The past month has seen a number of important judgments related to immigration matters being delivered by the Irish courts. Here is a summary of these important judgments and their implications. 

UM (a minor suing by his father and next friend MM) v Minister for Foreign Affairs and Trade, & Passport Appeals Officer – refusal of Irish passport to Irish born child as a result of revocation of fathers refugee status.

The Court of Appeal issued judgment on the 11th of June 2020 in the case of UM v Minister for Foreign Affairs and Trade and Passport Appeals Officer David Barry.  The case related to the effect of section 6(a) of the Irish Nationality and Citizenship Act 1956 as amended, where certain persons born on the island of Ireland are not entitled to Irish citizenship unless one of their parents has been resident in the State for a specific period of time.  

The minor applicant in the case was born in the State in June 2013 following which his father applied for an Irish passport on his behalf in February 2014.  The applicant’s father had previously been granted refugee status which was later revoked in 2014 in circumstances where he had submitted false and misleading information in support of his asylum application in 2005.  The false information related to the applicant father’s failure to disclose a previous asylum application made in the UK when he submitted his application for asylum in Ireland.  

Under these circumstances, the father’s presence in the State was not reckonable for the purpose of his son being entitled to Irish citizenship, due to the fact that his previous residence was void as a result of the revocation of his refugee status.

The court held:

“the ‘permission’ upon which UM relies as grounding his claim of citizenship was on the undisputed evidence in this case obtained by MM through the provision of false and misleading information. It was not, therefore, a permission within the meaning of s.5(1) of the Immigration Act 2004. The revocation of MM’s declaration of refugee status meant that that declaration was not ‘in force’ during the time MM was physically present in the State. It follows that s.5(3) of that Act did not accordingly operate to dis-apply the former provision insofar as his residence was concerned. Therefore, MM’s presence in the State is not reckonable for the purposes of UM’s claim of citizenship. That being so UM’s appeal must be dismissed.

This is an extremely important decision which is not just of relevance to individuals whose refugee status has been revoked and who subsequently apply for Irish passports for their children but in more recent times is of significant relevance to individuals who have been residing in Ireland on an immigration status such as an EUFAM 4 residence card which has subsequently been revoked.  We are aware of many clients who were granted residence cards in recent years as the family members of EU nationals whose residence cards have been revoked for various reasons, and who may at some point have had children through other relationships which would have qualified for Irish passports due to their own reckonable residency prior to their children’s birth.  

We have seen a stark increase in the revocation of Irish passports and the refusal of applications for passports for such children due to the reckonable residency of the parent being deemed invalid, particularly in cases where the qualifying parent was granted a residence card as the family member of an EU national.  We expect to see a lot more of such cases in the future and the decision in the case herein will no doubt be of important relevance which will be relied upon by the Minister for Justice and Minister for Foreign Affairs in similar situations.

X v Minister for Justice and Equality, Ireland and the Attorney General – definition of child under the International Protection Act 2015.

The Supreme Court delivered Judgment in the case of X v Minister for Justice and Equality & Ors on the 9th of June 2020.  This is another important decision of the Supreme Court,  this time related to an appeal of the Minister for Justice to the Supreme Court against a finding of the High Court that the word (child) in the International Protection Act 2015 extended beyond biological and adopted children for family reunification purposes under the International Protection Act 2015.   

The Court found that the definition of child under the International Protection Act 2015 means biological or adoptive child of the sponsor only.

Whilst the Judgment in this case provides clarification on the definition of a child pursuant to the 2015 International Protection Act, it is a disappointing decision given the makeup of the modern family unit which currently comes in many different shapes and forms and where children may not always be biological or adoptive children of a sponsor.

Interestingly in relation to DNA evidence and testing, an issue which frequently arises in applications for family reunification whether related to refugees, Zambrano applications for Irish citizen parents or general family reunification, the court found that DNA testing should only arise in the limited circumstances where serious doubt has been raised as to the issue of paternity.  It found that DNA testing requirements should be limited to cases of serious doubt only and this is a most positive finding in the judgment which can be relied upon by Applicants in future applications where DNA evidence is being requested unnecessarily.

MAM (Somalia) v The Minister for Justice and Equality and K.N (Uzbekistan) & Ors v The Minister for Justice and EqualityIrish citizens previously granted refugee status entitled to family reunification.

On the 19 June 2020, the Supreme Court delivered the highly anticipated judgment in the joint test cases of  MAM (Somalia) v The Minister for Justice and Equality and K.N (Uzbekistan) & Ors v The Minister for Justice and Equality.

This is an extremely important decision which dealt with the rights of two refugees who subsequently became Irish citizens by way of Naturalisation and their entitlement to assert Family Reunification rights pursuant to the Refugee Act 1996.  

The Applicants in the proceedings who were granted refugee status to live in Ireland and who later became Irish citizens, submitted applications under the 1996 Refugee Act for their family members to join them in Ireland.  Their applications were refused by the Department of Justice and Equality due to the fact that they had become Irish Citizens, maintaining that as a result of the grant of Irish citizenship, that they were no longer refugees.  

The Court ruled that the women did not lose their right to apply for family reunification under section 18 of the Refugee Act 1996 as a result of them becoming Irish citizens. It found that the interpretation of the Minister for Justice and Equality regarding Section 18 and other sections of the 1996 Act was not logical when it required Section 18 to be interpreted restrictively.

The decision should benefit approximately 50 other applicant families similarly situated to the Applicants in the proceedings.  Unfortunately as a result of the change in the law whereby family reunification is now dealt with under the International Protection Act 2015 it is not of benefit to individuals applying under the current legislation however it is nonetheless a fantastic result for the approximately 50 families who are affected by the provisions of this most humane unanimous judgment.  

We would hope that this will be seen as a broader opportunity to re-examine family reunification policy under the International Protection Act or perhaps result in the reintroduction of the much welcomed and utilised IHAP scheme which was open to applications for a short time frame only.

Georgeta Voican v. Chief Appeals Officer, Social Welfare Appeals Office, Minister for Employment Affairs & Social Protection, Ireland and the Attorney General – social welfare entitlements of EU family members.

Judgment was delivered by Mr Justice Garrett Simons in the High Court on the 29 May 2020 in this matter.

The key issue being litigated in this case is whether the mother of an EU citizen worker is entitled to receive a form of social assistance, in this case disability allowance, notwithstanding that she has not been economically active in Ireland and has been resident here for less than five years. 

The applicant in the case is a Romanian national who has been living in the State since 2017 with her daughter, who is both a dual Romanian and Irish citizen. Whilst strictly speaking not an immigration matter with the challenge related to a social welfare refusal, the case deals in depth with the provisions of the Citizenship Directive (Council Directive 2004/38/EC) and its implementation into Irish domestic law through the European Communities (Free Movement of Persons) Regulations 2015 (S.I 548 of 2015).

In finding in favour of the applicant in, the court held as follows:

” …the applicant has a right of residence within the State based on Article 7 (1) D and Article 14 of the Citizenship Directive. Prior to joining her daughter in Ireland, the applicant while living in Romania and Spain, had been financially dependent on her daughter, an EU citizen who was a migrant worker lawfully resident in the State. The applicant does fulfil the criteria under Article 2 (2) D of the Citizenship Directive

Article 24 of the Citizenship Directive provides that all EU citizens residing on the basis of the Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. This extends to family members, such as the mother in this case, who are themselves EU citizens.

The court concluded that the respondents are not entitled to impose a self-sufficiency requirement on the applicant nor to deny her equal treatment in the context of an application for social assistance in the form of disability allowance. The EU legislator has ordained that it is not an unreasonable burden for a member state to allow the dependant family members of a migrant worker a right to equal treatment in respect of social assistance. “

Therefore, the applicant in this case was found to be entitled to receive social welfare payments after living in Ireland for more than three months even though she was not working, and the court ordered a reconsideration of her appeal within six weeks.

The judgment clarifies the law for several thousand dependants of non-Irish EU nationals living in the Republic of Ireland seeking to claim social welfare benefits provided that they meet the same qualifying criteria as Irish citizens.

The immigration team at Sinnott Solicitors are experts on all Irish immigration matters. If you would like to discuss an Irish immigration matter, do not hesitate to contact our office today on 014062862 or info@sinnott.ie.