In December 2004, the Minister announced revised arrangements for processing claims from non-national parents of Irish children for permission to remain in Ireland. A notice setting out details of the scheme was published in January 2005. This notice invited applications for permission to remain in the State from non-national parents of Irish born children before January 1 2005. The arrangements became known as the “IBC 05” Scheme.
In the instant case, the parents of an Irish citizen child applied to the Minister for permission to remain in Ireland pursuant to the Scheme. The child’s mother was granted residency but the father was not because he had not been continually resident in Ireland from the date of the child’s birth. The applicants sought to quash this decision, claiming that refusing his application for failure to meet a requirement of continuous residency without considering the rights, including welfare rights, of the child was in breach of the child’s rights under Articles 40.3 and 41 of the Constitution and was in breach of the State’s obligations under Article 8 of the European Convention on Human Rights and consequently in breach of Section 3 of the European Convention on Human Rights Act 2003.
In granting the relief sought, the High Court held that the Minister’s decision was in breach of the citizen child applicant’s rights under Article 40.3 and under Section 3 of the European Convention on Human Rights Act 2003 and that the applicants were entitled to an order quashing the Minister’s decision refusing the citizen child’s father’s residency application. The Court further stated that there was nothing in any of the documents outlining the terms of the scheme that precluded anyone who was not continuously resident in the State from the date of birth of a citizen child from making an application. The Court stated that the citizen child was central to the scheme and that the Minister was bound to act in a manner consistent with the State’s obligation to defend and vindicate, as far as practicable, the personal rights of the citizen, including the right to live in the State and to be reared and educated with due regard for welfare. The Court stated that these rights are qualified and that the Minister may decide, for good and sufficient reason, in the interests of the common good, that a parent be refused permission to remain, even if this would not be in the best interests of the child, so long as such a decision is not disproportionate to the ends sought to be achieved.
The respondents appealed the High Court’s decision to the Supreme Court, arguing, inter alia, that the High Court had misdirected itself in law and fact. The Supreme Court allowed the appeal, finding that both the application and the High Court were misconceived, that the scheme was established by the Minister exercising executive power, that the requirements of the scheme were set out clearly and included a requirement of continuous residence, that it was not intended that the Minister would consider constitutional or ECHR rights, that there was no interference with any such rights, such rights being appropriately considered under Section 3 of the Immigration Act 1999 and that consequently the High Court’s analysis was premature.
