The Supreme Court allowed the Minister for Justice, Equality and Law Reform’s appeal against a High Court ruling that had quashed the refusals of two Romanian nationals’ applications to remain in the State under the IBC 05 Scheme.
The case concerned the applicants’ Irish-born son, who was born on 14 November 2001, is an Irish citizen and has lived in Ireland since birth. The applications by his father and mother were refused on the basis of shoplifting convictions. The judgment says it was common case that each parent had been convicted of a shoplifting offence.
The Minister’s letters said the scheme’s criteria included that applicants should not have been involved in criminal activity. The letter to the father referred to a conviction on 1 March 2004 under section 4 of the Theft Act 2001. The letter to the mother referred to a conviction at Dublin District Court on 9 May 2002 under section 2 of the Larceny Act 1916, as amended, and a three-year suspended sentence; it also said two other charges were taken into consideration. The Minister later told the applicants that the refusals remained in place after they requested reconsideration.
The High Court had found the decisions unlawful because the Minister had not considered the child’s rights under Article 40.3 of the Constitution and Article 8 of the European Convention on Human Rights. It quashed the refusals and sent the applications back to the Minister for reconsideration in accordance with law.
In a judgment delivered by Denham J. on 20 December 2007, the Supreme Court held that the constitutional and Convention rights arguments were misconceived and premature in this challenge to the administrative scheme. It said the scheme’s criteria were clear, included the absence of criminal activity, and had been applied within those criteria.
The court said unsuccessful applicants remained in the position they were in before applying, with relevant rights still to be considered in another process, giving section 3 of the Immigration Act 1999, as amended, as an example. It allowed the Minister’s appeal and reversed the High Court decision. The judgment did not determine the applicants’ rights in any later process.