Parents were wrongly refused leave to stay

The High Court has found that the Minister for Justice unlawfully breached the rights of several Irish-born children in the way he refused their non-national parents' applications to remain here.

The decision relates only to non-national parents of children born before January 1st, 2005.

The Department of Justice is to appeal the High Court ruling.

In judgments on eight test cases yesterday, Ms Justice Mary Finlay Geoghegan noted that when determining the applications by the parents of the children in question, no consideration was given by or on behalf of the Minister to the position or rights of the Irish-born children.

The refusal of the parents' applications to remain, without any consideration of the rights, including welfare, of the Irish citizen children, was unlawful as it breached such children's rights under the Constitution, she ruled.

She also found that making such decisions without considering the private rights of the Irish citizen children - in the sense of personal and social relationships which resulted from living here - was also unlawful as it was inconsistent with the State's obligations under the European Convention on Human Rights and breached those obligations under the European Convention on Human Rights Act 2003.

An estimated 1,120 people have had applications refused under the IBC05 (Irish Born Child 2005) scheme, a revised arrangement for processing claims to remain here on the basis of having a child born here before January 1st, 2005, when citizenship arrangements were altered.

The scheme was introduced by the Minister in early 2005 and, up to January last, a total of 16,693 persons have been permitted leave to remain here under it.

Of those refused, most were refused on the basis that continuous residency here since the birth of the applicant's Irish-born child was not proven.

In her judgments yesterday, Ms Justice Finlay Geoghegan said that when the Minister established the IBC05 scheme and when he received applications under it, he was bound to consider and decide those applications in a manner consistent with the State's guarantee to defend and vindicate the personal rights of the citizen child, including the right to live in the State and to be reared and educated.

Having found that the Minister had breached the rights of several Irish-born children under both the Constitution and the European Convention on Human Rights Act in how he considered their parents' applications for leave to remain here under IBC05, the judge quashed the Minister's refusals in all but one case.

(That latter case involved an application from a Nigerian woman who was outside the State at the time of making her application and in relation to whom a deportation order had already been made.)

The judge held there was nothing in the relevant documents relating to IBC05 that implied that the revised scheme did not apply to a person who was not continuously resident here with their Irish-born child since the date of birth.

Persons who were not in continuous residency could not be automatically excluded and the length of absence and reasons for absence were relevant.

She also noted that while it was asserted on behalf of the Minister that the requirement for continuous residency was uniformly applied, there was no denial of a solicitor's claim that it was not applied in the case of his client.

She said that in a number of the cases before her, the parents of the children were living in the State when they made their applications but were doing so in a "limbo" position, in that they had no right to be here as an individual and, most particularly, were not permitted to work.

This had obvious consequences for their ability to provide for their citizen children.