Wednesday, May 2, 2012

Case Study: Entitlement to citizenship upon birth of child of asylum seeker who is subsequently declared to be a refugee

B.K. (A Minor) v The Minister for Justice, Equality and Law Reform [2011] IEHC 526, delivered on the 21st December 2011

The applicant in these High Court Judicial Review proceedings was a four-year-old girl seeking to quash a refusal by the Minster to recognise the applicant as an Irish citizen. The applicant also seeks a declaration that she is an Irish citizen and an order requiring the respondent to recognise this and to issue her with an Irish passport

The applicant’s mother, a Cameroon national, arrived in Ireland in July 2005. The Refugee Appeals Tribunal recommended that the applicant’s mother be declared a refugee. Pursuant to s 17(1)(a) of the Refugee At 1996 a declaration was signed by the respondent declaring the applicant’s mother a refugee on 12th of February 2009. Before the applicant’s mother was declared a refugee, she gave birth to the applicant in August 2006. At the time of birth the applicants mother was residing in Ireland pursuant to s 9 of the Refugee Act 1996 allowing her to remain in the state pending determination of her application for refugee status.

The applicant’s mother now seeks to challenge the refusal of the Citizenship Division of the Department of Foreign Affairs to issue her daughter with a passport to recognise her child as an Irish citizen pursuant to s 6 of the Irish Nationality and Citizenship Act 1956. S 6(a) of this act deals with entitlement to Irish citizenship to persons born to non-nationals. An entitlement to Irish citizenship does not apply to all persons born in Ireland. One will not be entitled to citizenship in circumstances where the parent of the child has not been resident in Ireland for an aggregate period of three years out of the last four years or if one of the parents was not entitled to reside in the state due to restrictions on their period of residence.

The respondent submitted that the applicant’s mother did not have the appropriate number of years reckonable residence in the state prior to the birth of the applicant as she had only been in Ireland for over a year. The central issue for determination is whether the applicant’s mother was entitled to reside within Ireland without any restriction as of the applicant’s date of birth at a time when she was not yet a declared refugee.

The applicant contended that her mother did not have any restriction on her residence in the State given that the proper reading of s 9(2) of the Refugee Status Act 1966 meant that leave to remain in the state is without any restriction and that a restriction would only arise in respect of her mother's residence if one of the three events outlined in s 9 occurred.

The respondent submitted that not only did the applicants mother not have the appropriate years reckonable residence in Ireland prior to the birth of the applicant but that her residence was also restricted as of the applicants date of birth and remained so until she obtained a declaration of refugee status.

The Court was satisfied that a correct reading of s. 9 of the Refugee Act 1996 meant that as of the date of the applicant's birth, the applicant's mother was only entitled to remain in Ireland for the purpose of ensuring a final determination of her application for refugee status. This meant that that there was a restriction on her period of residence within the state. This restriction remained in force until the date upon which she was declared a refugee and was therefore in force as of the date of the birth of the applicant.

In the light of the above findings the Court was satisfied that the correct construction of the legislation results in a situation where the applicant's mother was a person whose right of residence within the State was restricted as of the date of birth of the applicant and that therefore the applicant does not have an entitlement to Irish citizenship.

It should be pointed out that the applicant is lawfully within the jurisdiction and will be entitled to apply for a certificate of naturalisation in her own right as and from her fifth birthday which occurs on the 30th August, 2011.


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