Tag Archive for: revocation

RECENT REFUSALS OF EMPLOYMENT PERMIT VISAS

DECISIONS TO REVOKE EU FAM RESIDENCE CARDS AND IRISH PASSPORTS POTENTIALLY UNLAWFUL

Two recent judgements of the Superior Courts have called into question the legality of all decisions made by the Minister for Justice in retrospectively revoking EU Fam residence cards, immigration permissions, Irish passports and declarations of refugee status.

 

Please see our previous blog articles on the Supreme Court judgement in U.M ( a minor) v Minister for Foreign Affairs and Trade and Ors [2022] IESC 25,  and the High Court judgement in AKS v the Minister for Justice [2023] IEHC 1.

 

If you have received a decision to revoke your EU Fam residence card on the basis that it was never valid or that it was cancelled with effect from a date in the past or have had your application for Irish citizenship deemed ineligible on the basis of revocation of your EU residence card, these decisions may be unlawful.

 

If a child previously held an Irish passport that was cancelled by the Passport Office as a result of revocation of their parents EU Fam residence card or permission to reside in the State, it is also possible that the decision is unlawful.

 

It is important to seek legal advice if these judgements are relevant to your case.

 

Please do not hesitate to contact Berkeley Solicitors if you have been impacted by these important issues.

 

HIGH COURT DECISION RELATING TO REVOCATION OF AN EU RESIDENCE CARD AND THE IRISH PASSPORT OF MINOR CHILD

HIGH COURT DECISION RELATING TO REVOCATION OF AN EU RESIDENCE CARD AND THE IRISH PASSPORT OF MINOR CHILD

HIGH COURT DECISION RELATING TO REVOCATION OF AN EU RESIDENCE CARD AND THE IRISH PASSPORT OF MINOR CHILD

Ms Justice Phelan of the High Court has delivered judgement in the case of AKS v the Minister for Justice [2023] IEHC 1, which addresses the impact of the Supreme Court judgement U.M ( a minor) v Minister for Foreign Affairs and Trade and Ors [2022] IESC 25.

The facts in the AKS case arise from the decision of the Minister to revoke a permanent residence card to the parent of an Irish citizen child on the basis of an allegation of fraud. The decision of the Minister was to find that the EU Fam Residence card was revoked in its entirety on the basis of fraudulent conduct. It was submitted by the Applicants in this case that the 2015 Regulations do not permit retrospective revocation and furthermore that a revocation of an EU Fam residence card to the parent of an Irish citizen child, does not impact that child’s right to Irish citizenship. The Applicants also argued that the review process under the 2015 Regulations does not sufficiently meet the procedural safeguards and protections required by Directive 2004/38/EC.

In following the Supreme Court judgement UM, which arose in the context of revocation of refugee status of a parent rather than an EU Fam residence card, Ms Justice Phelan held that “Neither the 1956 Act nor any other law identified to me or by me provides for the denationalisation of a citizen by birth.”

Judge Phelan further confirmed that The 2015 Regulations make no provision for the acquisition or loss of citizenship and that the 2015 Regulations, properly construed, do not provide for a power to retrospectively nullify vested citizenship rights of a non-party child,  

Judge Phelan held:

Neither Regulation 27 or 28 of the 2015 Regulations provide in express terms for a retrospective nullification of permissions which have issued on foot of false or misleading information or by reason of a marriage of convenience. Indeed the provisions of Regulations 27 and 28 are couched in the present tense both as regards a permission which “is being relied upon” and a marriage which “is” a marriage of convenience (as opposed to a post-divorce situation where reference would be made to the marriage in the past tense). It is also clear that the Regulations do not mandate the revocation of a permission that “is being relied” upon but they empower revocation by providing for a discretion (“may”) to revoke. This is in contrast with the language used in the 2006 Regulations where revocation was mandatory.

In contrasting the facts of UM and AKS, Ms Phelan concluded that in both contexts the relevant legislation did not envisage retrospective revocation where derived rights are impacted:

It seems to me that the starting point should be that the principle of prospective operation of legislation and legislative provisions should apply when interpreting the provisions of the 2015 Regulations and that it is appropriate to approach those Regulations on the basis that they are not to be presumed to permit retrospective alteration of the legal nature of past conduct and events affecting an acquired status unless clear words are used, mindful of course that the 2015 Regulations, as transposing Regulations, also require to be interpreted in a manner which gives effect to the Directive. It is clear from UM that the concept of retrospective nullification affecting acquired status while not outlawed in theory is considered by the Supreme Court to be generally unsuited to the public law context, and particularly unsuited to addressing historic immigration status and derived rights and requires a clear legal basis. 

In relation to the Minister’s power to revoke the residence permission of the applicant, with the impact of the revocation only impacting his own position, and not the position of his minor child, the Court concluded:

Contrary to the First Respondent’s asserted understanding of her powers, it does not follow from a finding of fraud or marriage of convenience that a residence permission will be automatically revoked. While it is an open question as to whether the First Respondent had been vested with a power to retrospectively revoke the Second Applicant’s EU residence rights, it is nonetheless clear that any power was discretionary and therefore fell to be exercised in a proportionate manner having due regard to affected rights and interests.

If you have been impacted by these important issues, Please contact Berkeley Solicitors for advices.

REVOCATION OF IRISH CITIZENSHIP – IRISH SUPREME COURT DECLARES SECTIONS OF THE IRISH NATIONALITY AND CITIZENSHIP ACT ARE UNCONSTITUTIONAL FOLLOWING JUDGEMENT IN DAMACHE V MINISTER FOR JUSTICE

On 14th October 2020, the Supreme Court found that the system in place for the revocation of Irish citizenship by way of naturalisation, as set out in section 19 of the Irish Nationality and Citizenship Act 1956, was unconstitutional.

Under the provisions of Section 19 the Minister for Justice is required to notify a person that she intends to revoke their certificate of naturalisation. The affected person can then apply for an inquiry as to the reasons for revocation, and this application is referred to an independent committee of inquiry appointed by the Minister.

The Supreme Court held that this process does not meet the high standards of natural justice applicable to a person facing the severe consequence of losing their Irish citizenship. Central to this decision was the fact that the Minister for Justice is not bound by the findings of the independent committee, and that there is no right of appeal from the Minister’s decision.

Ultimately, the revocation process under Section 19 resulted in a situation where the same person who initiated the revocation process (the Minister), and whose representatives make the case for revocation before the committee, also makes the final decision to revoke.

The Supreme Court therefore found that Section 19 of the 1956 Act was unconstitutional. However, it deferred making its final orders until it had heard further submissions from the parties and the Irish Human Rights and Equality Commission, who acted as amicus curiae in the proceedings, as to whether any aspects of Section 19 should be upheld, or whether Section 19 should be struck down in its entirety.

The Supreme Court heard these additional submissions on 21st January 2021.

On Wednesday 10th February 2021, the Court granted declarations that Sections 19(2) and 19(3) be struck down in their entirety but found that it was not necessary to strike down section 19(1), which contains the ministerial power to revoke and the grounds for such revocation.

As a result of these declarations, new statutory provisions for the revocation of certificates of naturalisation will have to be implemented. Until this occurs, the Minister for Justice cannot exercise her statutory power to revoke a certificate of naturalisation.

As reported by the Irish Times, Ms Justice Dunne said it is “inconceivable” that the Minister for Justice could revoke a grant of citizenship until a new process is in place with safeguards to meet natural justice requirements.

The full judgement of the Supreme Court can be read here (https://www.courts.ie/acc/alfresco/9f6e2c6d-eb77-4c9f-ad57-fffe7ffc65f6/2020_IESC_63.pdf/pdf) and the Irish Times article can be read here (https://www.irishtimes.com/news/crime-and-law/courts/supreme-court/supreme-court-ruling-to-require-new-rules-for-revoking-citizenship-1.4481073)

Berkeley Solicitors will post further updates on the ever-evolving law surrounding revocation of Irish citizenship as it become available.

If you or a family member have queries about the naturalisation process, please contact our office.