Facts: The applicant was a child who was born in Ireland and whose mother held subsidiary protection status in the State. The child’s mother applied for an Irish passport for the child relying on section 6A(2)(d)(i) of the Irish Nationality and Citizenship Act 1956.
Section 6A(1) of the 1956 Act provides that a person who was born in Ireland shall not be entitled to citizenship unless their parent has, during the four years immediately preceding their birth, been resident for a period of at least three years. However, section 6A(2)(d)(i) provides that this does not apply to a child born in Ireland who has at least one parent who was resident at the time of their birth and who was entitled to reside ‘without any restriction’ on their period of residence.
The passport application made for the child under section 6A(2)(d)(i) was refused. It was stated that the provision did not apply to a person with subsidiary protection as they were not entitled to reside without any restriction on their period of residence. The applicant sought judicial review of this decision in the High Court. They submitted that under section 54, International Protection Act 2015, a qualified person – defined as a refugee or a subsidiary protection holder – shall be given a permission to reside in the State for a specified period of not less than three years, and this ‘shall be renewable’ unless there are compelling reasons related to national security or public order not to do so or where the person ceases to be a subsidiary protection holder. It was argued that the mandatory nature of the language ‘shall’, subject to limited conditions, indicates that the period of residence foreseen in legislation is unlimited.
Reasoning: In the High Court, Bolger J. distinguished the instant case from that of AJK v The Minister for Defence [2020], which concerned a subsidiary protection holder who wanted to join the defence forces. In that case, it was found that subsidiary protection status is effectively an open-ended right of residence. However, AJK did not concern citizenship, with Bolger J recalling that citizenship is a status of enormous importance. In this regard, it was found that AJK did not establish an open-ended right of residence for subsidiary protection holders.
With regard to section 54, International Protection Act 2015, Bolger J set out how the reference to the issuance and renewal of a permission in this section uses the term ‘permission’ in the singular and that the issuance of the permission is subject to two possibilities, firstly, the requirement of compelling reasons of national security or public order, or, secondly, the cessation of the person’s status as a holder of subsidiary protection. Thus, it was held that the child’s mother’s permission was temporally restricted and the child was not eligible to citizenship under section 6A(2)(d)(i).
Decision: The High Court found that the applicant’s mother’s right to reside in the State was temporally restricted and therefore that the child was not eligible to apply for citizenship pursuant to s. 6A (2)(d)(i), Irish Citizenship and Nationality Act 1956. The decision to refuse the passport application was therefore upheld.
