Court says State action in passport case 'dispiriting'

A Supreme Court judge has descibed as "dispiriting" the way in which the State conducted legal action at public expense unsuccessfully trying to defend the "wrong-headed" refusal of an Irish passport and citizenship to a child born here to Nigerian parents.

The refusal was based on an "extraordinary form of group-think" in the public service resulting in the Department of Justice ignoring its own "obvious acknowledgement" the four-year-old boy's father was given permission by the Minister to remain here on a date which entitled the child to citizenship, Mr Justice Adrian Hardiman said.

"I simply do not understand why so great an effort has been made over so long a period to deprive a small boy of citizenship in the country where he has been permitted reside all his life, a citizenship enjoyed by his father and his sister. If there is a point to the pain and anxiety caused to the child's family, the expense to which they have been put and the taxpayers money which has been spent, it entirely eludes me."

The child's application was refused "on grounds so threadbare" and on foot of a administrative decision "not merely wrong but wrong headed" and "flying in the face of the ordinary meaning of words and numbers, especially dates", he said. The decision "was justified by a bewildering display of unembarrassed casuistry", he added.

In his separate judgment, Mr Justice Donal O'Donnell said some arguments advanced to justify the Minister's decision would, if correct, create "an entirely undesirable state of confusion".

Arguments in the High Court justifying the Minister's refusal had led to "some strange conclusions", he said. In the Supreme Court, counsel for the Minister was then "forced to argue the word permission had two different meanings, not only in the same section of the relevant law, but in the same sentence".

The substantial costs of the High and Supreme Court cases were awarded against the Minister for Justice by the five judge court today after it unanimously dismissed his appeal against the High Court judgment overturning his refusal.

The appeal arose from the Minister's decision in October 2009 refusing a certificate of Irish nationality to Faisol Oulwanifemi Sulaimon, born here on August 24th 2008 to a Nigerian couple. In October 2008, when the child was three months old, the Department of Foreign Affairs refused him an Irish passport on foot of what the courts found was a mistaken view of the law, the same view later argued by the Department of Justice.

The child lives with his father, since estranged from the child's mother, in Tyrellstown, Dublin. His entitlement to Irish citizenship depended whether his father was lawfully resident here - resident with the permission of the Minister for Justice - for three of the four years immediately before his birth.

Under the relevant law, the father had to be lawfully resident for 1,095 days but the Department of Justice and Department of Foreign Affairs caclulated he was lawfully resident for 1,092 days based on their view the date of "reckonable residency" began, not when his father got a letter saying the Minister had granted him permission, but when the father's passport was stamped by an immigration officer and he was registered under the Irish Nationality and Citizenship Act.

The father, who came here in 2001, claimed he was lawfully resident from at least July 7th 2005, the date of a letter to him from the Department of Justice stating the Minister had granted him permission to remain in the State "for two years until 07/07/07". In 2007, the father secured further permisson to remain up to August 2008 which it was argued brought him over the 1,095 days.

The Minister argued, based on the Department of Foreign Affairs' view on "reckonable residency", he was only lawfully resident from July 22nd 2005 which brought him to 1,092 days.

Both the High Court and Supreme Courts ruled the relevant law was Section 5 of the Immigration Act which requires one of the child's parents to be resident in the State on foot of "a permission given under this Act after such passing, by or on behalf of the Minister".

Mr Justice Hardiman said it was remarkable the Minister had effectively argued the power to grant permission to remain was vested in an immigration officer to the exclusion of himself as Minister.

He was concerned the Minister had maintained a particular thing was done only on July 22nd 2005 even though correspondence from his Department, and a 2007 inter departmental record, made it "quite clear" the relevant thing was done on July 7th 2005.

He was also concerned the Minister defended the case without contradicting the child's evidence or putting forward any evidence of his own but on the basis of successive and inconsisent hypotheses as to how the Minuster may have thought or acted at different states of a bureaucratic procedure.

This "inadmissible manner" in which to conduct litigation had led to the advancing of "highly contrived and artifical arguments", such as have brought other areas of the law into disrepute, he said. "It is dispiriting to see State litigation conducted in this way at public expense."