U.M. (A Minor) v Minister for Foreign Affairs & Trade

JurisdictionIreland
JudgeMr. Justice Murray
Judgment Date11 June 2020
Neutral Citation[2020] IECA 154
Date11 June 2020
CourtCourt of Appeal (Ireland)
Docket NumberRecord No. 2018/117
Between
UM (A MINOR SUING BY HIS FATHER AND NEXT FRIEND MM)
APPLICANT/APPELLANT
- AND -
THE MINISTER FOR FOREIGN AFFAIRS AND TRADE

AND

PASSPORT APPEALS OFFICER DAVID BARRY
RESPONDENT

[2020] IECA 154

Donnelly J.

Ní Raifeartaigh J.

Murray J.

Record No. 2018/117

High Court Record No. 2015/184 JR

THE COURT OF APPEAL

CIVIL

Citizenship – Residence – Irish Nationality and Citizenship Act 1956 s. 6A – Applicant seeking Irish citizenship – Whether the applicant’s father’s presence in the State was reckonable for the purposes of the applicant’s claim of citizenship

Facts: The applicant was born in the State at a time when his father and next friend had been physically present in the jurisdiction for the period required by s. 6A of the Irish Nationality and Citizenship Act 1956, as amended, the effect of which is that certain persons born on the island of Ireland are not entitled to Irish citizenship unless one of their parents has been resident in the island for specified periods of time. That presence was based on a declaration of refugee status which had since been revoked. The reason the declaration was revoked was that it had been given following the provision by the applicant’s father of information which was false and misleading in a material particular. The High Court (Stewart J) held that residence procured in this way could not be taken into account in reckoning presence in the State for the purposes of the derivative citizenship provided for in s. 6A ([2017] IEHC 741). The applicant appealed to the Court of Appeal against that decision. His case was based upon a close reading, and strict application, of s. 6B (4)(a) of the 1956 Act.

Held by Murray J that the ‘permission’ upon which the applicant relied as grounding his claim of citizenship was on the undisputed evidence in this case obtained by the applicant’s father through the provision of false and misleading information; it was not, therefore, a permission within the meaning of s. 5(1) of the Immigration Act 2004. Murray J held that the revocation of the applicant’s father’s declaration of refugee status meant that that declaration was not ‘in force’ during the time the applicant’s father was physically present in the State; it follows that s. 5(3) of that Act did not accordingly operate to dis-apply the former provision insofar as his residence was concerned. Therefore, Murray J held that the applicant’s father’s presence in the State was not reckonable for the purposes of the applicant’s claim of citizenship.

Murray J held that the applicant’s appeal would be dismissed. Murray J noted that, having failed in his appeal, costs would normally follow that event. It was the intention of the Court to so order fourteen days from the date of this judgment unless either party applied within that time to request that the Court should otherwise order.

Appeal dismissed.

JUDGMENT of Mr. Justice Murray delivered on the 11 th day of June 2020
Background
1

The effect of s.6A of the Irish Nationality and Citizenship Act 1956 (‘the 1956 Act’), as amended, is that certain persons born on the island of Ireland are not entitled to Irish citizenship unless one of their parents has been resident in the island for specified periods of time. In this case the applicant, UM, was born in the State at a time when his father and next friend, MM, had been physically present in the jurisdiction for the period required by the section. That presence was based on a declaration of refugee status which has since been revoked. The reason the declaration was revoked was that it had been given following the provision by MM of information which was false and misleading in a material particular. Stewart J. ( [2017] IEHC 741) held that residence procured in this way could not be taken into account in reckoning presence in the State for the purposes of the derivative citizenship provided for in s.6A. This is an appeal against that decision.

2

MM is an Afghan national. He arrived in the State on 22 April 2005 and applied for refugee status for reasons of religion and political opinion. He claimed that he was at risk of persecution in Afghanistan because he had been born in Russia and because he was not a Muslim. He said that in 1998 his father had been killed by a Mujahedin Commander, who had for a time taken control of the area in which they lived and had been responsible for extorting money from his family and burning down their business. MM claimed at the time of his application that he had lived in Ghazni. Afghanistan for the previous five years and that during the winter of 2004/2005 he had been shown a newspaper article by his aunt's husband which contained an announcement for his arrest. He said that as a result he decided to leave the country. In the course of his application he stated that he had never applied for asylum before.

3

MM's application was refused in the first instance but was subsequently granted following an appeal to the Refugee Appeal Tribunal. He was advised of the decision on 14 July 2006. On 18 July 2006 MM was granted a ‘Stamp 4’ permission to remain in the State. That permission was thereafter renewed from time to time.

4

MM married UA's mother, MJ (also an Afghan national) in Peshawar, Pakistan on 15 February 2007. On 26 June 2012, MJ was granted permission to enter and reside in the State with MM on foot of a family reunification application. In September 2012 MM left Ireland and returned to Afghanistan.

5

On 19 October 2012 MM's permission to be in the State lapsed, having been renewed on seven occasions since it was first granted on July 18 2006. He was still out of the jurisdiction at that time. MM travelled back to Ireland on 5 November 2012 with MJ. On that date, MM was stopped by Immigration Officials in Dublin Airport. It emerged in the course of questioning that MM had been in Afghanistan, having travelled there on a single visit travel document issued by the Afghan embassy in Tehran. Thereafter the Department of Justice, Equality and Law Reform (‘DJELR’) learned that MM's fingerprints matched those of a “Habibullah Hamidi” who had claimed asylum in the United Kingdom on 4 April 2002. That application had been refused by the relevant authorities in that jurisdiction on 23 September 2004 - at which point MM appeared to have been still in the United Kingdom. Following the exhaustion of his appeal rights in respect of that decision “Mr. Hamidi” failed to report to the UK authorities as required and was recorded as an absconder by the UK Border Agency.

6

On 27 February 2013 the Irish Naturalisation and Immigration Service, an agency of DJELR, wrote to MM advising him that Minister of Justice, Equality and Law Reform (‘MJELR) proposed to revoke MM's declaration as a refugee. That proposal was based on two provisions of the Refugee Act 1996 as amended (‘the 1996 Act’) – s.21(1)(a) (arising where the refugee has voluntarily re-availed himself or herself of the protection of the country of his or her nationality) and s.21(1)(h) (arising where the declaration has been given on the basis of information which was false or misleading in a material particular). The letter also purported to base the proposal upon s. 11 (2)(b) of S.I. 518 of 2006. That provision refers to revocation of a declaration given to a person who misrepresented or omitted facts that were decisive for the granting of the declaration.

7

The letter identified amongst the reasons for the proposed revocation that MM had travelled to Afghanistan and stayed there for two months, that he had falsely stated in his original asylum application that he had left his country in January 2004 and had never applied for asylum in any other country before, and that he had claimed that in 2004/2005 he was handed a newspaper by his aunt's husband which prompted his departure from Afghanistan (he having seemingly been in the United Kingdom at that point). It recorded that he applied for asylum in the United Kingdom on 4 October 2002, that that application was refused, and that he had provided a different name and date of birth to the authorities in that jurisdiction. MM was advised that he could make representations in writing to MJELR within fifteen days. No such representations were made by him or on his behalf.

8

On 15 March 2013 MM's permission to be in the State was renewed on a temporary basis. UA was born in Galway on 1 June 2013.

9

On 10 June 2013. DJELR advised MM that MJELR had decided in accordance with s.21 of the 1996 Act (as amended) to revoke MM's declaration as a refugee ‘with effect from 31/08/2013’. This letter advised that the Minister was ‘invoking Section 21(1)(a) and (h)’. It recorded the same essential facts as grounding the determination as were set forth in the letter of 27 February. On 13 June. MM's Stamp 4 permission to remain was again renewed, expiring on 15 September 2013.

10

On 4 February 2014, an application was made on behalf of UA for an Irish passport. On 11 June 2014, the first respondent (‘the Minister’) informed UA that he intended to refuse his application pursuant to s.12(1)(a) of the Passports Act 2008 because the Minister was not satisfied that UA was an Irish citizen. This was based upon the revocation of MM's declaration of refugee status. No representations having been received in response to that letter, the application was refused by letter dated 25 July 2014. MM says that he and his wife were unaware of this refusal, and a review of that decision was requested by letter dated 15 October 2014. The Minister conducted a review, affirming the decision by letter dated 17 November 2014. This decision was affirmed on appeal by the second named respondent on 21 January 2015.

11

UM's mother, MJ, was granted a declaration of refugee status on 24 February 2015. A declaration of refugee status issued in respect of UM on the same day. UM was included in MJ's application for refugee status on the...

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