The High Court ruled that the Minister for Justice acted unlawfully in refusing an Egyptian father’s application to remain in Ireland based on his Irish-citizen child. The court quashed the refusal and remitted the application to the Minister for a fresh decision in accordance with law.
In a supplementary judgment delivered on 14 November 2006, Ms Justice Finlay Geoghegan said the refusal breached the child’s rights under Article 40.3 of the Constitution and the State’s obligations under Article 8 of the European Convention on Human Rights. The judgment also found that the decision was incompatible with the State’s obligations under section 3(1) of the European Convention on Human Rights Act 2003.
The father, an Egyptian national, had applied under the IBC/05 arrangements for permission to remain in the State. His application was refused on 19 August 2005 because the Minister considered that he had not lived continuously in Ireland with his Irish-born child since the child’s birth. The refusal letter cited the father’s residence in Egypt from 13 October 2003 to 10 March 2005.
The child was born in Ireland on 14 September 2003 and is an Irish citizen. The father and his wife had spent about six weeks in the State around the birth, then returned on 10 March 2005. The father applied from within the State.
The father had received leave to seek judicial review in November 2005. The child was joined as a second applicant by order during the hearing on 12 July 2006. The case was heard alongside proceedings in Deborah Olarantimi Bode & Ors. v. Minister for Justice, Equality and Law Reform. Justice Geoghegan said the family’s circumstances differed because they had not claimed asylum in Ireland, but that difference did not affect the submissions on the alleged invalidity of the IBC/05 decision.
The court relied on its conclusions in the Bode judgment. It quashed the 19 August 2005 refusal and remitted the father’s application for consideration and determination by the Minister in accordance with law. The supplementary judgment did not itself grant permission to remain.