The High Court has ruled that the Minister was entitled to exclude a couple’s residence from 13 February 2004 to 30 June 2005 when calculating whether their twin children met the residence requirement for Irish citizenship and passports.
The ruling was made by Mr Justice Mac Eochaidh on 20 March 2014, on a preliminary issue in a judicial review brought by five anonymised applicants. The judge answered “Yes” to the agreed question of whether the Minister was correct to discount that period. He did not determine the remaining proceedings, saying he would hear the parties on what should happen next.
The first and second applicants, a married couple from Pakistan, had three children. Their eldest child was born in Ireland in 2002 and was an Irish citizen. Their twins were born in Ireland on 30 June 2005. Applications for Irish passports for the twins were refused because the parents were found not to have the required three years’ reckonable residence in the four years before the twins’ birth.
The parents argued that residence while their immigration applications were pending should count. They said the state’s acceptance that their residence before the Immigration Act 2004 took effect was reckonable implied a form of permission that continued after the Act began. They also relied on the absence of a proposal to deport them while their applications were being considered.
The respondents argued that the parents had no permission to remain from 13 February 2004 until permission was granted under the IBC/05 scheme on 19 July 2005. They said the fact that residence before the 2004 Act took effect could count did not create permission that carried forward after commencement.
The judge accepted the respondents’ interpretation. He found that unregulated residence before 13 February 2004 could count because it could not have breached an Act that was not yet in force. From the Act’s commencement, however, residence without an existing or new permission was unlawful and could not be counted under the citizenship legislation. The judge rejected the argument that pre-commencement residence gave the parents an implied permission continuing after that date.
The court’s decision addressed only the agreed preliminary question concerning the 13 February 2004 to 30 June 2005 period. The judgment did not itself decide the final outcome of the judicial review or make a final order on the passport applications.