The High Court quashed the refusal of a Nigerian father’s application for permission to remain in Ireland under the IBC/05 scheme, finding that the decision had been made without considering his Irish citizen daughter’s rights.
Ms Justice Finlay Geoghegan ruled on 14 November 2006 that the Minister for Justice’s decision of 21 November 2005 was unlawful under Article 40.3 of the Constitution and incompatible with the State’s obligations under the European Convention on Human Rights Act 2003. She remitted the application to the Minister for consideration and determination according to law.
The father, Folajimi Bode, applied under the scheme in March 2005. His daughter, Deborah, was born in Ireland in September 2004 and is an Irish citizen. Her mother, Caroline Ola-Bode, had been granted permission to remain under the scheme. The father’s application was refused because the Minister was not satisfied he had provided sufficient evidence of continuous residence in Ireland since his daughter’s birth. Bode maintained he had lived in Ireland since 2002.
The court held that the scheme required the Minister to consider applications from non-national parents of Irish-born children born before 1 January 2005. It found that when deciding whether to refuse a parent’s application, the Minister had to consider the citizen child’s personal rights, including the right to live in Ireland and to be reared with due regard to welfare. A refusal could still be made for good and sufficient reason in the interests of the common good, but the Minister had to consider the child’s circumstances and ensure the decision was proportionate.
The judge also found that refusing the application without considering the child’s private life breached Article 8 of the Convention. She did not find an interference with the family’s right to respect for family life on the arguments presented, and did not decide the applicants’ separate Article 14 ground.
On fair procedures, the court found that Bode’s application documents did not, on their face, establish continuous residence since his daughter’s birth. Although he had said on the form that he had not left Ireland, the birth certificate listed his address as Nigeria. The Department’s evidence described a procedure under which applicants could be asked to supply missing documents, but there was no evidence Bode had received such a request. The court held he should have been given a specified period to provide further evidence and quashed the refusal on that ground as well.
The judgment did not grant Bode permission to remain or determine whether he met the scheme’s criteria. It ordered the refusal quashed and the IBC/05 application reconsidered. The court found it unnecessary to order the Minister to decide a separate residency application, noting that the remitted IBC/05 application remained outstanding.