Tag Archive for: high court judgement

RECENT HIGH COURT JUDGMENT REGARDING ENTITLEMENT OF CHILDREN OF SAME-SEX PARENTS LIVING ABROAD TO IRISH PASSPORTS

RECENT HIGH COURT JUDGMENT REGARDING ENTITLEMENT OF CHILDREN OF SAME-SEX PARENTS LIVING ABROAD TO IRISH PASSPORTS

The High Court has recently delivered a judgment in respect of two families whose children were refused Irish passports in circumstances where they were born abroad to same-sex couples relying on the donor-assisted human reproduction (DAHR) procedure.

The central issue in the case was the interpretation of “parent” under section 7(1) of the Irish Nationality and Citizenship Act 1956. The Minister for Foreign Affairs’ current policy, following the Supreme Court decision in A, B & C v Minister for Foreign Affairs and Trade [2023] IESC 10 is to interpret section 7(1) as meaning that the “parents” of a child born outside the State, are (i) the child’s birth (or gestational) mother and (ii) the child’s biological father.

The Irish citizen parents in these joined cases were neither the gestational mother nor the biological father of their children but were recognised as the legal parent of their children outside of Ireland on their birth certificate from their country of birth. The Irish citizen parent in the Y case was the genetic mother of the child, albeit not the gestational mother. The Irish citizen parent in the X case was neither the genetic nor gestational mother but was a registered parent at the time of birth in Australian law.

It is important to note that provision has not yet been made by law for parental recognition which recognises parentage from birth in the case of children born outside the State following DAHR carried out and recognised in accordance with the law of the child’s domicile. There is provision for recognition for children born via the DAHR procedure in the State. This case is distinguished from the A, B & C v Minister for Foreign Affairs and Trade [2023] IESC 10 Supreme Court decision which concerned surrogacy, not DAHR.

In her judgment, Ms Justice Phelan found in respect of the Y family that the Minister for Foreign Affairs had “erred” in construing the section as excluding the genetic mother of a child recognised as a parent of that child in accordance with the law of their place of domicile. However, she rejected arguments advanced in respect of the X family that section 7(1) could also apply to “non-genetic, non-gestational parents”.

Nonetheless, the judge warned that the court’s “tolerance of legislative delays in providing for recognition of parents and children in a manner which properly respects and vindicates their identity and familial relationships is not infinite” and that “In a different case where evidence of real impact is demonstrated without sufficient justification coupled with ongoing legislative inertia, the balance may well be tipped,”.

Judge Phelan held that she was satisfied that “the absence of a legislative pathway providing for the acquisition of citizenship by the children of an Irish citizen domiciled or habitually resident abroad” constituted a “failure on the part of the State to vindicate constitutional rights”.

You can find the link to the judgement here.

Berkeley Solicitors are available to provide advice in respect of all matters relating to the Irish passport/Foreign Birth Registration application process.

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change.

Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

 

RECENT HIGH COURT JUDGMENT UPHOLDS REFUSAL OF APPLICATION FOR NATURALISATION BY IRISH ASSOCIATIONS

RECENT HIGH COURT JUDGMENT UPHOLDS DECISION TO REFUSE IRISH PASSPORT TO CHILD OF SUBSIDIARY PROTECTION HOLDER

The High Court has recently delivered a judgement in T.R.I. (A Minor Suing by his Mother and Next Friend L.B.) v The Minister for Foreign Affairs and the Minister for Justice [2024] IEHC 96.

The case concerned a minor child born in Ireland in September of 2019, whose mother holds a declaration of subsidiary protection status.

Subsidiary protection is granted to individuals facing a real risk of suffering serious harm if returned to their country of origin, or their country of former habitual residence.

In August of 2021, the Applicant’s mother applied for an Irish passport on behalf of her child.

Section 6A(1) of the Irish Nationality and Citizenship Act 1956 states that a person born on the island of Ireland “shall not be entitled” to Irish citizenship unless their parent has, during the four years immediately preceding the birth, a period of reckonable residence of not less than three years.

However, Section 6A(2)(d)(i) qualifies that section 6A(1) does not apply to a child born on the island of Ireland if one parent is entitled to reside in the State “without any restriction” on their residence.

As the mother is a subsidiary protection holder, it was argued that she fell within this subsection of persons who are entitled to reside in the State without any restriction on their period of residence. This would mean the child was entitled to Irish citizenship by birth, even though the mother had less than three years’ reckonable residence in the four years immediately prior to the child’s birth.

This application was refused on the 15th of November 2022, on the basis that Section 6A (2)(d)(i) of the 1956 Act does not apply to a person with subsidiary protection.

The Applicant, through his mother, challenged this decision by way of Judicial Review proceedings in the High Court. It was argued that the mother is entitled to reside in the State without restriction, as the relevant law states that her permission “shall” be renewable, and it is not in any way restricted by time.

The Applicants relied on the Court of Appeal decision in AJK v The Minister for Defence [2020] 2 IR 800, where the Court found that subsidiary protection was “in effect an open-ended right of residence.”

Ms Justice Bolger considered the decision in AJK and stated that she did not consider it established an open-ended right of residence for a person with subsidiary protection. She stated that the comments of Donnelly J must be read in context of the entire judgement and highlighted that the case did not concern citizenship.

Ms Justice Bolger stated that although the law states that the subsidiary protection permission “shall be renewable”, its renewal is in fact conditional; firstly on the continuation of the circumstances that justified the grant of subsidiary protection in the first place, and secondly on there being no compelling reasons of national security or public order.

The Judge stated:

“The mother’s right to renew her permission to reside in the State via her grant of subsidiary protection… is and always was for a temporally restricted permission of a period less than three years subject to conditions.”

Ms Justice Bolger therefore upheld the decision of the Respondent to refuse the child’s application for an Irish passport.

The full judgement can be found here.

If you or a family member have any queries regarding Citizenship, please do not hesitate to contact us.

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.