An important judgment of the Supreme Court of Ireland was delivered in the case of UM (a minor) -v- The Minister for Foreign Affairs and Trade Passport Appeals officer David Barry last week. The case concerns the impact of the revocation of refugee status on the derived rights of others obtained prior to revocation. The derived right in this case is the Irish citizenship of an Irish born child.

The minor child in this case was born in the State to Afghan national parents. The father was granted refugee status in 2006, whilst his mother came to Ireland in 2012 through family reunification and was later granted refugee status in 2015.

The fathers refugee status was revoked with effect from the 31st of August 2013 due to a previously fraudulent asylum claim in the UK. An Irish passport application was submitted on behalf of the child in February 2014 based on his father’s refugee status at the time of his birth. The Minister for Foreign Affairs failed to accept that UM was an Irish Citizen because his father's refugee status had been revoked, and UM’s application for an Irish Passport was therefore refused on that basis.

Judicial Review proceedings were instituted challenging the refusal.

High Court and Court of Appeal Judgment

The High Court [2017] IEHC 741 agreed with the decision to refuse the passport. Stewart J in the High Court held that residence procured in that way could not be deemed to be reckonable residence for the purposes of citizenship.

The Court of Appeal upheld the High Court’s finding and found that the revocation of the applicant’s father's declaration of refugee status meant that the declaration was not ‘in force’ during the time he was physically present in the State, and therefore his residence was not deemed reckonable for the purposes of his son's citizenship application.

The Court of Appeal relied on the principle that “fraud unravels everything”, and no benefit could therefore flow from the father’s refugee status which should never have been granted.

Supreme Court Judgment

The matter was further appealed to the Supreme Court who overturned the decisions of the High Court and Court of Appeal on the 2nd of June 2022.

The Court held as follows:

“On the face of it, it is difficult to argue with the conclusion of the Court of Appeal that a declaration of refugee status which is revoked in circumstances where the revocation took place because the applicant had provided false and misleading information would appear at first instance to give rise to a view that the declaration, being based on a false premise, was void ab initio.

However, it seems to me that, in order to reach that conclusion, it is necessary to ignore the fact that the Minister has a discretion as to whether or not to revoke and is only required to do so when it is considered appropriate to do so.

The giving of such a discretion to the Minister would have enabled the Minister in an appropriate case to consider the effect of a decision to revoke on those who would appear to have obtained derivative rights prior to revocation. Taking that language into consideration, together with the language used in s.5 of the 2004 Act, it seems to me that, while a declaration is in force, and until such time as it is revoked, it must be regarded as being valid. I simply cannot accept the view that the effect of revocation in such circumstances is to render the declaration void ab initio. In those circumstances, I would allow the appeal. “

The court found that in the absence of clear language to the contrary, statutes could not retrospectively change the legal nature of past conduct. The revocation of refugee status took effect from the date of revocation and did not relate back to the facts leading to the revocation.

Legal Impact of the Judgement

The judgement is significant as it upholds the rights of the child with respect to Irish citizenship. We have seen many cases in the past where a child’s Irish citizenship has been denied or revoked due to the actions of their parents, with devastating consequences for all involved. This is particularly relevant in the area of EU Treaty Rights where many innocent children’s Irish citizenship has been denied or revoked following revocation of their parents' residence status, for example where there have been marriage of convenience findings in an EU Treaty Rights case.

The immigration team at Sinnott Solicitors Dublin and Cork welcome the Supreme Court's finding that a child cannot be deprived of their right to Irish citizenship at birth due to the fraudulent actions of the individual whose residence is relied upon to entitle them to Irish citizenship. It is a hugely important development and we submit will re-open the cases of many children whose Irish citizenship has been denied or revoked in the past due to the revocation of their parents' refugee or residence status.

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