The High Court quashed a decision refusing to consider a Nigerian mother’s application for permission to remain in Ireland, ruling that the Minister had to consider the rights of her Irish citizen child before exercising discretion to reject it as late.
In a supplementary judgment dated 14 November 2006, Ms Justice Finlay Geoghegan also ordered that the application be remitted for consideration and determination in accordance with law. The court did not decide whether the mother should be granted permission to remain.
The mother arrived in Ireland in March 2003. Her younger son, the third named applicant, was born in the State on 27 March 2003 and was an Irish citizen. Her other son was born in Nigeria in 2001.
The mother submitted an IBC/05 application on 26 April 2005, which the Department received on 5 May. The IBC/05 arrangements had a 31 March 2005 deadline. In a letter dated 29 November 2005, reissued on 19 December, the Minister said the application was too late to be considered under those arrangements.
After the initial refusal, the mother’s solicitors sent a further application letter on 15 December 2005 with 12 documents, including the original IBC/05 form and material said to support her residence in Ireland. They asked the Minister to grant leave to remain. The Minister’s 29 November letter was reissued in response.
The Minister argued that the late application was outside the IBC/05 commitment and that the solicitors’ letter was only a repeat application, not a separate application. The judge held that the deadline meant the Minister was not committed under the scheme to consider applications submitted after March, but the scheme did not prevent him from considering them. The Minister retained discretion to receive and determine an application independently of the scheme.
The judge ruled that, where an application concerned a parent of an Irish citizen child, the Minister had to consider the child’s protected personal rights when deciding whether to consider the application. That required a fair and proper inquiry into the child’s and family’s circumstances. The refusals were invalid because they did not consider the child’s rights under Article 40.3 of the Constitution. The judge also found a breach of the child’s right to respect for private life under Article 8 of the European Convention on Human Rights, as applied by the European Convention on Human Rights Act 2003.
The order quashed the refusal issued on 29 November and reissued on 19 December 2005, and remitted the mother’s application for lawful consideration and determination.