The Supreme Court allowed the Minister for Justice’s appeal against a High Court order that had quashed the refusal of Samir Moriss Gerges Fares’s application under the IBC 05 Scheme. The court held that the application was misconceived because the scheme required continuous residence in the State from the child’s birth, and the evidence showed the family had left Ireland for a substantial period.
The judgment, delivered by Denham J. on 20 December 2007, concerned permission to remain in Ireland for a foreign national parent of an Irish-born child. The Minister’s scheme set out general criteria for a defined group of foreign nationals, including continuous residence since the child’s birth.
Fares, an Egyptian national, entered Ireland with his wife on 1 September 2003. Their child was born in the State on 14 September. The family left on 13 October 2003 and returned on 10 March 2005 on visitors’ visas. Fares and the child’s mother applied under the scheme; both applications were refused on 19 August 2005. The refusal letter said they had been resident in Egypt between their departure and return and therefore did not meet the scheme’s criteria.
The High Court had found the refusal unlawful, concluding that it 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. It quashed the Minister’s decision and remitted the application for a lawful determination.
On appeal, the Supreme Court reversed that order. It said there was no evidence of continuous residence and that the evidence was to the contrary. The Minister had administered the scheme within its stated terms. The court held that constitutional and Convention rights were not to be considered as part of this scheme; challenges on those grounds were premature. It added that applicants unsuccessful under the scheme remained in the position they had been in before applying, with relevant rights claims still to be considered.
The judgment did not determine those rights claims. It said they could be addressed if the family returned to the State. The source also identifies this appeal as one of eight related cases, with the general reasons set out in the Bode judgment.