The High Court quashed a letter notifying two children that their Irish passports would be cancelled, finding that the letter communicated a decision rather than a proposal and did not give them an adequate opportunity to make submissions beforehand.
Mr Justice Richard Humphreys made the order on 24 June 2019 in judicial review proceedings brought by two minors through their father and next friend. He remitted the matter to the Minister for Foreign Affairs and Trade for reconsideration. The court did not decide that the children were entitled to Irish passports or that the passports could not be cancelled.
The challenged letter, dated 6 December 2018, left open the possibility of further submissions, but the judge found its wording announced a decision to take effect prospectively. The Minister could either cancel without advance notice if the public interest required it, while inviting submissions afterwards, or give notice of a proposal and allow time for submissions before deciding. The procedure followed did neither adequately, the judge said.
Under the order, if the Minister does not consider immediate cancellation necessary in the public interest but still proposes to cancel the passports, the children must be given 28 days to make submissions before a decision. If the Minister considers the public interest requires cancellation without notice, the children must be notified of that decision and invited to make submissions afterwards. The judge said the 28-day period was specific to this case and that shorter periods may ordinarily be set.
The children’s citizenship applications relied on their father’s residence. The judgment records that the Minister for Justice and Equality had previously found his marriage to an EU national was one of convenience and that his residence permission had been revoked retrospectively. The father did not challenge the review decision, which the judge said remained effective in these proceedings. The children could not use this passport case to challenge it collaterally and out of time.
The court rejected the other grounds as adding nothing material to the lack-of-notice complaint, or as not arising on the evidence and issues before it. It also said the children could make any submissions open to them on their welfare, while indicating those considerations appeared to have minimal or no relevance to the factual question of passport cancellation. The stay sought earlier in the proceedings had been refused; the passports had not in fact been cancelled.