S2

IMMIGRATION ACT 2004 S5(1)

IMMIGRATION ACT 2004 S4(1)

IMMIGRATION ACT 2004 S4(5)(D)

LEONTJAVA v DPP 2004 1 IR 591

INTERPRETATION ACT 2005 S7

INTERPRETATION ACT 2005 S18(G)

INTERPRETATION ACT 2005 S5

INTERPRETATION ACT 2005 S9

IRISH NATIONALITY AND CITIZENSHIP ACT 1956 S6(A)

IRISH NATIONALITY AND CITIZENSHIP ACT 1956 S6B(4)

IRISH NATIONALITY & CITIZENSHIP ACT 2004 S4(1)

IRISH NATIONALITY & CITIZENSHIP ACT 2004 S4(3)

Mr. Justice Hardiman

1 JUDGMENTS DELIVERED BY HARDIMAN J [MURRAY J CONCUR], & O'DONNELL J [DENHAM CJ, FENNELLY J & MURRAY J CONCUR]

2 This is the Minister's appeal from the judgment of the High Court (Mr. Justice Ryan: 9^th July 2010) and that Court's consequent order of 30^th July 2010. By that order the High Court quashed the Minister's decision of 5^th October 2009, to refuse to issue a Certificate of Nationality to the infant respondent.

3 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 Act2004. Where the word "Minister" occurs in a statute, a reported judgment, official correspondence or other material cited, I have retained it regardless of context.

4 By virtue of s.2 of the Ministers and Secretaries Act1924, 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.

5 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.

6 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.

7 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 22^nd 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 7^th 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.

8 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 Act1956 (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.

9 Faisol Oluwanifemi Sulaimon ("the infant respondent") was born in the Rotunda Hospital, Dublin on the 24^th 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 31^st 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.

10 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 24^th August 2008. The father says...