The Supreme Court allowed the Minister for Justice’s appeal and reversed the High Court’s decision to quash the refusal of Folajimi Bode’s application under the Irish Born Child 05 Scheme. The court held that Bode had not supplied evidence of continuous residence in the State since his daughter’s birth, a requirement of the scheme.
The judgment, delivered by Denham J. on 20 December 2007, concerned a scheme for foreign national parents of Irish-born children born before 1 January 2005. The scheme offered a route to permission to remain for applicants who met its criteria. The Supreme Court described it as a separate administrative arrangement and held that it did not determine applicants’ constitutional or Convention rights.
Bode’s daughter was born in Ireland on 13 September 2004 and was an Irish citizen. Her mother had been granted permission to remain under the scheme. Bode, a Nigerian national, applied in March 2005. The Minister refused the application in November that year, saying the documents did not provide sufficient evidence of his residence in the State since the child’s birth.
The High Court had quashed that refusal, finding breaches of the child’s constitutional rights and the Minister’s obligations under the European Convention on Human Rights Act. It also found that Bode should have been told that his documents were insufficient and given an opportunity to provide more evidence.
The Supreme Court disagreed. It upheld the High Court’s finding that the documents did not prove continuous residence, and held that the scheme’s published terms made that a condition of eligibility. It found the Minister was entitled to decide the application on the documents submitted and was not obliged to invite further material after the application deadline. The court said the absence of a follow-up letter did not amount to unfair procedures in this case.
The ruling did not decide whether Bode could remain in Ireland on other grounds, nor did it order his deportation. The court said an unsuccessful IBC 05 application left an applicant in the same position as before applying. It noted that relevant constitutional and Convention rights were to be considered through the statutory process under section 3 of the Immigration Act 1999. The High Court had quashed an earlier deportation order on consent; the Supreme Court said any new or changed circumstances could be raised under section 3(11).