The Supreme Court has overturned a finding that the Irish citizenship of a child born in the State to an Afghan father, who gave false information on a refugee application, should be revoked.
The father arrived here in 2005 and was granted refugee status in 2006. The child, whose Afghan mother came to Ireland in 2012 on the basis of family reunification, was born on June 1st, 2013.
During this time, the father had travelled back to Afghanistan in September 2012 for two months. On his return, immigration officials at Dublin Airport discovered that his fingerprints matched those of a man who had been refused asylum in the UK in 2005, a year before he first came to Ireland. The father’s refugee status was revoked with effect from August 31st, 2013.
When an application was made in February 2014 for an Irish passport for the child, it was refused on the basis of the father’s previously fraudulent application for refugee status. The family continued to live in Ireland because the mother was granted refugee status in 2015, as was the child. The father has also been granted permission to remain in the State on the basis of family reunification.
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The child, through his father, brought judicial review proceedings challenging the passport refusal.
The Minister for Foreign Affairs and Trade and the Passport Appeals Officer were respondents, with the Irish Human Rights and Equality Commission joined as an amicus curiae (friend of the court). The respondents opposed the action.
The High Court refused to quash the passport refusal decision. That was appealed to the Court of Appeal (CoA), which found that permission to remain in the State that was procured through false and misleading representations was not a declaration that was “in force”.
It was therefore not reckonable for the purposes of deciding on citizenship under section 6A of the Nationality and Citizenship Act 1956.
The CoA relied on the principle that “fraud unravels everything” and no benefit could therefore flow from the father’s refugee status which should never have been granted.
The father was granted a further appeal to the Supreme Court which, on Thursday, in a unanimous decision of the five judges, overturned the CoA finding.
Giving the main judgment, Ms Justice Elizabeth Dunne said, among other things, it was difficult on the face of it to argue with the CoA’s conclusion that by providing false and misleading information it would appear that the declaration of the father’s refugee status was void from the beginning.
Discretion
However, she said, in order to reach that conclusion, it was necessary to ignore the fact that the Minister has discretion about whether or not she will revoke the refugee status and is only required to do so when it is considered appropriate.
Such discretion would have enabled the Minister, in an appropriate case, to consider the effect of a decision to revoke on those who “would appear to have obtained derivative rights prior to the revocation”.
Taking that language into consideration, as well as the language used in the 2004 Immigration Act regulating the presence of foreign nationals in the State, it seemed to the judge that while a declaration of refugee status is in force, and until such time as it is revoked, it must be regarded as valid.
“I simply cannot accept the view that the effect of the revocation in such circumstances is to render the declaration void ab initio [from the beginning],” she said.
In a concurring judgment, Chief Justice Donal O’Donnell said that in the absence of clear language to the contrary, statutes could not retrospectively change the legal nature of past conduct.
The revocation of refugee status took effect from the date of revocation and did not relate back to the facts leading to the revocation, he said.