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NA (Somalia) and UM (Afghanistan) v Minister for Justice and Equality

Respondent/Defendant: Minister for Justice and Equality
Nature of Proceedings: Judicial Review
Court/s: High Court
Judgment Date/s: 10 November 2017
Judge: Steward C.
Category:Citizenship, Refugee
Keywords:Citizenship; Citizenship (Loss of); Refugee Status (Withdrawal of);
Country of Origin: Somalia/Afghanistan
URL: http://courts.ie/Judgments.nsf/0/46888A5E86BAA6FA8025820500440DF5
Geographical Focus:Other

Facts:

In the first case, the first named applicant, a Somali national, arrived in the State in 2004. She married another Somali national and was granted residence permission based on his refugee status, which he acquired in June 2008. His refugee status was revoked in October 2011 under s.21(1)h of the Refugee Act 1996, on grounds that the information provided by him to the decision-maker in his case had been materially false or misleading. The second named applicant was born nine months after his father was recognised as a refugee. The father had resided in Ireland for an aggregate three of the previous four years. This enabled the second named applicant to qualify for Irish citizenship from birth within the meaning of s.6(6)(a)(iii) of the Irish Citizenship and Nationality Act 1956. An Irish passport was issued to the second-named applicant in 2010. 

By decision dated 15 June 2015 the Minister for Justice determined that the second named applicant was not an Irish citizen because the basis on which citizenship rights had been vested (his father’s refugee status) was now void. The Minister for Justice found that this operated ab initio and that the second named applicant had no entitlement to citizenship rights as a result. 

The facts in the second case were broadly similar to those in the first case. The applicant’s father, an Afghan national, was granted refugee status on 14 July 2006. A family reunification application was granted on 26 June 2012, allowing the applicant’s mother to travel to the State. The applicant was born on 1 June 2013. The father’s refugee status was revoked on 10 June 2013. This revocation was notified to take effect from 31 August 2013. This step was taken on similar grounds to those in the first case. On 17 November 2014, the Minister for Foreign Affairs and Trade refused an application made on behalf the applicant for an Irish passport. On 21 January 2015, this refusal was affirmed on appeal on similar grounds to those in the first case.

The applicants relied on Art.9 of the Constitution and ss.19 and 28 of the 1956 Act. It was submitted that no construction of these provisions granted the State the power to strip citizenship that had been acquired at birth until the Oireachtas legislated for it, which it had not. They suggested that this legislative gap had been maintained for policy reasons, namely that the normal motivators for the stripping of citizenship (fraud or misrepresentation by the candidate) cannot be performed by a child.

Reasoning: 

Stewart J. accepted the Minister’s submission that many of the applicants’ submissions were incorrectly predicated on the assumption that the applicants are entitled to Irish citizenship upon birth. It was held that the applicants were never entitled to Irish citizenship by birth on the facts or by law. Stewart J. noted that there is a duty placed upon non-nationals who are seeking to travel to or obtain any form of permission to remain or reside in this State to act with good faith and honesty in their dealings with the immigration and protection authorities. A failure to engage honestly may have the consequence of the permission being revoked or indeed the person disentitling themselves from seeking reliefs before the courts, citing the decisions of MacMenamin J. in AGAO v Minister for Justice, Equality and Law Reform [2007] 2 I.R. 492 and Birmingham J. in GO v Minister for Justice, Equality and Law Reform [2008] IEHC 190.

Stewart J. held that in order to be entitled to acquire Irish citizenship under the Irish Nationality and Citizenship Act 1956 (as amended), the residence upon which such an application is based must be lawful in the sense of being both bona fide and regular residence before it can give rise to such derivative citizenship rights. Thus, it was held that residence that has been obtained or was based upon fraud, misrepresentation or deceit cannot amount to residence within the meaning of Part 2 of Irish Nationality and Citizenship Act 1956 (as amended). The court noted that Part 2 of the 1956 Act governs the entitlement to citizenship for persons born in the State to certain non-nationals, and that Irish citizens are entitled to rights and privileges. Citizenship was described as a privilege, which is bestowed upon non-nationals who are not entitled to citizenship by birth on behalf of the people. Stewart J. was satisfied that the acquisition of that citizenship must be lawful and bona fide and rejected the proposition that the acquisition of citizenship that had been acquired effectively through the deceit of the applicant minors’ fathers could have the effect of conferring citizenship by birth upon the applicants. The court held that this would fly in the face of both of the constitutional provisions, the statutory provisions and the established authorities cited in the submissions and referred to by the court. 

Stewart J. accepted that the applicants at the heart of these two sets of proceedings were entirely without blame, and that neither of them were responsible in any way for the actions of their fathers and the manner in which their fathers dealt with the asylum and immigration authorities at an earlier juncture. But despite any sympathy which the court felt towards the minor applicants, it was noted that the court must decide this application based on the legal principles that apply. The situation was that the mere fact of being born on the island of Ireland, its islands or seas no longer carried with it a right to citizenship by birth. Instead, in certain circumstances, a person born to parents who were not nationals of this jurisdiction had an entitlement pursuant to statute to acquire Irish citizenship once certain legal criteria have been fulfilled. The court held that citizenship must be acquired in accordance with law and through lawful means. This meant that the acquisition of such rights and any associated derivative third party rights must also occur through lawful means. Although the minor applicants concerned in these proceedings were themselves not the perpetrators of any wrongdoing, nevertheless the unfortunate consequence of the unlawful actions of their respective fathers was that each of them was not entitled to Irish citizenship and/or an Irish passport on foot of their fathers unlawfully-obtained declaration of refugee status. 

The court was satisfied that the effect of the revocation of the grant of refugee status to both of the applicants’ fathers had the effect of rendering that grant void ab initio. It also had the legally unavoidable effect of rendering the grant of citizenship null and void. Therefore, it was held that the Minister for Justice in the first set of proceedings was correct in holding that child was not an Irish citizen because of their determination that the revocation of the father’s refugee status had an effect of rendering it void ab initio. Similarly, in relation to the second applicant, it was held that the Department of Foreign Affairs was correct in refusing to renew or issue a further passport for the applicant on the basis that his father’s refugee status had been revoked, was void ab initio and had the effect of negativing the grant of citizenship that had been unlawfully and erroneously granted and assigned to the applicant on foot of that unlawfully obtained declaration of refugee status. Accordingly, the applicants’ applications were refused.

Decision:

Application dismissed.

Principles:

Revocation of a person’s grant of refugee status on the basis of false and misleading information had the effect of rendering that grant void ab initio. It also had the legally unavoidable effect of rendering the grant of Irish citizenship to the children of such persons null and void.[2017] IEHC 741


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