Judgment: 2011-12-21 · Court archive

High Court rejects Irish citizenship claim by child born to asylum seeker

The court found that the child’s mother’s right to remain in Ireland was restricted when the child was born, before the mother was declared a refugee.

High Court · 2012 [IEHC] 526

Who, what, where, when and why

Who
  • The Minister for Justice, Equality and Law Reform (Respondent)
  • B.K.
  • D.M.
What

The court found that the child’s mother’s right to remain in Ireland was restricted when the child was born, before the mother was declared a refugee.

Where

Places mentioned in the report

  • Cork
  • Ireland
When

Judgment:

Why

Reasons reported in the judgment

The Minister argued that the mother’s residence remained restricted until the refugee declaration, which came after the birth. The court agreed. It held that the mother was entitled to remain while her asylum application was pending, but that this permission was for the purpose of awaiting a final determination and carried a restriction on the period of residence. The later refugee declaration did not remove that restriction as it stood on the child’s date of birth.

The High Court refused a four-year-old girl’s application to be recognised as an Irish citizen, ruling that her mother’s residence in Ireland was restricted when the child was born.

The girl, identified in the judgment as B.K., was born in Cork on 30 August 2006. Her mother, identified as D.M., had arrived in Ireland on 15 July 2005 and was seeking refugee status. She was formally declared a refugee on 12 February 2009, after her daughter’s birth.

The case challenged a decision made by the Minister for Justice, Equality and Law Reform on 26 May 2010 refusing to recognise the girl as an Irish citizen. The child sought to have that decision quashed, a declaration of citizenship and an order requiring the Minister to recognise her citizenship and authorise a passport.

The citizenship law generally required a parent of a child born on the island of Ireland to have lived there for at least three years during the four years before the birth. The child’s mother had been in Ireland for slightly more than a year. The claim therefore relied on an exception for a child whose parent was entitled to reside in the State without restriction on the period of residence.

The applicant argued that her mother’s permission to remain while her refugee claim was being determined had no time restriction unless one of several specified events occurred. Since her mother was ultimately declared a refugee, the applicant argued that those events had not restricted her residence.

The Minister argued that the mother’s residence remained restricted until the refugee declaration, which came after the birth. The court agreed. It held that the mother was entitled to remain while her asylum application was pending, but that this permission was for the purpose of awaiting a final determination and carried a restriction on the period of residence. The later refugee declaration did not remove that restriction as it stood on the child’s date of birth.

The court concluded that the child did not qualify for citizenship under the relevant statutory provision and was not entitled to an Irish passport. It declined to quash the Minister’s decision and refused the requested citizenship declaration and order requiring recognition. The judgment noted that the child was lawfully in Ireland and could apply for a certificate of naturalisation in her own right from her fifth birthday, 30 August 2011.

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