UM v the Minister for Foreign Affairs & anor


M v the Minister for Foreign Affairs & anor
Respondent/Defendant:The Minister for Foreign Affairs and Passport Appeals Officer David Barry
Court/s:Supreme Court
Citation/s:[2022] IESC 25
Nature of Proceedings:Appeal
Judgment Date/s:02 Jun 2022
Judge: Dunne E.
Category:Citizenship, Citizenship (Loss of), Refugee Law
Keywords:Citizenship, Citizenship (Acquisition of), Citizenship (Loss of), Dependant, Family Member, Refugee, Refugee Status (Withdrawal of)
Country of Origin:Afghanistan

Facts: UM was born in Galway in June 2013. His father, MM, an Afghan national, was declared a refugee in in Ireland in 2006. In June 2013, MM was informed by the Department of Justice of an intention to revoke his refugee status on grounds including that he had returned to Afghanistan and stayed there for two months and that he falsely stated he had never applied for asylum elsewhere.

Later, in February 2014, an application was submitted for an Irish passport for UM based on his father’s reckonable residence as a refugee. The Minister for Foreign and Affairs and Trade informed UM that he intended to refuse his application as he was not satisfied UM was an Irish citizen because MM’s refugee status had been revoked. A review was requested, and the initial decision was affirmed. UM subsequently commenced judicial review proceedings challenging this decision. After the institution of the proceedings, UM and his mother were declared refugees and MM was permitted to remain based on a successful family reunification application. The High Court and the Court of Appeal both refused to grant the relief sought. The appellant was granted leave to appeal to the Supreme Court. The Irish Human Rights and Equality Commission (IHREC) was added to the proceedings as an amicus curiae.

Reasoning: The Supreme Court, with reference to Damache v. Minister for Justice and Equality and others [2020] IESC 63, recognised that the acquisition or loss of citizenship is a matter of profound significance for an individual and an important aspect of their status.

Central to the case is the acquisition of citizenship by birth. Under section 6(1) of the Irish Nationality and Citizenship Act 1956 every person born on the island of Ireland is entitled to Irish citizenship. However, section 6A limits the entitlement to citizenship of a child of non-citizen parents to require that at least one parent has reckonable residence on the island of Ireland for three of the four years immediately preceding the birth. The definition of residence is clarified under section 6B(4)(a), which provides that a period of residence shall not be reckonable if it is in contravention of section 5(1) of the Immigration Act, 2004, which in turn provides that a non-national cannot be in the State other than in accordance with the terms of a permission given to them by the Minister. Section 5(2) of the 2004 Act provides that a person in the State in contravention of section 5(1) is “for all purposes unlawfully present in the State”. However, the requirements and provisions of section 5 are expressly stated to not apply to a refugee who is the holder of a declaration “which is in force”.

Revocation of refugee status is provided for in section 21, Refugee Act 1996. A key question in deciding whether, on the date of UM’s birth, his father had the necessarily reckonable residence concerned whether the revocation of his refugee status operated retrospectively. In examining this issue, Dunne J. stated that a change in the circumstances of a person does not mean that they were never a refugee and that it would be inappropriate to suggest that such a person’s status is revoked with effect from the date of return to that country. Revocation could only take effect from the date on which the Minister actually made a formal decision to revoke the declaration. Dunne J. disagreed with the reasoning used by the Court of Appeal, which found that a fraudulently obtained permission is a nullity and that revocation of a refugee status declaration operates to invalidate that declaration ab initio. Dunne J. held that the grounds for revocation of refugee status under section 21(1)(a) to 21(1)(h) of the 1996 Act could operate only from the date of the formal revocation and would be prospective. This conclusion was reinforced by the discretion given to the Minister in this section. Thus, in contrast to the finding of the Court of Appeal, the Supreme Court held that revocation did not operate as a matter of law to render MM’s status void ab initio as the Minister could refuse to revoke, if he or she thought it was unnecessary to do so.

O’Donnell C.J., in a concurring judgment, examined issues of statutory interpretation, stating that absent clear language to the contrary, statutes could not retrospectively change the legal nature of past conduct. Moreover, he found that revocation under section 21(1)(h) of the 1996 Act took effect at the date of revocation and did not relate back to the facts leading to the revocation.

Decision: In the context of the Minister having discretion to revoke refugee status, it was found that the Minister could consider the impact of a revocation decision on those persons with derivative rights, such as UM. In combination with the language used under section 5 of the 2004 Act, it was held that while a declaration of refugee status is in force and until it is revoked, it must be regarded as being valid.

Principles:Revocation of refugee status has prospective effect. A residence status conferred by the State on a parent based on false or misleading information could, under the terms of the relevant legislation, be included for the calculation of the period required to confer an entitlement of citizenship to their child.
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