Sulaimon v Minister for Justice, Equality and Law ReformNeutral citation: 2012 (IESC) 63
Supreme Court
Judgments were given by Mr Justice Adrian Hardiman and Mr Justice Donal O’Donnell on December 12th, 2012.
Judgment
The five-judge court unanimously dismissed the Minister for Justice’s appeal against the High Court judgment overturning his refusal to issue a certificate of nationality. The High Court had quashed the Minister’s decision of October 5th, 2009, to refuse to issue a certificate of nationality to Faisol Sulaimon.
Background
Faisol Oluwanifemi Sulaimon was born in the Rotunda Hospital, Dublin, on August 24th, 2008, to Nigerian parents. In October of that year, his father applied to the Department of Foreign Affairs for an Irish passport for his infant son.
The department refused his application for a passport on the grounds that the Irish Nationality and Citizenship Act was not satisfied. Under the Act, citizenship entitlement depends on whether a parent (the boy’s father in this instance) was lawfully resident in Ireland for a total of three of the four years immediately preceding the birth. The department maintained that the father was three days short of this three-year rule.
Under the relevant law, the father had to be lawfully resident for 1,095 days but the Department of Justice and Department of Foreign Affairs calculated he was lawfully resident for 1,092 days.
The departments maintained the date of lawful residency began, not when the boy’s father got a letter saying the Minister had granted him permission, but when the father’s passport was stamped by an immigration officer and he was registered under the Irish Nationality and Citizenship Act.
The father claimed he was lawfully resident from at least July 7th, 2005, the date of a letter to him from the Department of Justice stating the Minister had granted him permission to remain in the State “for two years until 07/07/07”.
In 2007, the father secured further permission to remain up to August 2008 which it was argued brought him over the 1,095 days. The Minister however argued that the father was lawfully resident in the country from July 22nd, 2005, the date July 22nd was chosen because that was the date the father was registered in accordance with Section 4 of the Act, and his passport stamped.
The High Court found, by way of judicial review, that the boy was entitled to a certificate of nationality on the grounds of his father’s lawful residence in the state for the relevant period. The Minister of Justice appealed the decision.
Decision
In his judgment, Mr Justice Adrian Hardiman noted the child’s application for a passport was refused “on grounds so threadbare” and on foot of an administrative decision “not merely being wrong but as flying in the face of the ordinary meaning of words and numbers, especially dates”.
The decision “was justified by a bewildering display of unembarrassed casuistry”, he said.
Mr Hardiman went on to say it was dispiriting to see State litigation conducted in this way, at public expense.
“I simply do not understand why so great an effort has been made over so long a period to deprive a small boy of citizenship in the country where he has been permitted to reside all his life, a citizenship enjoyed by his father and his sister. If there is a point to the pain and anxiety caused to the child’s family, the expense to which they have been put and the taxpayers money which has been spent, it entirely eludes me.”
He also criticised the appellant for defending the case, without contradicting the infant respondent’s evidence, and without putting forward any evidence of his own.
Mr Hardiman said the phrase “permission to remain in the State for two years until 07/07/2007” means a permission to remain from the 7th July, 2005 to July 7th, 2007. “No rational person would maintain the contrary in any forum but a court of law.”
The appellant argued that the permission to remain did not become effective until the infant’s father had presented himself for registration in accordance with the Immigration Act. However, the court found that in order to be registered under the Act, a non-national must have permission to be in the State.
“Registration on this register is what is referred to in the letter of the 7th July, 2005 – there is no other process of registration which could be in question.”
He ultimately dismissed the appeal by the Minister for Justice that the father was only lawfully resident from July 22nd, affirming that the infant respondent’s father’s first permission to remain was operative from July 7th, 2005.
In his separate judgment, Mr Justice Donal O’Donnell said some arguments advanced to justify the Minister’s decision would, if correct, create “an entirely undesirable state of confusion”.
Arguments in the High Court justifying the Minister’s refusal had led to “some strange conclusions”, he said. In the Supreme Court, counsel for the Minister was then “forced to argue the word permission had two different meanings, not only in the same section of the relevant law, but in the same sentence”.