Court says State action in passport case 'dispiriting'

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."