The Supreme Court dismissed the Minister for Justice’s appeal and affirmed the High Court order quashing the refusal to issue a Certificate of Nationality to a Dublin-born child. The Court held that the child’s father’s first permission to remain in Ireland was operative from 7 July 2005. It did not decide when a later permission granted in 2007 took effect.
The child was born in the Rotunda Hospital on 24 August 2008 and was represented in the case by his father as next friend. Under the nationality law considered in the judgment, a child born on the island of Ireland would not qualify through a parent unless that parent had at least three years’ reckonable residence in the four years immediately before the birth. Residence in breach of the Immigration Act’s permission requirement could not be counted.
The father said he had lived lawfully in Ireland since 7 July 2005. A Department of Justice letter dated that day said the Minister had decided to grant him permission to remain for two years, until 7 July 2007. A departmental record prepared during a 2007 renewal process also recorded 7 July 2005 as the date permission had been granted. The father registered and had his passport stamped on 22 July 2005.
The Minister argued that permission only took effect when the immigration officer placed the stamp in the passport. On that calculation, the father fell short of the required residence period. The child challenged the refusal by judicial review and succeeded in the High Court, after which the Minister appealed.
In the judgment delivered by Mr Justice Hardiman, the Supreme Court rejected the argument that the passport stamp was required to make the Minister’s permission effective. It found that the 2005 letter recorded a decision granting permission from 7 July, and that the statutory provisions did not make registration the act that created permission. The Court relied on the statutory register’s description as a register of people who already “have permission to be in the State.”
The Court dismissed the appeal and affirmed the High Court order. It did not determine the start date of the father’s 2007 permission, saying that question was unnecessary to resolve the case. The judgment also noted that the document containing the actual grant was not available, although the State accepted that such a document must exist.