Supreme Court reverses residency decision

Ruling overturned:The Supreme Court has unanimously overturned a High Court decision that the Minister for Justice unlawfully breached the rights of several Irish-born children in the way in which he refused their foreign national parents' applications to remain here under a once-off and "generous" scheme.

The five-judge court, in a decision with implications for hundreds of cases, ruled yesterday the challenge to the Minister's actions was "misconceived" and that the Minister had acted correctly. It also said the constitutional and European convention rights of the foreign national parents and their children remained unaltered by its decision.

The proceedings arose from the introduction by the Minister on January 15th, 2005, of the Irish Born Child scheme (IBC05), a revised arrangement for processing claims to remain here on the basis of having a child born here before January 1st, 2005.

The scheme followed the introduction of new laws on citizenship arising from a Supreme Court ruling that a foreign national parent of an Irish-born child had no automatic entitlement to remain here with the child.

The closing date for applications under the scheme was March 31st, 2005. Of 17,917 applications received, 16,693 persons were granted leave to remain and 1,119 were refused.

In November 2006, in a number of test cases, the High Court overturned the Minister's decision refusing permission to remain on grounds the Minister was required, but had failed, to consider the constitutional and convention rights of the Irish-born children prior to making that decision.

Giving the judgment yesterday allowing the Minister's appeal against that decision, Ms Justice Susan Denham said the cases involved the fundamental power of a State to control entry and exit of foreign nationals. It was long recognised here that executive power was exercised here by the Minister for Justice.

She said the IBC05 scheme was an example of the State exercising its discretion to allow specific foreign nationals to reside here, but the foreign nationals still retained all rights under the formal procedures.

The Minister was not required to consider the rights of their children when considering the parents' applications to remain here under the scheme, she said.

The IBC05 scheme was established by the Minister, exercising executive power, to deal administratively with "a unique group of foreign nationals in a generous manner, on general principles".

In the main appeal before the court, Folajimi Bode had applied to stay here under IBC05 and was refused on grounds continuous residency was not proven.