T.R.I. v The Minister for Foreign Affairs and Another

• Jurisdiction: Ireland
• Judge: Ms Justice Bolger
• Judgment Date: 21 February 2024
• Neutral Citation: [2024] IEHC 96
• Court: High Court
• Docket Number: [Record No. 2022/1073 JR]

In the Matter of Irish Nationality and Citizenship Act 1956

and

In the Matter of the Passport Act

Between

T.R.I. (A Minor Suing By His Mother and Next Friend L.B.)

Applicant

and

The Minister for Foreign Affairs and The Minister for Justice

Respondents

[2024] IEHC 96

[Record No. 2022/1073 JR]

THE HIGH COURT

Counsel for the applicant: Michael Lynn SC, Cillian Bracken BL

Counsel for the respondents: Eoin Carolan SC, Aoife McMahon BL

JUDGMENT of Ms Justice Bolger delivered on the 21 ^st day of February 2024

1 . This is an application to quash the first respondent's decision of 15 November 2022 refusing the applicant's application for a passport. For the reasons set out below, I am refusing this application.

Background

2 . The applicant was born in the State on 12 September 2019, at which time his mother and next friend had a declaration of subsidiary protection. On 24 August 2021, the applicant's mother applied for a passport for the applicant in reliance on s. 6A(2)(d)(i) of the Irish Nationality and Citizenship Act 1956 (hereinafter referred to as “the 1956 Act”) on the basis that the applicant had been born to parents, at least one of whom was, at the time of their birth, a person entitled to reside in the State without any restriction on their period of residence. By decision dated 15 November 2022 (the decision impugned here), the application was refused on the basis that s. 6A(2)(d)(i) did not apply to a person with subsidiary protection as they were not a person entitled to reside in the State without any restriction on their period of residence for the purpose of section 6A(2)(d)(i).

3 . The applicant was given leave to judicially review that decision on the basis that it was contrary to s. 6A(2)(d)(i) and that the first respondent had fettered his discretion to the second respondent. At hearing, the applicant's counsel confirmed that the case primarily concerned the interpretation of s. 6A(2)(d)(i) and that he was not pursuing the fettering discretion point, a position which seemed very sensible given that even if the decision was quashed on that ground, the utility of any such order would still depend on the court's interpretation of section 6A(2)(d)(i).

Statutory provisions

4 . Section 6A(1) of the 1956 Act, as amended:-

“(1) 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. (2) This section does not apply to—

…

(d) a person born in the island of Ireland—

(i) to parents at least one of whom was at the time of the person's birth a person entitled to reside in the State without any restriction on his or her period of residence (including in accordance with a permission granted under section 4 of the Act of 2004)”.

5 . Section 54 of the International Protection Act 2015 (hereinafter referred to as “the 2015 Act”):-

(1) A qualified person shall be given a permission to reside in the State for a specified period of not less than 3 years.

(2) A family member shall be given a permission to reside in the State for a specified period of not less than 1 year and, in case of renewal, of not less than 2 years.

(3) A permission given under subsection ( 1) or (2) —

(a) shall be renewable unless compelling reasons of national security or public order (“ordre public”) otherwise require, and

(b) shall cease to be valid where the person to whom it was given ceases to be a qualified person or a family member, as the case may be.

6 . A qualified person is defined at s. 2 of the 2015 Act as:

“a person who is either –

a) a refugee and in relation to whom a refugee declaration is in force, or

b) a person eligible for subsidiary protection and in relation to whom a subsidiary protection declaration is in force”.

Submissions of the parties

7 . The applicant submitted that s. 54 of the 2015 Act means that the applicant's mother is entitled to reside in the State without restriction on her period of residence and emphasises the mandatory nature of the renewal as the section says “shall” be renewable, subject to compelling reasons of national security or public order or her ceasing to be a qualified person. She could cease to be a qualified person by acquiring naturalised citizenship or as a result of the cessation of her subsidiary protection. The applicant says this means that the period of residence is open-ended. The applicant's case is succinctly summarised in the written submissions as follows:-

“Thus, the requirement of section 6A that at least one parent of the child be, at the time of the child's birth, “without any restriction on his or her period of residence” was met in the Applicant's case. At the time of her birth, there was no restriction on her mother's period of residence because it was renewable and not in any way curtailed by time.”

8 . The applicant relied heavily on the decision of the Court of Appeal in AJK. v. The Minister for Defence [2020] 2 IR 800 in submitting that s. 54 provides for an open-ended right of residence, described at para. 78 of Donnelly J.'s judgment as “in effect an open-ended right of residence”. Whilst Donnelly J. identified reasons of national security or public order as applicable restrictions, the applicant submits that these were not time restricted, as required by s. 6A(2)(d)(i), and to conflate the potential application of a cessation of subsidiary protection with a time-based restriction (as the respondents sought to do) would undermine the concept of subsidiary protection. The applicant questions who can avail of s. 6A(2)(d)(i) if the respondents' interpretation, that it excludes persons with subsidiary protection, is correct.

9 . The respondents emphasise the significance of citizenship and accept that the legislature is entitled to set the conditions necessary for an entitlement to citizenship as of right, provided they are constitutional and have due regard to EU law. The right of residence on foot of subsidiary protection is provisional and contingent on the continuation of the circumstances that justified the initial grant, which are independent of the acts of the person holding it. Citizenship and non-citizenship may be treated differently if justified by that difference in status ( N.H. v. Minister for Justice [2018] 1 IR 246; O'Meara v. Minister for Social Protection (recent Supreme Court decision [2024] IESC 1). The State has lawfully chosen to treat citizens and persons with subsidiary protection differently in relation to the citizenship rights of the children of either group who were born in the State. The respondents dispute the application of AJK which was nothing to do with citizenship. They urge the court to take account of the applicant's right to seek naturalised citizenship by way of his own or his parents' period of reckonable residence in the State.

Discussion

10 . The applicant's entitlement to apply for naturalised citizenship on the basis of his reckonable residence in the State for three years or either of his parents' period of reckonable residence in the State is not...