Tag Archive for: SUPREME COURT

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

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.

RECENT SUPREME COURT CASE UPHOLDS MINISTER’S REFUSAL TO EXTEND WORKING HOLIDAY VISA

RECENT SUPREME COURT CASE UPHOLDS MINISTER’S REFUSAL TO EXTEND WORKING HOLIDAY VISA

The Supreme Court has recently delivered a judgement in Jaimee Middelkamp v Minister for Justice and Equality and Irish Human Rights and Equality Commission [2023] IESC 2.

 

The case concerned a Canadian woman who was resident in Ireland pursuant to the Working Holiday Authorisation Scheme, which allows participants between the ages of 18 and 35 to travel to the State to study and work for a limited maximum stay of two years. Ms Middelkamp arrived in the State in 2018 under this Scheme.

 

Ms Middelkamp made an application under s.4(7) of the Immigration Act 2004 before the expiry of her permission, seeking an extended entitlement to remain in Ireland. In her application, Ms Middelkamp highlighted that her husband, a Canadian citizen, was to remain resident in the State for two more years to pursue his studies and that she did not wish to separate from him.

 

This application was refused by the Minister in January 2020, citing the interests of public policy and the common good in maintaining the integrity of the immigration system. The Minister’s decision stated that the appellant’s rights to family life under Art.8 ECHR were not affected by this decision.

 

Ms Middelkamp commenced judicial review proceedings seeking to quash the Minister’s decision, arguing that this violated her right to family life under Art.8 ECHR. The High Court granted an order of certiorari quashing the Minister’s decision. This was then appealed to the Supreme Court. The Supreme Court found that Barrett J in the High Court erred in his decision and upheld the decision of the Minister to refuse an extension of Ms Middelkamp’s permission.

 

Hogan J of the Supreme Court found that the Minister’s decision did interfere with Ms Middelkamp’s right to family life under Art.8(1) ECHR, as its effect was to oblige her to separate from her husband for two years. However, he found that this interference was justified as being necessary in a democratic society. Hogan J highlighted that there was a strong public interest in ensuring that the strict terms of the Working Holiday Authorisation Scheme were adhered to, the terms of which Ms Middelkamp expressly agreed to. If the terms of such Schemes were not adhered to, the State’s capacity to operate these limited-time Schemes would be compromised.

 

Hogan J found that the Minister’s decision letter gave sufficiently detailed reasons for the refusal. He found that although the Minister was in error in stating that Ms Middelkamp’s Art.8 ECHR rights were not engaged by the decision, it was implicit in the decision that although these rights were engaged, they did not prevail against broader public policy objectives.

 

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.

Clients of Berkeley Solicitors win their judicial review case before the High Court in N.I. V MJE 2022 / 442 /JR

SUPREME COURT DELIVER JUDGEMENT IN IMPORTANT CASE CONCERNING THE ASSESSMENT OF APPLICATIONS FOR LEAVE TO REMAIN

The Supreme Court have delivered a seminal judgement in the case of MK(Albania) v Minister for Justice v Minister for Justice and Equality [2022] IESC 0000.

 

The Supreme Court have issued five separate judgements in respect of this case.

 

The majority of the Supreme Court, including the Chief Justice ruled not to overturn the judgement of the High Court. The High court had determined in this case that a person “with a non-settled or precarious residential status cannot assert Article 8 rights, unless exceptional circumstances arise. Accordingly, a proportionality assessment does not arise”.

 

There are two dissenting judgements of Ms Justice Baker and Mr Justice Mac Menamin who ruled that they would have quashed the decision under challenge.

 

The case involved a young person from Albania who came to Ireland as a minor at the age of 16. An application for international protection in the State was submitted on his behalf. His applications for refugee status and subsidiary protection were refused. His application for leave to remain in the State was then considered and ultimately refused. The Applicant was thereafter issued with a deportation order requiring him to leave the State and remain outside the State indefinitely. The Applicant has lived in Ireland for six years, has went to school here, reached the age of majority here and lived in foster care in this State.

 

The decision to refuse him leave to remain in Ireland and to issue him with a deportation order found that given the precarious nature of his residence in Ireland, as a failed asylum seeker, Article 8 of the European Convention on Human rights was not engaged in his case.

 

The Supreme Court Justices all held that this was not in fact correct. The Court found that Article 8 ECHR was in fact engaged in the case, however the majority judgement held that in any event if the decision maker had correctly assessed the case in substance. The Court found that it would only be in the most exceptional of cases, with wholly exceptional circumstances, that an infringement of an applicant’s private life rights would outweigh a State’s legitimate aim of protecting the integrity of the immigration system.

 

Chief Justice O’Donnell in his Judgement outlined the key question at issue in this case:

 

how should the question of the impact upon the applicant’s private life of a decision of a refusal of leave to remain and/or removal from Ireland be approached and analysed under Article 8?

 

It is accepted in the Supreme Court judgements that the decision made by the Minister in this case followed the legal tests as outlined a case from the United Kingdom, R (Razgar) v. Secretary of State for the Home Department [2004] UK HL 27, [2004] 2 AC 368   as adopted in this State by the Court of Appeal case of C.I. & Ors. v. The Minister for Justice, Equality & Law Reform [2015] IECA 192, [2015] 3 I.R. 385.

 

Mr Justice O’Donnell confirmed that this was not the correct approach in these cases. The approach in those cases would appear to be that exceptional circumstances need to arise before Article 8 is engaged. The Supreme Court found this to be incorrect, it should have been held that Article 8 is engaged (even if the applicant’s permission is “precarious”) and the decision maker should then have assessed whether the interference with the rights was proportionate to the legitimate aim being pursued. There is no question of the rights protected by Article 8 being breached in this case – the only thing in issue is the manner in which that conclusion should have been reached.

 

The Court did state that in cases of “settled migrants” whose permission in the State could not be deemed precarious, there may be more possibility that an applicant’s Article 8 rights might more readily outweighed by the legitimate interests of the State.

 

Mr Justice O’Donnell held:

 

The point has been reached where I think it should be recognised that it is in the nature of any decision which refuses leave to remain in the country and renders future residence unlawful and perhaps, even more clearly, where the decision is one for forced removal, that such a decision is normally likely to have an impact of such gravity on an individual who has been living lawfully in Ireland for any appreciable time to engage the operation of Article 8. This is so even if that residence is precarious on the basis of a permission that is necessarily temporary and limited and where the decision to refuse leave to remain, or indeed to deport, is no more than the enforcement and application of the limitation of that permission or its termination in accordance with its terms. To that extent, I agree that the applicant’s analysis is correct and, accepting for the moment the Razgar test as a template for the Minister’s decision in this case, the applicant’s case ought to have been assessed under the fifth limb of the test, that is, whether such interference was proportionate to the legitimate public ends sought to be achieved.

 

The Court held clarified that that while accepting the decision is invalid, I would refrain from ordering certiorari, on the grounds that the outcome would inevitably be the same. Instead for the reasons I have tried to set out, I do not consider that the decision of the Minister was invalid.

 

The Court held that there was no obligation on decision makers to assess applications in a particular format and what was important is that rights are “respected and not breached” and in compliance with The European Convention on Human Rights Act, 2003.

 

In Mr Justice Hogan’s judgement the Court addresses the query as to whether the applicant could invoke Constitutional rights in these proceedings, namely Article 40.3 privacy and Article 40.6 associational rights:

 

It follows, therefore, that, based on the NHV analysis, non-nationals enjoy the protections afforded by Article 40.3 and Article 40.6.1.iii (and the other relevant constitutional provisions) in respect of these privacy and associational rights. To that extent, therefore, non-nationals enjoy (in principle, at any rate) a combination of privacy, associational and autonomy-style constitutional rights which correspond to the omnibus description of the right to a private life contained in Article 8 ECHR.

 

The other judgements outline this case was not the appropriate case to consider Constitutional rights as they interact with Article ECHR rights.

 

Ms Justice O’Malley agrees with the majority judgment in her judgement.

 

Mr Justice Mac Menamin in his dissenting judgment respectfully disagrees with the majority and finds that the question of methodology cannot be separated from the substance of the decision.

 

In concluding that he would quash the Minister’s decision Mr Justice Mac Menamin held the decision-making process in this case led to a test which commenced by asking whether Article 8 is engaged, which was answered by considering the gravity of the consequences, rather than whether the privacy and family right actually arose for consideration on the facts.

 

Mr Justice Mac Menamin concludes:

 

There is, at the heart of this appeal, a fundamental question of legal principle concerning rights and remedies. I respectfully, therefore, dissent from the judgment of the majority as to the absence of any remedy. In the first instance, I would have granted the appellant an order of certiorari of the Minister’s orders in this case. But, failing that, I would, alternatively, have granted a declaration that, by virtue of the respondent’s breach of his rights under Articles 8 and 13 of the ECHR, the appellant was entitled to a declaration that the respondent had breached her statutory duty under s.3(1() of the 2003 Act. In my view, such a conclusion must follow from the application of the soundest of all legal principles, that is the protection of the rule of law

 

In her dissenting judgement. Ms Justice Baker concurs with Mr Justice Mac Menamin and finds:

 

“Mac Menamin J. notes, that there are few cases where the interests of a precarious unsettled migrant with a personal family or private life could outweigh the significant interests of the State.”

 

Ms Justice Baker holds that the decision refusing the applicant leave to remain should have been quashed and re assessed by the Minister on the basis that:

 

“That the process be correct, and be seen to have been correctly applied, is not a mere formality…

…

…the essence of administrative law is to ensure that the process followed by an administrative decision maker were correct, not because due process is an end in itself, 4 but because a person who invokes a process is entitled to understand that process, to know that it was properly applied, and as a result to be in a position to know that the decision maker acted lawfully.”

 

This important Judgement will undoubtedly have an impact on how applications for leave to remain are to be considered by the Minister in Ireland from now on. It can no longer be the case that an applicant needs to show exceptional circumstances prior to being entitled to a proportionality assessment of any infringement of their private and family life rights under Article 8 ECHR.

 

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.

 

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

SIGNIFICANT SUPREME COURT DECISION- REFUSAL TO ISSUE IRISH PASSPORT TO MINOR CHILD BORN IN IRELAND

The Supreme Court have delivered a very significant judgement in the case of U.M ( a minor) v Minister for Foreign Affairs and Trade and Ors.

U.M is a minor child, born in Ireland on 1st June 2013. UM’s father is a citizen of Afghanistan, who was granted a declaration of refugee status on 14th July 2006, having arrived in Ireland on 22nd April 2005.

UM’s father in 2012 returned to Afghanistan and returned to the State at a time when his Stamp 4 registration had lapsed. His fingerprints were taken at Dublin airport and were found to match with the identity of another person, who had been refused refugee status in the United Kingdom in 2004.

UM’s father subsequently received a decision from the Minister for Justice revoking his refugee status, on the basis that he had returned to Afghanistan and had not given truthful information in his asylum application. UM’s refugee status was revoked pursuant to the Minister’s powers under the now repealed Section 21(1) of the Refugee Act 1996. Under the International Protection Act 2015 revocation of refugee status must take place where various circumstances arise, the Minister no longer has a discretion as she did have under the 1996 Act. The 2015 Act also confirms the revocation will have prospective effect. UM’s father’s refugee status was revoked with effect from 31st August 2013. UM’s father did not appeal the Minister’s decision.

An Irish passport application was submitted for UM in 2014, a decision was made to refuse this application on 11th June 2014 and a request for a review of this decision, affirmed the initial decision by decision dated 17th November 2014.

This decision was challenged by way of Judicial review proceedings and a declaration was sought from the Courts that UM is an Irish citizen.

Section 12 of the Passport Act 2008 outlines that the Minister shall refuse to issue an Irish passport if the Minister is not satisfied that person is an Irish citizen.

Entitlement to Irish citizenship is in turn governed by the Irish Nationality and Citizenship Act1956 (as amended).

Section 6A of this Act outlines that children born in Ireland to parents who are not Irish or British citizens will be entitled to Irish citizenship at birth only if one or either of their parents have at least three years reckonable residence in the island of Ireland in the four year period prior to their birth. Residence in the State for the purpose of study, for the purpose of seeking asylum or residence that is in breach of Section 5(1) of the Immigration Act 2004 (As amended) is not reckonable for this calculation. By default, all other permissions are reckonable.

Within Section 5(1) of the 2004 Act there are specific types of permission which are excluded from the remit of Section 5, including those persons who have a refugee declaration in place.

UM’s case was lost in the High Court. The Minister for Justice argued that for permission to be reckonable for the purpose of Section 6A, it must be lawful and bona fides residence and not obtained by fraud. The applicant argued that the specific residence permissions excluded from reckonable residence are only those specifically excluded under Section 6B. The Applicant argued that his father’s refugee status was revoked from the date of the decision, and this was in fact stated on the decision and was not void from the outset. The Court acknowledged that there had been no wrongdoing on the part of the applicant, a minor child, but did not grant UM the relief of quashing the refusal decision, nor was the court prepared to make a declaration that UM was an Irish citizen.

The case was appealed to the Court of appeal, who issued their decision on 11th June 2020 The Court of Appeal held that there was a key question in the case- is permission obtained fraudulently reckonable or non-reckonable for the purposes of the 1956 Act? The Court found that it was not permissible for the Minister to add in a requirement not found in the legalisation – that for permission to be reckonable it must be lawful and bona fides. For residence not to be reckonable, it must be specifically excluded in the Act. Therefore the Court of Appeal went on to assess whether UM’s father’s permission within the relevant period was in breach of Section 5(1) of the Immigration Act 2004. The Court of Appeal found that the permission of UM’s father during this period was in breach of Section 5(1)- the Court of Appeal found that the Court must look behind the permission held, to the deceit upon which it was grounded.

UM appealed his case to the Supreme Court. The Supreme Court found that the key question is whether UM’s father’s refugee declaration was “in force” for the relevant period.

UM argued that the revocation of his father’s refugee status had prospective effect, from 31st August 2013, as was stated on the decision itself. UM highlighted that the power to revoke refugee status under Section 21(1) of the Refugee Act 1996 was a discretionary power and the Minister had a discretion as to whether to proceed to revoke MM’s refugee status or not in spite of any potential grounds for revocation. The Minister argued that in the same way a declaration of refugee status has a date, the declaration does not confer the refugee status, only recognises its existence, therefore the revocation decision recognises the refugee status never existed in the first place. The Court of Appeal held that “fraud unravels everything”.

The Irish Human Rights and Equality Commission acted as amicus curiae in the Supreme Court proceedings. They argued that any system resulting in nullification of citizenship should include procedural safeguards and an assessment of the impact of such an action of impacted parties. UM also argued that the Minister was required to carry out a proportionately assessment in relation to the decision that would ultimately result in UM’s loss of citizenship. UM further argued that even if the decision of the Minister to revoke MM’s refugee status was retrospective, this did not make his residence in the relevant period in breach of Section 5(1), as the refugee declaration and the permission (Stamp 4) are separate and distinct from one another.

The Supreme Court agreed with the Court of Appeal, that it was not permissible to add a requirement that residence be lawful and bona fides for it to be reckonable.

In examining whether a decision to revoke refugee status renders the declaration void from the outset, the Supreme Court examined various scenarios and held it is difficult to reach a definitive answer and in fact it would depend on the facts leading to revocation and the timing of those events. The Court found that the Minister has a discretion to revoke and does not have to revoke, would therefore result in a conclusion that in most cases the revocation would be from the date of revocation and not from the date the events occurred.

The Court looks at various scenarios and highlights the difficulty in establishing the legal position for persons who obtain derivative rights through the permissions of others, which were fraudulently obtained. The Court highlights difficulty that flows from situations where there was a finding of nullity resulting in a deprivation of citizenship of those claiming a derivative right to citizenship.

In allowing UM’s appeal The Supreme Court concludes:

To all intents and purposes, the declaration of refugee status was valid and effective for all purposes while it remained unrevoked. If the Minister had decided
not to revoke, as it appears could have been the case having regard to the discretion given to the Minister in s. 21 (1), then, that would have meant that the declaration would have remained in force notwithstanding the circumstances in which it was obtained.
Given the status of the declaration until such time as it was revoked I find it difficult to conclude that in holding the declaration was void
ab initio, as was found by the Court of Appeal. It was valid, binding and of effect until revoked

The Court highlighted the difficult position that arises for persons, particularly children, who derive a right from the existence of a right of their parents and are then a risk of losing that right due to cancellation/ revocation of their parents’ right. The Court commented that even if a permission is void ab initio, as was found not to be the case in this instance, there are further questions as to the rights of those who hold derivate rights.

It may well be that the declaration is void ab initio, but there may be a limit to the consequences of such a conclusion. The Court further notes that …invalidity is a relative and not an absolute concept

This is an extremely important decision and as the Supreme Court itself has recognised –“The acquisition or loss of citizenship is a matter of profound significance for the individual concerned”.

Berkeley Solicitors is of the view that this judgement is likely to have a far reaching impact in relation to decisions made to cancel Irish passports for Irish children, following revocation of their parent or parents’ EU fam residence cards.

SUPREME COURT JUDGEMENT ON FAMILY REUNIFICATION FOR NATURALISED REFUGEES: M.A.M. (SOMALIA) AND K.N. (UZBEKISTAN)

Berkeley Solicitors are delighted to congratulate our client who won her appeal in the Supreme Court today in the joint test cases of – M.A.M. (Somalia) v The Minister for Justice and Equality and K.N. (Uzbekistan) and Others v The Minister for Justice. The judgement of Mr Justice McMenamin was a unanimous judgement of the Supreme Court in favour of the appellants, and was delivered on the 19th June 2020.

The judgement is very significant as it affects not just the individual families taking the appeal, but approximately fifty other applicant families who have cases pending in the High Court holding list awaiting the outcome of this Supreme Court appeal.

The case arose from a challenge to the decision of the Minister for Justice to refuse family reunification to our client’s family members under The Refugee Act of 1996 (as amended). The sole reason for the Minister’s decision was the fact that our client had become an Irish citizen by naturalisation prior to her family reunification application, and the Minister held she was not therefore entitled to the family reunification rights as a refugee.

During the course of the proceedings, the Minister accepted that the Department of Justice had previously interpreted Section 18 of the 1996 Refugee Act to permit naturalised refugees to apply for family reunification for their family members, and this favourable scheme was in operation between 2010 and October 2017. The Minister also accepted that in October 2017, following new legal advices, the Minister commenced a new procedure to preclude naturalised refugees from applying for family reunification. This change in policy resulted in many naturalised refugees being refused family reunification during the period of 2017 and 2018, prior to the commencement of the family reunification provisions of the International Protection Act 2015.

The Minister argued that in order for a person to have rights to family reunification under Section 18 of the 1996 Act, not only must they hold a declaration confirming their refugee status, but they must also be a refugee in line with the definition of a refugee in Section 2 of the Act. As this definition requires a person to be outside their “country of nationality” to be a refugee, the Minister’s argument was that a refugee who becomes naturalised is no longer deemed to be a refugee as they are not outside their country of nationality, when that country becomes Ireland.

The Supreme Court disregarded this argument, holding that there was nothing to suggest in the Act that the appellants’ “country of nationality” had altered from Somalia and Uzbekistan to Ireland, as their well-founded fear of persecution remained  in those countries and not Ireland.

The Supreme Court carried out a detailed statutory interpretation exercise in respect of the 1996 Refugee Act, and highlighted the absurdities that would follow if a refugee with a declaration of refugee status would also have to be “deemed” to be a refugee in order to avail of the important rights of family reunification.

The court stated:

“The consequence of the interpretation urged by the Minister would be to create substantial legislative uncertainty when the purpose of the 1996 Act was to achieve clarity. The case advanced would run counter to the legislative aim of the Oireachtas, which was, by a carefully devised procedure defined in the Act, to identify one definitive “mark” of recognition to persons who were entitled to refugee status in this State, which, in turn, would grant them benefits and entitlements.”

In conclusion, the Supreme Court held as follows:

“This judgement concludes that the fact that the appellants became citizens did not deprive them of the right to apply for family reunification under s.18 of the 1996 Act.”

This is a very welcome decision from the Supreme Court, because it gives certainty to the definition of a refugee and the interpretation of the family reunification provisions in the 1996 Refugee Act.

In effect it means that all the decisions issued by the Minister during the period of 2017 and 2018 to refuse applications for family reunification under the 1996 Act because the sponsors were refugees who had naturalised as Irish citizens, were unlawful.

It also means that the decisions granting family reunification to naturalised refugees during the 2010 to 2017 period are lawful, bringing legal certainty to the status of countless families now settled in Ireland.

We would expect that Minister will now agree to withdraw these previous unlawful decisions refusing family reunification, and reconsider and re determine the applications in line with the Supreme Court’s judgement.

We welcome the clarity that this judgement brings and look forward to working with our clients to have the unlawful family reunification decisions withdrawn and re determined.

The full judgement can be read here.

We are happy to advise further to anyone believes they are affected by this judgement.

Berkeley Solicitors