Facts
The applicant was a minor and his father applied for an Irish passport on his behalf. This application was made pursuant to Section 6A of the Irish Nationality and Citizenship Act 1956 (as amended) which provides that: “A person born in the island of Ireland shall not be entitled to be an Irish citizen unless a parent of that person has, during the period of four years immediately preceding the person’s birth, been resident in the island of Ireland for a period of not less than three years or periods the aggregate of which is not less than three years.”
The application was based on the father’s period of five years lawful residence in the State. In the first letter informing him that the Minister had decided to grant him permission to reside in the State dated 7 July 2005, it stated that this permission was for a period of two years from the date of the letter, ending on 7 July 2007. In the second letter it stated that the permission was for a further three years, ending on 7 July 2010. In each letter the applicant’s father was informed that he was obliged to attend at the Garda National Immigration Bureau in order to have his permission registered and his passport stamped and that the permission only took effect as and from that date. He did so on each occasion a short period of time after receipt of the letters.
At the time of the application for an Irish passport on his son’s behalf, the Department of Foreign Affairs and the Department of Justice calculated (from the date of the stamps in the passport and not from the dates of the Minister’s letters) that the applicant’s father fell three days short of the requisite period for his son, the applicant, to be entitled to an Irish passport.
Reasoning
The period of residence referred to in Section 6A must be lawful residence and Section 6B(4) provides that a period of residence shall not be reckonable for the purposes of calculating residence under Section 6A if it is in contravention of Section 5 (1) of the Immigration Act 2004. Section 5 provides that: “No non-national may be in the State other than in accordance with the terms of any permission given to him or her before the passing of this Act, or a permission given under this Act after such passing, by or on behalf of the Minister.” Section 4 of the 2004 Act provides that “…an immigration officer may, on behalf of the Minister, give to a non-national a document, or place on his or her passport… an inscription, authorising the non-national to land or be in the State…” and is referred to in the Act as a “permission”.
In interpreting the meaning of the provisions in particular Section 4 and Section 5 of the Immigration Act 2004, O’Donnell J. (with whom the other members of the Court agreed) held that the Act clearly contemplated that at least two permissions may be given under the Act, one by the Minister and another granted by an immigration officer on behalf of the Minister. It followed that the Act contemplated a separate power in the Minister to grant the permission contained in the letters to the applicant’s father, other than through the agency of the immigration officer.
Section 5 only required that a person be in the State with the permission of the Minister and O’Donnell J. held that the word “permission” in Section 5 did not have a special meaning derived from Section 4 but was used in a more general and ordinary sense. That the word “permission” should be interpreted in accordance with Section 4 meant no more than saying that a ministerial permission shall be of the same nature as the permission granted under Section 4.
The Act, O’Donnell J. said, does not provide any details about the grant of a ministerial permission and does not set out any procedure for either an application for such permission or the manner in which it is to be approached. Further, the structure of the Act conceived that a permission was separate and distinct from the requirement to register under Section 9 of the Act. Such registration is required of all non-nationals who have already been granted permission to be in the State. He held that the Act, properly construed, recognised that the Minister may grant permission, and does not prescribe any particular formality for such permission.
Decision
The Court held that, calculating the applicant’s father’s permission to be in the State ie his lawful residence, as and from the date of the Minister’s letters, he met the criteria as to the period of lawful residence required in order for his son to be entitled to an Irish passport as an Irish citizen.
