TRI (A minor suing by his mother and next friend, LB) v The Minister for Foreign Affairs and the Minister for Justice (Approved) [2025] IESC 7 (14 February 2025)

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> TRI (A minor suing by his mother and next friend, LB) v The Minister for Foreign Affairs and the Minister for Justice (Approved) [2025] IESC 7 (14 February 2025) URL: http://www.bailii.org/ie/cases/IESC/2025/2025_IESC_7.html Cite as: [2025] IESC 7

AN CHÚIRT UACHTARACH

THE SUPREME COURT

[2025] IESC 7

Record No: S:AP:IE:2024:000038

High Court Record No: 2022 1073 JR

O'Donnell C.J.

O'Malley J.

Hogan J.

Murray J.

Donnelly J.

Between/

TRI (A minor suing by his mother and next friend, LB)

Appellant

AND

The Minister for Foreign Affairs and the Minister for Justice

Respondents

JUDGMENT of Ms. Justice Donnelly, delivered on this 14^th day of February, 2025

1. This appeal concerns the interpretation of s. 6A(2)(d)(i) of the Irish Nationality and Citizenship Act, 1956, as amended and its interrelation with s. 53 of the International Protection Act, 2015. Specifically, the issue is whether at the time of the appellant's birth, his mother, a beneficiary of subsidiary protection under the 2015 Act, was entitled to reside in the State without any restriction on her period of residence as required by s. 6A(2)(d)(i) of the 1956 Act. If she had no restriction on her period of residence, the appellant is entitled to birthright citizenship.

2. The appellant was born in the State in the autumn of 2019. At that time his mother held a declaration of subsidiary protection. On 24 August 2021, the appellant's mother applied for an Irish passport for him relying on s. 6A(2)(d)(i) of the 1956 Act, in claiming that at the time of his birth she was entitled to reside in the State without any restriction on her period of residence. This application was rejected by the Minister for Foreign Affairs in a decision dated 15 November 2022, on the grounds that s. 6A(2)(d)(i) did not apply to a person with subsidiary protection. Such a person is, under s. 53 and s. 54 of the 2015 Act, given a permission to reside for a specified period of not less than 3 years where that permission 'shall be renewable' but certain conditions apply to the permission to reside such as the continued entitlement to a declaration of subsidiary protection. At the risk of oversimplifying the arguments, on behalf of the appellant it is submitted that as his mother had a mandatorily renewable right to a residence permission, there was thus no time restriction on her period of residence. On behalf of the respondents, it was submitted that there were constraints on her period of residence such as the requirement to have continued eligibility for a subsidiary protection declaration.

3. This appeal is made directly from a decision of the High Court to refuse to grant an order of certiorari quashing the decision of the Minister for Foreign Affairs denying the appellant's application for an Irish passport.

Legislative Overview

4. Two principal statutes are at issue in this appeal: The Irish Nationality and Citizenship Act, 1956, as amended ("the 1956 Act") and the International Protection Act, 2015 ("the 2015 Act"). The 1956 Act was significantly amended by the Irish Nationality and Citizenship Act, 2004 ("the 2004 Act") in the wake of the Twenty-seventh Amendment of the Constitution Act, 2004, which concerned the Irish citizenship of those born in the island of Ireland to parents of whom neither is an Irish national. Further reference to the context in which these amendments were made will be made later in this judgment.

5. The present provisions of the 1956 Act are drafted in a somewhat unusual format. While s. 6(1) appears to grant citizenship to all those born in the island of Ireland -which the original s. 6(1) had provided for - the subsection as amended contains within it a disapplication of that right by making it subject to a further section (s. 6A) which imposes reckonable residential requirements. Crucially, however, that further section also contains within it a disapplication of the reckonable residence requirements in certain situations. It is one of those disapplication situations to s. 6A (for ease of reference I will refer to these as 'exclusions' to s. 6A) that is in issue here.

6. Section 6A of the 1956 Act was inserted by the 2004 Act. In so far as is relevant, s. 6A, under the heading "Entitlement to Irish citizenship of persons born to certain non-nationals", provides:

"6A.—(1) A person born in the island of Ireland shall not be entitled to be an Irish citizen unless a parent of that person has, during the period of 4 years immediately preceding the person's birth, been resident in the island of Ireland for a period of not less than 3 years or periods the aggregate of which is not less than 3 years.

(2) This section does not apply to—

(a) a person born before the commencement of the Irish Nationality and Citizenship Act 2004,

(b) [deals with a situation where at least one parent was an Irish citizen or entitled to be an Irish citizen at the time of the birth],

(i) to parents at least one of whom was at the time of the person's birth a British citizen or a person entitled to reside in Northern Ireland without any restriction on his or her period of residence,

(ii) if the person was born to parents one of whom was deceased at the time of the person's birth and—

(I) the other parent was at that time, or

(II) the deceased parent was, immediately before he or she died,

a British citizen or a person entitled to reside in Northern Ireland without any restriction on his or her period of residence, or

(iii) if the person was born to parents both of whom were deceased at the time of the person's birth and one of whom was, immediately before his or her death, a British citizen or a person entitled to reside in Northern Ireland without any restriction on his or her period of residence,

(d) a person born in the island of Ireland—

(i) to parents at least one of whom was at the time of the person's birth a person entitled to reside in the State without any restriction on his or her period of residence (including in accordance with a permission granted under section 4 of the Act of 2004),

(ii) if the person was born to parents one of whom was deceased at the time of the person's birth and—

(I) the other parent was at that time, or

(II) the deceased parent was, immediately before he or she died,

a person entitled to reside in the State without any restriction on his or her period of residence (including in accordance with a permission granted under section 4 of the Act of 2004), or

(iii) if the person was born to parents both of whom were deceased at the time of the person's birth and one of whom was, immediately before his or her death, a person entitled to reside in the State without any restriction on his or her period of residence (including in accordance with a permission granted under section 4 of the Act of 2004),

(e) [deals with children of diplomats],

(3) [defines British citizen]."

7. Apart from the above, another route to birthright citizenship is s. 6(3) of the 1956 Act which provides that a child born in the island of Ireland is an Irish citizen from birth if he or she is not entitled to citizenship of any other country. How this provision might interact with UK rules on stateless children for those born in Northern Ireland is an issue for another day. I refer to it for the purpose of drawing attention to the complexity of the rules for birthright citizenship but also, as I will refer to later in this judgment, to demonstrate how some provisions regarding citizenship appear to be made to ensure compliance with international obligations.

8. The International Protection Act, 2015 makes provision for permission for refugees and those entitled to subsidiary protection to reside in the State. Section 2 of the 2015 Act defines a 'qualified person' as "a person who is either—

(a) a refugee and in relation to whom a refugee declaration is in force, or

(b) a person eligible for subsidiary protection and in relation to whom a subsidiary protection declaration is in force".

9. Section 53 of the 2015 Act provides, inter alia, that a qualified person "shall be entitled ... subject to section 54, to reside in the State ...".

10. Section 54 provides:

"54.—(1) A qualified person shall be given a permission to reside in the State for a specified period of not less than 3 years.

(2) A family member shall be given a permission to reside in the State for a specified period of not less than 1 year and, in case of renewal, of not less than 2 years.

(3) A permission given under subsection (1) or (2) —

(a) shall be renewable unless compelling reasons of national security or public order ("ordre public") otherwise require, and

(b) shall cease to be valid where the person to whom it was given ceases to be a qualified person or a family member, as the case may be. ..."

Judgment of the High Court [2024] IEHC 96

11. The primary submission to the High Court on behalf of the appellant was that, at the time of his birth, his mother was entitled, per s. 54 of the 2015 Act, to reside in the State with no restriction on the period of her right to residence. The appellant highlighted the phrase "shall be renewable" which is used when describing the three-year time-limited permission. He submitted that the time period was subject only to a proviso that any concerns regarding national security or public order are absent and assuming the conditions justifying her declaration of subsidiary protection continue (i.e. they continue to be a qualified person). The appellant relied heavily on AJK v The Minister for Defence [2020] IECA 64, [2020] 2 IR 800 ("AJK v Minister for Defence") which counsel submitted was authority for the fact that the appellant's mother had "in effect an open-ended right of residence" and thus her entitlement was not restricted.

12. The High Court refused the relief sought, holding that the right to reside in the State resulting from a grant of subsidiary protection pursuant to s. 54 of the 2015 Act, is for a temporally restricted permission of a period less than 3 years, subject to conditions. While that section ostensibly provides for a mandatory renewal of permission, the High Court found that the renewal was in fact subject to two express possibilities in s. 54(3) of the 2015 Act: the requirement of compelling reasons of national security or public order, or the cessation of a person's subsidiary protection status.

13. The trial judge also rejected the appellant's contention that AJK v Minister for Defence was authority for the proposition that s. 54 established an "open-ended right of residence" for a person with subsidiary protection. Rather, the trial judge found that the dicta of the Court of Appeal (Donnelly J.) in that case must be read in the context of the entire judgment and the matters arising therein, namely, the denial of a person with subsidiary protection to enlist in the Defence Forces. The matter of citizenship or the rights of an Irish-born child of a person with subsidiary protection did not arise therein. The High Court distinguished AJK v Minister for Defence on the basis that while membership of the Defence Forces is revocable for reasons of national security or public order, a right to citizenship by virtue of s. 6A(2)(d)(i) is a status, unlike citizenship by naturalisation, which cannot be revoked by the State.

14. The High Court also rejected the appellant's contention that it was an unlawful exercise of executive power for a Minister to confer a right of unrestricted residence on a person, concluding that it was a matter for the executive to determine whether or not a category of persons to which s. 6A(2)(d)(i) applies should be limited or expanded, subject to the Constitution and EU law.

The Submissions

15. The appellant and the respondent Ministers ("the respondents") both relied on the principles of statutory interpretation set out in Heather Hill Management Company CLG v An Bord Pleanála [2022] IESC 43, [2022] 2 ILRM 313 and A, B & C v The Minister for Foreign Affairs [2023] IESC 10, [2023] 1 ILRM 335. There was no dispute that the ultimate purpose of statutory interpretation is to ascertain legislative intent, which can be gleaned through analysis of the language used having regard to the context and purpose of the statutory provision at issue. The appellant and the respondents both relied upon the historical context of the legislation in support of their construction of the provision and this context will be examined further below.

16. Both parties claim that the plain and ordinary meaning of s. 6A(2)(d)(i) supports their interpretation. Both agree that the relevant time at which the residential permission of the parent must be considered is "at the time of the person's birth". Both also agree that the key issue in this case is the interpretation of the phrase "any restriction on the period of residence" although they disagree on how that is to be interpreted. Both agree that the residence must be lawful residence in the State. The final crucial issue is whether a permission under s. 54 of the 2015 Act is a permission without "any restriction on the period of residence".

17. The appellant draws further conclusions from the legislative provisions as follows:

i. Section 6A(2)(d)(i) expressly includes lawful residence "in accordance with a permission granted under section 4 of the Act of 2004", which was defined as a 'point of entry' permission in Luximon v Minister for Justice & Equality [2018] IESC 24, [2018] 2 IR 542.

ii. The lawful residence must be "without any restriction" and because 'restriction' is not defined in the Act it must be given its plain and ordinary meaning.

iii. The 'period' of residence is also not defined in the Act, and the appellant submitted that temporality forms part of the interpretation of the section.

iv. Related to the foregoing, the appellant submitted that the relationship between the restriction and the period of residence is therefore propositional or conjunctive - the restriction must be on the period of residence rather than the residence itself, and thus the 'restriction' in s. 6A(2)(d)(i) should be interpreted as a temporal limitation. The appellant submits that a function of such a temporal limitation in this context is to exclude a significant majority of non-nationals who lawfully reside in the State as there are very few examples of lawful residence for non-nationals which are not subject to a time limit.

18. The respondents submitted that "without any restriction" in s. 6A(2)(d)(i) does not apply solely to a restriction of time, but to any restriction, including for example one based on personal character or a statutory restriction such as that found in s. 54 of the 2015 Act. 'Without any restriction' is, they submitted, plainly strong in its terms and thus restriction is not limited to a restriction of time, or personal character, or of any other particular category of restriction. They submitted it is expressed as applying at a level of principle to an entitlement which is - as a matter of law and a matter of principle - susceptible to restriction. The Oireachtas chose 'restriction' rather than 'limit'. It cannot be read as only meaning that a person's residence must be limited to a certain number of months or years.

19. The appellant submitted that the respondents' proposed interpretation of s. 54 of the 2015 Act as falling outside the scope of s. 6A(2)(d)(i) of the 1956 Act is absurd. The appellant characterised the respondents' interpretation of the provisions as suggesting that any non-permanent status is a restricted one. The appellant said this cannot be the case, where this interpretation would exclude all non-nationals from availing of s. 6A(2)(d)(i), as there is no permission of residence known to the law which cannot be revoked once granted.

20. The respondents submitted that the foregoing was an incorrect analysis of their submissions. The respondents submitted that it was only where the residence was on its face impermanent that there was a restriction on residence and this could be where the time was restricted or where there was a restriction on the scope or status of the residence. Thus, it was only putatively permanent residence that could come within the subsection. The respondents do not suggest that there are "irrevocable permissions"; even permanent residence given to an EU citizen can be revoked on serious grounds of public policy or public security (see Article 28 of the EU Citizens' Rights Directive (2004/38/EC) and Regulation 20(5) of the European Communities (Free Movement of Persons) Regulations, 2015 (SI 548/2015)). Instead, the respondents submitted that those permanent type of residences come within the subsection. Their argument is that where a permission has either a temporary limitation on its face or it is inherently non-permanent in its genesis, scope, and parameters, then it is not a right of residence without any restriction as to the period of residence.

21. On being asked by the Court for an example of a permission which would qualify under the relevant subsection, counsel for the respondents referred to a Stamp 5 permission but also accepted that a person with such a permission would come within s. 6A(1) of the 1956 Act. The reference to a Stamp 5 permission is a reference to a particular type of 'immigration stamp' that the Department of Justice and the Garda National Immigration Bureau affix to the passports and registration certificates of those persons who are not British nationals or nationals from the EU/other European Economic Area ("EEA") states or Switzerland. A Stamp 5 indicates that the person is permitted to remain in the State indefinitely. These 'stamps' are not directly referenced in any of the immigration legislation and therefore their origin does not derive directly from any statutory provisions. The 'stamps' have been the subject of judicial comment in the case of UM v Minister for Justice as discussed and referenced below.

22. In counter to that argument, counsel for the appellant also referred to the situation of a child of a person with a permanent EU right to residence who would not require s. 6A(2)(d)(i) to qualify because the person is time qualified under s. 6A(1) of the 1956 Act. Indeed, the appellant submitted that the children of all those entitled to indefinite permissions would be entitled to citizenship on the basis of reckonable residence of the parent, highlighting that 'indefinite' or 'permanent' Stamp 5 permissions are only granted after 8 years residence in the State. This, counsel for the appellant submitted, would render the provision at issue nugatory if it did not apply to the very specific situation of those entitled to international protection who had a renewable right of residence after three years. Those entitled to international protection were, it was submitted, a clear category of persons who would come within this qualification while not necessarily also having reckonable residence.

23. The appellant again highlighted the term "period" in the legislation, in submitting that the respondents' interpretation ignores the reference to a "period" which must be restricted and instead seeks to submit that the residence permission is what should be assessed for restriction rather than the period of the residence permission. The appellant analysed the three ways in which a subsidiary protection status can be lost: by way of a grant of citizenship by naturalisation, by cessation pursuant to s. 11 of the 2015 Act, or by revocation pursuant to s. 54(3)(a) of the 2015 Act (a provision in line with the Convention and Protocol Relating to the Status of Refugees and with European Union law). The appellant highlights that all three of these methods of removing international protection involve some positive step, usually involving a rigorous scrutiny of circumstances, to be taken by the Minister for Justice wholly independently from any action which may be taken by the qualified person. There must also be an examination as to whether s. 50 of the 2015 Act, a provision prohibiting refoulement, is applicable where subsidiary protection is to not be renewed, as s. 50(5) may provide for a permission to reside even where cessation or exclusion did occur. The prohibition of refoulement would apply even where the appellant's mother failed to apply to renew her subsidiary protection declaration or failed to register her permission pursuant to s. 9(2) of the Immigration Act, 2004.

24. The appellant submitted that permission to reside under s. 54 is not time-limited and constitutes a long-term permission to reside thus meeting the requirements of s. 6A(2)(d)(i). The appellant submitted that the High Court erred in finding that the appellant's mother's period of residence was restricted due to the wording of s. 54(1) which states that a qualified person has permission to reside for a period "not less than 3 years". Taking the phrases "not less than 3 years" and "shall be renewable" (s. 54(3)(a)) together, while the residence permission may appear to be temporally limited it is in fact open-ended with no upper limit or foreseeable expiry.

25. The appellant also relied upon AJK v Minister for Defence but the respondents replied by submitting that the High Court justifiably distinguished that case.

26. The respondents submitted that the residence permission is granted under s. 54 of the 2015 Act, which said section transposes Article 24 of the Qualification Directive (2004/83/EC) on residence permits. The respondents submitted that there is a distinction between the grant of subsidiary protection and the permission to remain which derives from it; however, if the former ceases, so also does the entitlement to the latter. The respondents cited s. 11 and s. 52 of the 2015 Act as illustrating that the cessation or revocation of subsidiary protection status is not automatic where circumstances in the country-of-origin change. Counsel highlighted that the protection afforded is only intended to last for the period for which it is required (even where those circumstances may never cease). Thus, counsel submitted, international protection has both a surrogate and non-permanent nature (MAM v Minister for Justice and Equality [2020] IESC 32, [2020] 3 IR 50, HTK (A Minor) v Minister for Justice [2016] IEHC 43) citing the opinion of Advocate General Mazák in Case C‑175/08 Abdulla ECLI:EU:C:2010:105 as authority that even refugee status is "not, in principle, a permanent status".

27. The respondents referred to the other categories of persons provided for in s. 6A(2) and submitted they were those with a citizen parent or some other permanent and non-contingent link with the State, and so their legal status is fundamentally less provisional than that of persons who have been granted subsidiary protection. They also reiterated that differentiation between citizens and non-citizens is justified by the difference in their status (NHV v Minister for Justice [2017] IESC 25, [2018] 1 IR 246) including those with subsidiary protection.

Discussion

28. Central to this appeal is the meaning of the phrase any restriction on the period of residence contained in s. 6A(2)(d)(i) of the 1956 Act. The appellant has argued his case by submitting that the provisions of the 2015 Act gave an open-ended or unrestricted permission to his mother to reside in this jurisdiction. Logically however, the question of whether he comes within s. 6A(2)(d)(i) of the 2015 Act depends in the first place on the correct interpretation of the crucial phrase in that subsection: any restriction on the period of residence. The correct interpretation must depend upon the context in which it was enacted and the purpose for which it was enacted. After the correct interpretation of the sub-section is identified, I will then consider whether the mother's status, at the time of the appellant's birth, was that of a person who was entitled to reside in the State without any restriction on her period of residence having regard to the terms of the 2015 Act. The considerable reliance placed by the appellant on AJK v Minister for Defence will also be addressed.

29. It is also appropriate to note that, as the law stands, birthright citizenship gives a greater right to an individual than citizenship by naturalisation. Most importantly, citizenship by naturalisation can be lost in a variety of ways, for example through fraud or misrepresentation (whether innocent or fraudulent) or through failure in a duty of fidelity to the State or through continuous residence for seven years outside of the State without following certain procedural requirements. The appellant submits that this should not affect the interpretation of the subsection while the respondents suggests that because it is a valuable right it must be strictly construed. The High Court judge did not have regard to that aspect and in my view, she was correct in so doing. No principle of statutory interpretation which might require strict construction when conferring a right was referred to in submissions and I do not see any basis for holding so in this case.

30. Furthermore, on behalf of the appellant it was submitted that the fact that he was (now) entitled to citizenship by naturalisation ought to make no difference to the interpretation. I agree. Birthright citizenship and citizenship by naturalisation are different and the provisions regarding each one must be given its correct interpretation.

Section 6A in its Historical Context

31. The history behind the enactment of the Irish Nationality and Citizenship Act, 2004 was addressed by O'Donnell CJ. in UM (A Minor) v the Minister for Foreign Affairs [2022] IESC 25, [2023] 1 ILRM 24 ("UM v Minister for Foreign Affairs") at paragraphs 3, 4 and 5. His synopsis is apposite and, in so far as relevant to this appeal, states:

"3. ... Article 9.1.1° of the 1937 Constitution provided that any person who was a citizen of Saorstát Éireann on the coming into force of the Constitution would become a citizen of Ireland. Article 9.1.2° provides that the future acquisition and loss of Irish nationality and citizenship should be determined in accordance with law. In 1998, the Constitution was amended as part of the circumstances relating to the adoption of the Good Friday Agreement and Art. 2 of the Constitution was amended to provide that it was the entitlement and birth right of every person born in the island of Ireland to be part of the Irish nation. However, later again, in 2004, in circumstances explained in Kelly: The Irish Constitution, 5th edn (Bloomsbury Professional, 2018) at para.3.3.02, Article 9.2 was amended to provide that:-

'a person born on the island of Ireland, which includes its islands and seas, who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen or entitled to be an Irish citizen is not entitled to Irish citizenship or nationality, unless provided for by law'.

...

4. The relevant law is that contained in s. 6 of the Irish Nationality and Citizenship Act 1956 ("the 1956 Act") as amended by the provisions of the Irish Nationality and Citizenship Act 2004. The 1956 Act provided, reasonably simply, that 'every person born in Ireland is an Irish citizen from birth'. However, in 2004, s. 6 was amended to provide that 'Subject to section 6A (inserted by section 4 of the Irish Nationality and Citizenship Act 2004), every person born in the island of Ireland is entitled to be an Irish citizen.'

5. Section 6A, to which the entitlement set out at s. 6 was expressly made subject, was also inserted by the 2004 Act, and provided for a parental residency requirement ..."

32. O'Donnell CJ. then set out the provisions of s. 6A and discussed the exclusions thereto. The original provision giving birthright citizenship to those born in Ireland - s. 6 of the 1956 Act - was a statutory one. After the 1998 amendment to the Constitution, that provision was the statutory reflection of the constitutionally conferred birthright citizenship to all those born in the island of Ireland. Following the 2004 amendment, the legislative response was to keep the general provision for birthright citizenship for those born in the island but to make it subject to the primary exception that at least one parent has a reckonable period of residence in the State. Importantly, this 'exception' was itself subject to 'exclusions' such as having, at the time of the birth, at least one parent who was an Irish citizen, a British citizen or, as is relevant to this appeal, a person entitled to reside in the State without any restriction on his or her period of residence including in accordance with the permission granted under s. 4 of the Immigration Act, 2004.

Policy Choices and Compliance with International Law

33. Apart from implementing the constitutional imperative under Article 2 of the Constitution of the right to Irish citizenship of those born in the island to an Irish citizen or person entitled to Irish citizenship, the 2004 Act represented a policy choice by the legislature to grant birthright citizenship in certain other circumstances but not to grant it in relation to everyone born in the island of Ireland. Some of the choices were perhaps constrained by international obligations such as the obligation of this State under the UN Convention on the Reduction of Statelessness to grant citizenship to those born in its territory who would otherwise be stateless. Moreover, the respondents submitted - correctly in my view - that the law provides that the courts will strive, if possible, to ensure that Irish implementing legislation is interpreted in a manner consistent with international law obligations undertaken by Ireland. The respondents relied upon the British-Irish Agreement under the Good Friday Agreement as a relevant aspect of our relationship to the United Kingdom and especially to Northern Ireland. This relationship has a very particular historic and political resonance, but it is also, they submit, a relationship between two sovereign states who are party to many multi-lateral as well as bi-lateral international agreements. This argument concerning the British-Irish Agreement will be dealt with in further detail below.

34. Subject to any constraints that may or may not arise from the British-Irish Agreement, the State was not constrained by membership of the EU or by any other international agreement to grant birthright citizenship to the children born in the island (or even in the State) to those who are entitled to refugee status or subsidiary protection. This was a policy choice by the legislature. In so far as it was a policy choice, it is difficult to accept the respondents' argument that their interpretation (i.e. that it excludes children of refugees from birthright citizenship) is compelled by reference to how the other paths to birthright citizenship are driven by close links to the jurisdiction. Refugees too will often have close ties to the State, having lived here for perhaps many years prior to obtaining the declaration of status, and they rely on the State for protection, so equally the legislation may have reflected a policy choice to give their children automatic birthright citizenship when born in the island. In my view, the closeness or lack of closeness of links to this island is such a subjective assessment that it is of no particular assistance in determining the meaning of this provision.

Section 6 and the Legislative Context

35. The starting point for construction of the 1956 Act is the plain and ordinary meaning of the words of the section in their context within the Act and also within the wider context of the Act at the time of its enactment. Therefore, the existence now of a particular immigration scheme (for a list of extant schemes in 2017 see Appendix D in John Stanley, Immigration and Citizenship Law, Round Hall 2017) cannot be relevant to the interpretation of the amendments brought about by the 2004 Act, although the variety of these schemes is an indication of the breadth of the power exercised by the executive in immigration matters. The existence of certain schemes or statutory rules at the time of its enactment does however give context for its interpretation. The appellant submits that, unless he qualifies, there would be no other immigration scheme that would come within the exclusion at s. 6A(2)(d)(i) only. This argument will be dealt with below.

36. Apart from the 1998 and 2004 amendments to the Constitution, two (then) existing pieces of legislation were relevant to the enactment of the 2004 Act and are mentioned in the provisions of the 2004 Act. The first is the Refugee Act, 1996 ("the 1996 Act") and the second is the Immigration Act, 2004 which was enacted shortly before the Irish Nationality and Citizenship Act, 2004.

The Refugee Act, 1996

37. The 1996 Act provided for the recognition of refugee status by way of a declaration made by the Minister for Justice. It was not until the adoption of the European Communities (Eligibility for Protection) Regulations, 2006 (SI 518/2006) ("the 2006 Regulations") which gave effect to the Qualification Directive that the concept of subsidiary protection was recognised in the law of the State. Section 16 of the 1956 Act as amended by the Irish Nationality and Citizenship Act, 1986, gave the Minister power to grant an application for a certificate of naturalisation even though the conditions for that naturalisation were not yet complied with, where, inter alia, the person was a refugee. This would appear to be an acceptance by the legislature that refugees may have close links with the State over and above the links of other migrants and thus would contradict the respondents' submissions concerning the absence of such close links by refugees. Neither s. 16 nor any other section of the 1956 Act, was amended to provide for the situation of those with subsidiary protection.

38. Section 17 of the 1996 Act provided for the circumstances where the Minister shall give to an applicant a statement in writing declaring that the applicant is a refugee. Section 3(a)(iii)(I) of the 1996 Act provided that, subject to s. 17(2), a refugee in relation to whom a declaration was in force "shall be entitled ... to reside in the State". This period, unlike that in s. 54 of the 2015 Act, was not, on its face, subject to a temporal restriction to the period of residence. Furthermore, it refers to a right to reside rather than a permission to reside. There were, however, two statutory paths through which the entitlement of a declaration of refugee status may come to an end.

39. Section 17(2) provided that, if the Minister considered that it was in the interests of national security or public policy ("ordre public"), he or she may by order provide, inter alia, that s. 3 shall not apply to the person, and require the person to leave the State. That is similar to the provisions in s. 54 of the 2015 Act and indeed to those in the EU Citizens' Rights Directive and the Regulations made thereunder (see below). Section 21 of the 1996 Act provided that the Minister may revoke the declaration in circumstances where, inter alia, the person voluntarily re-availed himself or herself of the protection of the country of his or her nationality, has voluntarily re-established himself or herself in the country which he or she left or outside which he or she remained owing to fear of persecution, is no longer to be recognised as a refugee because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, is a person whose presence in the State poses a threat to national security or public policy ("ordre public"), or, is a person to whom a declaration has been given on the basis of false or misleading information. Similar provision is also made in the 2015 Act.

The 2006 Regulations

40. At the oral hearing, counsel for the respondents referred to the 2006 Regulations. Obviously, these were not in force at the time the amendments to the 1956 Act were brought about through the enactment of the 2004 Act. Nonetheless, they form part of the overall development of residence rights of those entitled to international protection up to the time of the 2015 Act.

41. Regulation 17 of the 2006 Regulations provides that a person granted a declaration under the 1996 Act "shall be granted permission to remain in the State for three years". That is similar to the provision set out in the 2015 Act. There was a significant difference between the right to residence in the original 1996 Act and that contained in the 2006 Regulations.

42. The foregoing reveals that for a person receiving a declaration of refugee status under the 1996 Act up to the commencement of 2006 Regulations (10 October 2006), their right to reside in the State was not on its face subject to any definitive time limit. While their right of residence continued indefinitely, the right was contingent on certain matters. It could be ended when an order was made under s. 17(2) on grounds of national security or public policy. Under s. 21, the continued entitlement to the declaration could be brought to an end by the Minister for Justice on general grounds relating to the lack of continued need for the protection granted by the declaration or on the basis that the recipient had provided false and misleading information which was material.

43. It is certainly arguable that during the period from the commencement of the 2004 Act (1 January 2005) up to the commencement of the 2006 Regulations (10 October 2006) a refugee was a person who did not have "any restriction on the period of their residence" because their period of residence was indefinite on its face. If that is the correct interpretation it would mean that at the time the 2004 Act was enacted, there was an identifiable set of persons (declared refugees) who would fit the s. 6A(2)(d)(i) criteria for parents but who would not fit into any other subsection which would grant their children born in the island birthright citizenship. To reach a conclusion that it was only children of such pre-2006 declared refugees who had birthright citizenship is not supported by either party to this appeal. The appellant argues for a wider interpretation and the respondents for a narrower one.

44. One further change to the status brought about by the 2006 Regulations was that the Minister was now required to revoke permission to remain in the State should the appropriate circumstances arise; Regulation 14 uses the phrase "shall revoke or refuse to renew".

The Immigration Act, 2004

45. The Immigration Act, 2004 was enacted and commenced on 13 February 2004 and was therefore in force on the date of the enactment on 15 December 2004 of the Irish Citizenship and Naturalisation Act, 2004. The Immigration Act, 2004 permitted an immigration officer, on behalf of the Minister for Justice, to give to a non-national a permission to be in the State. Section 5(1) of that Act as originally enacted provided that "no non-national may be in the State other than in accordance with the terms of any permission given to him or her before the passing of this Act, or a permission given under this Act after such passing, by or on behalf of the Minister." The words underlined were substituted by the 2015 Act for the words, "given to him or her". This amendment would appear to be a recognition that not all permissions to reside in the State are granted under s. 4 of the Immigration Act, 2004. That amendment was perhaps unnecessary in light of the decision in Sulaimon v Minister for Justice, Equality and Law Reform [2012] IESC 63 ("Sulaimon") to the effect that the Act recognised that the Minister may grant a permission and that the Act does not prescribe any particular formality for such permission.

46. The appellant in the present appeal, in arguing that he had a statutory right to a residence permission, submitted that the Stamp 4 and Stamp 5 permissions were administrative in nature and did not amount to permissions under the Immigration Act, 2004. Counsel for the respondents made the case that some rights to reside were statutory in nature and referred to submissions made in that regard in the case of UM v Minister for Foreign Affairs. Thus, the respondents submitted, the legal basis for the permission to reside in that case was s. 3 of the 1996 Act and as a result the Stamp 4 permission did not find its legal basis in the context of the exercise of a statutory or non-statutory discretion. That submission finds support in UM v Minister for Foreign Affairs where Dunne J. said that it did seem "to be correct that the permission for someone in the position of MM flows from the provisions of s. 3 of the 1996 Act, and the fact that he was the holder of a declaration of refugee status, and that he had duly registered with [Garda National Immigration Bureau]". Dunne J. said that the Stamp 4 automatically issued once the declaration was granted and is in force.

47. UM v Minister for Foreign Affairs concerned the effect on the entitlement to citizenship of a child of a person whose refugee status is subsequently revoked because of false and misleading statements which had been made to gain the status. It appears from the judgment that the refugee declaration was made in the period before the 2006 Regulations entered into force and thus s. 3 of the 1996 Act was relevant. It is also noted that the child in the UM v Minister for Foreign Affairs had not claimed birthright citizenship on that basis; he had claimed it on the basis of the qualifying time provisions under s. 6A(1).

48. By virtue of s. 5(1) of the Immigration Act, 2004, 'non-nationals' (within the statutory meaning of non-national), may not be in the State other than in accordance with the terms of any permission given by or on behalf of the Minister for Justice. That section does not apply, inter alia, to a refugee who is the holder of a declaration of refugee status under the 1996 Act. The exemption to s. 5(1) has never been extended to a holder of subsidiary protection. Under s. 4(7) a permission may be renewed or varied by the Minister or on his or her behalf by an immigration officer and since the amendment by s. 4(a) of the Court and Civil Law (Miscellaneous Provisions) Act, 2023 ("the 2023 Act"), the permission can be so varied or renewed whether or not an application is made by the non-national concerned. Prior to that the non-national had to apply for variation or renewal.

49. Certain periods of residence in the State are not however reckonable for the purpose of calculating a period of residence as understood by the 1956 Act: Section 6B(4) of the 1956 Act, inserted by the 2004 Act, states that:

"A period of residence in the State shall not be reckonable for the purposes of calculating a period of residence under section 6A if–

(a) it is contravention of section 5(1) of the Act of 2004,

(b) it is in accordance with a permission given to a person under section 4 of the Act of 2004 for the purpose of enabling him or her to engage in a course of education or study in the State, or

(c) It consists of a period during which a person ... referred to in subsection (1) of section 16 of the International Protection Act 2015 (a person referred to in s. 9(2) of the 1996 Act as originally enacted) is entitled to remain in the State in accordance only with the said subsection." (Emphasis added).

50. The respondents' submission in UM v Minister for Foreign Affairs was that the right to reside came from s. 3 of the 1996 Act. The respondents' submission in this case is similar in that the right to a permission to reside comes from s. 53 of the 2015 Act but is subject to s. 54 of that Act. The right to a permission to reside comes from the statutory provision concerning refugee/international protection status whereas the permission to reside is ultimately one that is granted under the Minister's powers, although the Minister appears bound by s. 53 to grant that permission (unless entitled not to do so on the basis of s.54 of the Act). In Sulaimon, O'Donnell J. (as he then was) said that where the Minister has granted a permission it is not appropriate for the passport to be inscribed by an immigration officer with details of a permission pursuant to s. 4(1) of the Immigration Act, 2004. Where the permission has been granted by the Minister, then the immigration officer's role is merely secretarial in recording that decision and the immigration officer would not then have the possibility of exercising a discretion under s. 4(1) to refuse such a permission.

51. The relationship between the declaration, the requirement to register and the grant of permission was, unsurprisingly, described by Dunne J. "as somewhat confusing". Perhaps s. 54 of the 2015 Act is clearer than the original provisions of s. 3 of the 1996 Act, when it refers to being given "a permission to reside" rather than "a right to reside". That permission, although not stated in that Act, must be a permission granted by the Minister. That would imply that the taking of steps to acquire a permission (or to grant one under the 2023 Act which does not require an application) is necessary to ensure that the full panoply of rights available to those with permission to reside is available to those who hold a declaration of subsidiary protection. This is because s. 5 of the Immigration Act, 2004 has the added complication in that it does not exempt holders of subsidiary protection from the requirement to be in the State with a permission. There may be a period where such persons may be 'unlawfully' in the State if their permission has ceased and for administrative reasons has not been renewed. Again, that is not an issue that arises in this case, but it demonstrates that for holders of subsidiary protection at least, even reckonable period of residence may be affected by gaps in obtaining permission to reside. For the purposes of this appeal, it demonstrates that identifying what "period of residence" is at issue is legally and factually complicated by its interaction with the Immigration Act, 2004.

52. As stated above, when the 2004 Act was commenced, refugees were entitled to reside in the State as of right. On its face this was arguably for an indefinite nature, in the sense of having no defined ending, but it was a right that was nonetheless subject to the specific statutory restrictions on that very entitlement to refugee status contained in s. 17(2) and s. 21 of the 1996 Act. Under s. 17(2), the right could cease when the conditions had changed for which the declaration of refugee status had been made for and procedural rights were complied with. Section 21 did not provide for an automatic revocation of the status even where the conditions were met.

Status and Rights of Residence

53. In support of his contention that the restriction in s. 6A(2)(d)(i) was to apply to a restriction on any aspect of the period of residence, counsel for the respondents used words such as putatively permanent to describe the kind of situation where no such restriction existed, although no such phrase is found in the said subsection. An example of a putatively permanent situation is, counsel submitted, where a citizen of another EU member state had acquired the right to permanent residence in this jurisdiction pursuant to Article 16 of the Citizens' Rights Directive and the 2015 Regulations. Counsel referred to the difference in status between various rights of residence granted to nationals of an EU/EEA member state exercising free movement rights in this jurisdiction. If the person is a worker or self-employed and fulfils other conditions, they are entitled to reside in the State. If, at the end of five years, the person continues to be a worker or self-employed person, they are then entitled to permanent residence which is not subject to the conditions (such as worker status) that were previously required for the purpose of the right of residence. Once acquired, permanent residence can only be lost for a quite limited set of reasons. One is through absence from the host member state for a period exceeding two consecutive years. EU nationals with permanent rights of residence may be subject to expulsion (a removal order) but only on serious grounds of public policy or public security: see Article 27 of the Directive. For those persons with only an initial right to reside for up to five years where the right is dependent on the status of the person, the respondents say such persons would not come within s. 6A(2)(d)(i), whereas the person who has permanent residence does come within it because their period of residence is without any restriction.

54. No other group of non-Irish citizen lawful residents was identified by the respondents, either in the evidence before the High Court or in submissions to this Court, that would have fit only the category set out in s. 6A(2)(d)(i) and not any other one. For example, an indefinite stamp in the passport (Stamp 5) was only granted after 8 years residence and thus such a person would have reckonable residence for their children to have birthright citizenship under s. 6A(1) of the 1956 Act. For reasons which I shall explain later, it is possible that a person with EU permanent residency rights may perhaps not qualify under the reckonable period but could be a person who had no restriction on their right of residence.

55. The submission of the respondents, however, was that the phrase 'any restriction on the period of residence' had a wider meaning than merely without temporal restriction. What made the difference was whether there was a facial constraint on the period whereby the period of residence was subject to conditions which rendered the period of residence contingent. Thus, the issue was one of the permanent or impermanent nature of the residence of the person. If there was, at law, a restriction on the nature or on the face of the residence then this was a restriction on the period of residence. Refugees were so 'facially' restricted because their status was inherently a temporary one. It was not simply that they could have their right to reside subsequently taken from them by a decision on the basis of national security or public policy, rather their status was inherently of a temporary nature because, if the conditions changed in the place from which they came, and protection was no longer needed, their status as a refugee could be revoked. It was, counsel submitted, immaterial that such a change could only come about after a procedurally fair process.

The British-Irish Agreement and Equivalence with the British Nationality Act, 1981

56. Counsel for the respondents referred to s. 1(1) and s. 50(2) of the British Nationality Act, 1981 which provide for acquisition of nationality by birth to a person settled in the UK and that a person shall be regarded as so settled where they are ordinarily resident there "without being subject under the immigration laws to any restriction on the period for which he may remain". The child of a person who comes within that clause has birthright citizenship if born within the UK (subject to some irrelevant exemptions). Counsel relied on the interpretation of this clause by the UK courts to support the contention that where the residence was conditional the period of residence was restricted. Reliance on the UK position, counsel submitted, was appropriate for two reasons:

A) That the Irish Act and the British Act should be given the same meaning because they were both implementing the Belfast Agreement and/or,

B) It was persuasive material.

57. Counsel for the respondents' first argument was that the Explanatory Memorandum to the 2004 Act which inserted the s. 6A(2) provisions suggested that the legislative intention was to put in place criteria for citizenship consistent with the British-Irish Agreement (part of the Belfast Agreement) and to ensure "also that to the greatest extent possible the conditions for acquiring an entitlement to Irish citizenship deriving from place of birth are similar north and south" (emphasis added). At the Court's request further submissions were made on the use of an Explanatory Guide as a guide to the legislation, although the respondents accept that it is "not a definitive legislative guide of itself". They submitted that they can be considered as evidence of the context in which legislation was enacted and they refer to People (DPP) v Brown [2018] IESC 67, [2019] 2 IR 1 ("Brown"). The Supreme Court (McKechnie J.) in Brown referred to the explanatory memorandum in the context of what might be looked at if there is an ambiguity. The respondents clarified that this was not their primary submission which remained that the plain and unambiguous meaning was as they had submitted.

58. In my view, the specific references to residence in Northern Ireland, as distinct from the United Kingdom, in the amendments made by the insertion of the new s. 6, s. 6A and s. 6B, support the contention that the exemptions were designed with a view to ensuring that, in a much as possible, entitlement to birthright Irish citizenship was to be equivalent throughout the island of Ireland. Whether any provisions of UK law actually distinguish between rights of residence granted to immigrants in different parts of the UK was not addressed before us and it may not be relevant because residence in Northern Ireland would be a matter of fact to be established in the first place and the nature of that residence could then be considered. Given the history of this island, the high importance of the 1998 Amendment to the Constitution and the subsequent 2004 Amendment to the Constitution, it cannot be doubted that the British-Irish Agreement formed part of the context of the enactment of the 2004 Act amending the 1956 Act.

59. Significantly, the provisions of the Agreement make direct reference as to who may qualify as 'the people of Northern Ireland' and they represent a direct link to the insertion of this particular provision in the 2004 Act. The phrase "without any restriction on his or her period of residence" is found in Annex 2 to the British-Irish Agreement as follows:

"The British and Irish Governments declare that it is their joint understanding that the term "the people of Northern Ireland" in paragraph (vi) of Article 1 of this Agreement means, for the purpose of giving effect to this provision, all persons born in Northern Ireland and having, at the time of their birth, at least one parent who is a British citizen, an Irish citizen or who is otherwise entitled to reside in Northern Ireland without any restriction on their period of residence".

Article 1 (vi) recognised "the birthright of all the people of Northern Ireland to identify themselves and be accepted as British or Irish, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland".

60. Article 29.7.1° of the Constitution expressly permits the State to consent to be bound by the British-Irish Agreement.

61. As, subsequent to 2004, birthright citizenship was no longer applicable to all who were born in the island of Ireland, it is part of the context that Irish citizenship by birth would continue to reflect the State's particular interest in ensuring those born in Northern Ireland were entitled to Irish citizenship on, in so far as possible, an equivalent basis. In my view, even without the explanatory guide, it is apparent from the wording, context and purpose of the 2004 Act, that the Oireachtas was legislating for equivalence of qualification for birthright Irish citizenship to those born to a parent entitled to reside in Northern Ireland (but who were not Irish or British citizens) and those born to a parent entitled to reside in this State (but who were not Irish or British citizens). The legislature did so by picking the same phrase, namely: "a person entitled to reside [in Northern Ireland per s. 6A(2)(c) and in the State per s. 6A(2)(d)] without any restriction on his or her period of residence"; a phrase with a clear and obvious link to the British-Irish Agreement.

62. A direct reference to that equivalence is to be found in s. 6B(5) which deals with how periods of residence in Northern Ireland are to be calculated for the purpose of being reckonable under s. 6A of the 1956 Act. It will be recalled that s. 6B(4) deals with reckonable periods of residence in this State. Immediately thereafter s. 6B(5) provides that:

"A period of residence in Northern Ireland shall not be reckonable for the purposes of calculating a period of residence under section 6A—

(a) if—

(i) the person concerned is not during the entire of that period a national of a Member State, an EEA state or the Swiss Confederation, and

(ii) the residence of the person concerned in Northern Ireland during that period is not lawful under the law of Northern Ireland,

(b) if the entitlement of the person concerned to reside in Northern Ireland during that period is subject to a condition that is subject to a condition that is the same as or similar to a condition which, if applicable in respect of an entitlement to reside in the State, would, by virtue of subsection (4), render a period of residence in the State pursuant to such an entitlement not reckonable for the purposes of calculating a period of residence under the said section 6A."

63. That subsection is therefore dealing with the calculation of periods of time. The first point of note is that subsection (a) has no applicability to non-EU/EEA/Swiss Confederation nationals. That 'omission' is explicable because at s. 6B(2), provision has already been made for the making of declarations by EU (non-British)/EEA/Swiss Confederation nationals as to the period of time in which they had been residing in the island of Ireland. Section 6B(2) provides the means for establishing reckonable residence for those nationals in circumstances where this State does not require residence permits for those nationals to have lawful residence in the State. British nationals were already excluded from the necessity to prove reckonable residence under s. 6A(2)(c). Subsection (b) of s. 6B(5), provides for an equivalence with s. 6B(4); in essence providing for the exclusion, from the reckonable residence, of the situation where the entitlement to reside in Northern Ireland is pursuant to a permission but that permission is for study/education or was for the purpose of seeking asylum i.e. international protection.

64. Subsection 6B(4) applies to the calculation of periods of residence in this State and therefore is not directly addressed to the meaning of "without any restriction on his or her period of residence". Of note in the equivalent sub-section for the calculation of periods of residence in Northern Ireland, is that it may involve a very direct consideration of whether a period of residence was lawful under the law of Northern Ireland. That would appear to necessitate the Minister (and ultimately the courts if called upon to do so) making a decision as to what the law in Northern Ireland provided and whether the person's residence there was lawful. That would necessitate a consideration of the law of Northern Ireland and in court proceedings would necessitate proof in the usual manner by way of an Affidavit of Laws.

65. There is no such express provision as to how to interpret whether a period of residence in Northern Ireland was without any restriction as provided for in s. 6A(2)(c)(i) of the 1956 Act, but that is because there is no further explanation as to how the same phrase in s. 6A(2)(d)(i) is to be interpreted in this jurisdiction. Of itself, that could support the argument that the wording is sufficiently clear so as to need no further explanation. Furthermore, it does not take away from the fact that the intention of the Oireachtas was nonetheless to seek equivalence in qualification between the two jurisdictions.

66. Although the Court can justifiably recognise that there was an intention to have an equivalence in qualification between Ireland and Northern Ireland, the Court must be careful not to cede its authority as the sole judicial power capable of interpreting an Act of the Oireachtas. Therefore, it is necessary that the meaning of s. 6A(2)(c)(i) is determined in accordance with the law in this jurisdiction rather than by a meaning determined by the courts of the United Kingdom. Thus, while UK law may be persuasive authority in seeking the correct interpretation of the legislation, it cannot be determinative of that meaning where, on the application of the principles of statutory interpretation, the legislation does not bear the same meaning as that which is applied in the United Kingdom. Furthermore, and separately, if the respondents sought to introduce the case-law as evidence of the law of the UK, they ought to have followed the rules of evidence for the establishment of foreign law. They did not produce an Affidavit of Laws and therefore the case-law can only be looked at as persuasive authority. How persuasive the case-law is will be addressed after further consideration of it.

67. The respondents relied upon R (Roehrig) v Secretary of State for the Home Department [2024] EWCA Civ 240 ("Roehrig") in which an earlier authority was relied upon to reject the applicant's case. In Roehrig, the Court of Appeal of England and Wales dealt with an application by a man for birthright citizenship based upon his mother's residence in the UK as a 'worker' and therefore a 'qualified person' pursuant to EU Treaty provisions and the relevant Regulations. On 22 July 2024, the Supreme Court of the United Kingdom refused permission to appeal on the ground that the appeal does not raise an arguable point of law.

68. In Roehrig, the legal position was that the mother could only be regarded as settled for the purpose of bestowing birthright citizenship if she was ordinarily resident in the UK "without being subject under the immigration laws to any restriction on the period for which he may remain". At the time of his birth, the appellant's mother was a qualified worker and would have been entitled to apply for a residence permit which would have given her permission to remain in the UK indefinitely. She would have obtained that permission on production of the correct documentation showing that she was a qualified person within the regulations, in her case a worker.

69. At this point it may be helpful to highlight that the Citizens' Rights Directive gave EU (and EEA) citizens the right to reside in other member states of the EU/EEA for more than three months if they were workers or self-employed persons or comply with certain other conditions. These rights continued so long as those people continued to meet the conditions. Those persons who had continuous legal residence for at least five years in the host member state were entitled to the right to permanent residence in that state. The right to reside in the first five years was subject to conditions but a person entitled to permanent residence had no such conditions and had greater protections against expulsion. A person with permanent residence rights could only be expelled on serious grounds of public policy or public security.

70. The Irish Regulations implementing the Citizens' Rights Directive do not require EU citizens to have a particular stamp on their passport or to be in possession of a residence card to be lawfully in the country (see European Communities (Free Movement of Persons) Regulations 2015 (SI No. 548/2015)). Under Regulation 12, an EU citizen is entitled to remain permanently in the State if they have resided in the State in conformity with the regulations for a continuous period of 5 years. Under Regulation 14, an EU citizen who is entitled to remain permanently in the State may apply to the Minister for a permanent residence certificate. Nothing in the Regulations appears to require an EU resident to have such a permanent residence certificate. It is, however, unnecessary to determine this issue for the purposes of this judgment (and it is noted that in the High Court decision in Roehrig, it is recorded that the relevant UK Regulations and Rules required an application for a residence permit to be made). The finding in Roehrig, that the parent had to have been granted the right to indefinite leave to remain before they could be said to be without any restriction on the period for which they could remain, is not directly at issue in this appeal. Thus, for the avoidance of doubt, this judgment does not decide that it is only those EU citizens who have acquired a permanent residence certificate that are entitled to grant birthright citizenship to their children born in this island. That may be a question for another day.

71. In Roehrig, the applicant's claim was made and rejected on two grounds. Only the second ground is relevant. It was based upon the same argument as that made on behalf of this appellant; that the section only concerned restriction on the time duration of the residence. The Secretary of State argued to the contrary, submitting that in line with precedent, "the fact that a person can move from one form of EU right of residence to another does not change the fundamentally contingent, impermanent nature of those EU rights".

72. The Court of Appeal of England and Wales agreed with the submission on behalf of the Secretary of State that "there is a qualitative difference which attaches to indefinite leave to remain or permanent residence as an enduring right for which only a positive step to end will suffice, for example being absent from the UK for a continuous period of two years, as opposed to a contingent right to remain dependent upon objective circumstances which maintain it, for example by continuing to be a 'worker'". The Court of Appeal followed its previous decision in R (Coomasaru) v Immigration Appeal Tribunal [1982] EWCA Civ J1015-4 ("Coomasaru") - a decision given shortly after the coming into force of the British Nationality Act, 1981 - which concerned an identical phrase in earlier legislation, saying that "[i]t is plainly right that a 'period' is not referrable to time but may also be qualified by circumstances." The Court went on to say that limited leave to enter or to remain in the UK could be made subject to time period and condition and these were not mutually exclusive concepts. They observed that the statute refers to 'period' not 'period of time' and that "[t]he ordinary meaning of 'period' does not require to have a temporally defined start and end". The mother in the exercise of her enforceable rights of free movement "was not constrained to a period of time measured by the calendar, rather the constraint was measured by a continuation of her status". It should also be said that in its decision on the appeal in Roehrig, the Court of Appeal referred approvingly to the trial judge's decision. That decision was also opened to this Court.

73. From the law as set out in the UK case, it is apparent that the phrase used in s. 6A(2)(c) and (d) in the 1956 Act is relatively similar to the phrase used in the British Nationality Act, 1981. The 1981 Act provides that the children born in the UK to those entitled to residence without any restriction on the period that they may remain, are entitled to birthright citizenship. It is also highly significant that this phrase was used in the British-Irish Agreement and was then used in the 2004 Act which amended the 1956 Act. Moreover, at the time of the enactment in 2004 of the amending legislation, both this State and the UK were members of the European Union. While the bestowal of citizenship is not governed by EU law, it is relevant in considering the persuasiveness of this decision, that rights of residence for EU/EEA nationals would have been common in both jurisdictions.

74. Moreover, it cannot be ignored that the Minister for Foreign Affairs and ultimately the courts of this State may be called upon to interpret the meaning of "a person entitled to reside in Northern Ireland without any restriction on his or her period of residence" for the purpose of assessing whether a child born in Northern Ireland is entitled to birthright citizenship. In so far as that arguably involves a decision on what exactly is the relevant law of Northern Ireland (and how it applies to the parent's residence), that would necessitate an Affidavit of Laws (in compliance with evidence laws on the meaning of foreign law) about the entitlement in that jurisdiction of the person. In the present case, no such Affidavit of Laws was presented to enable the Court to determine what is the relevant law in Northern Ireland. Even if such an Affidavit had been presented, it would not take from the fact that the Minister and ultimately the courts would have to interpret the 1956 Act in accordance with the law of this State. It is appropriate to observe however, that given the context and language of the 2004 amendments to the 1956 Act indicate an intention to give an equivalence to entitlements throughout the island of Ireland, the Court, in determining the meaning of the subsection, is entitled to consider that the UK case law is particularly persuasive (but clearly non-binding) as to its meaning. If there is anything in the text, wording, context, or purpose specific in the legislation in this jurisdiction that would indicate that the true interpretation is different, then this Court must give to the provision that other meaning.

The true construction of s. 6A(2)(d)(i)

75. One difference between the 1956 Act and the British Nationality Act, 1981 is that the latter Act provides for the concept of settled status which has the further requirement that the person be 'ordinarily resident' in the State. I do not think that this changes the interpretation of the very particular phrase at issue in these proceedings. That UK law adds this further requirement that the person is in fact in ordinary residence in that jurisdiction did not add to or subtract from the reasoning of the High Court or Court of Appeal in Roehrig as to the meaning of "without being subject under the immigration laws to any restriction on the period for which he may remain". The appellant also highlighted the absence of the phrase "without being subject under the immigration laws" in our laws but again I do not think that adds or subtracts to the reasoning in the decisions in Roehrig.

76. Significantly, in that case, both the High Court and the Court of Appeal of England and Wales held that the clear and ordinary meaning of the phrase compelled the interpretation of the phrase as one that meant more than a temporally restricted period. Therefore, even though the period was not directly restricted by a period of time measured by the calendar, the period was constrained by the requirement of an individual's continued status as a worker. That was the plain and ordinary meaning given by the UK courts in 1983 to the relevant phrase.

77. In theory, one could, therefore, start from the premise that following such an authority of particularly high persuasion, the Court should search for a reason why the words of our legislation do not bear that plain and ordinary meaning. That is not the correct approach. It is important that the Court carries out its duty to interpret the laws of this State in accordance with the principles applicable to statutory interpretation. It is more appropriate that the existence of a persuasive authority be considered within the parameters of those principles. The approach of courts of other jurisdictions or of international bodies may be relevant to ascertaining the context or the purpose for which the legislation was enacted.

78. Turning to the provisions of s. 6A(2)(d)(i) of the 1956 Act, I have already looked at its context and purpose. The appellant's claim that its plain and ordinary meaning of itself or with reference to context and purpose is that the restriction must relate to the time period of the residence is not compelling. We have seen how subsections (4) and (5) of s. 6B address what period of residence is "not reckonable" for the purpose of calculating a period of residence. The phrase 'period of residence' is separate to that means of calculation.

79. The appellant emphasises the word 'period', which, he submits, is indicative of meaning only a time limited matter. Indeed, there may be some basis for arguing that the British legislation's reference to "period" and not "period of residence" makes it clearer that 'period' is not referable to a temporally defined start and end because if it was so referable it would have said 'period of time'. There is also some force in the argument that 'period' in ordinary usage quintessentially refers to a 'period of time', contrary to what the UK court said in Roehrig. It is important to recall however that it was not just the word 'period' that was at issue in Roehrig, but the phrase "restrictions as to the period for which [the applicant's mother] could remain" that fell to be interpreted. The Court of Appeal of England and Wales did so by following the earlier decision in Coomasaru to the effect that a permission to remain subject to a condition "involved a restriction on the period for which the applicant might remain".

80. Similarly in this jurisdiction the phrase 'period of residence' must be viewed in its context. Even if it is arguable that the phrase is linked to a time period - especially so when s. 6B(4) provides for the calculation of a 'period of residence' - the phrase must be interpreted by reference to the other words within the subsection, all of which must be interpreted in context.

81. Significantly, the period (or time) of the residence must be 'without any restriction'. This is a broad phrase; the use of the word 'any' connotes that 'restriction' can come in a variety of means. In plain language that means there must be no restriction which would limit the period of residence for which the person is entitled to reside. It should also be recalled that what is being referred to in the subsection is a residence status conferred by operation of immigration laws and procedures. Immigration permissions are often, indeed usually, restricted as to time and condition e.g. a work or student permission (Stamp 1/Stamp 2). It would be unusual if s. 6A(2)(d)(i) was only to apply to a restriction of time and not to any other condition which restricts the period. Thus, the two separate parts of the phrase "any restriction" and "period of residence" taken together do not compel a meaning that a restriction must only be a facially temporal one without regard to any restriction which might lead to the period coming to an end when a particular condition is no longer met. On the contrary, given the immigration context, it is plain and obvious that a period of residence which is conditional on an individual having a certain status is a restriction on that period of residence. Thus, having regard to the immigration context, the plain and ordinary meaning is that the residence itself must not be restricted (qualified) by any condition; such a condition may or may not include a time limitation and can include a constraint requiring continuing qualification as to status.

82. Looked at in terms of legislative history and in terms of international obligations, is there anything in that context and having regard to the purpose identified from that context, which compels an interpretation that is at odds with that plain and ordinary meaning?

83. Turning first to the appellant's point that there would be an absurdity of having no possibility of birthright citizenship under this subsection if it is correct that the phrase means without any restriction as to time or duration because, as the appellant submitted, "an irrevocable permission cannot exist in law". This argument was perhaps premised on a misunderstanding of the import of the respondents' submissions concerning the type of permanent residence that is addressed in the subsection. Be that as it may, it is important to consider this in the context of the interpretation of the subsection.

84. The respondents did not dispute that no irrevocable permission to reside in the jurisdiction could be granted. That the law does not provide for an absolute right of residence must be taken to have been understood by the Oireachtas. It, therefore, cannot be the case that the Oireachtas was acting in vain in providing for an entitlement to birthright citizenship derived from a type of residence of a parent which could not in law exist. Therefore, s. 6A(2)(d)(i) must have contemplated a situation where the right of residence was non-absolute as a matter of law. In that circumstance, the subsection must refer to a residence which is nevertheless prima facie without limit as to duration or condition; that is, a putatively permanent residence i.e., a period of residence without any restriction. Where a permitted residence is on its face without time limit or without any condition, it will only be a positive act such as leaving the jurisdiction for two continuous years or where the personal conduct is such as to justify deportation or expulsion on national security or public order grounds (or serious national security or public order grounds in the case of EU/EEA nations), that the permanent status will end. Such a right to reside is, on its face, not subject to a limitation of time or to conditions (such as work/study restrictions).

85. A related argument concerns the status of refugees under the 1996 Act at the time of the enactment of the 2004 Act. I have noted that the appellant does not wish to limit his argument so that only refugees under the original 1996 Act might have been considered to have a right of residence without any restriction. At the time of enactment of the amendment to the 1956 Act in 2004, those with refugee status had a right to reside that on its face appeared to be indefinite as to time. Was this the situation that was to be included in s. 6A(2)(d)(i)? The first point against such an argument is that if the Oireachtas intended to grant the children of those with refugee status birthright citizenship why, it might be asked, did it not say so. The Oireachtas could have mentioned refugees in that Act, in the same way as the Immigration Act, 2004 explicitly addresses the situation of refugees. The second point is that such an argument does not address the central feature of the declaration of refugee status and the derived right of residence: This period of residence is not without restriction. A refugee's period of residence could come to an end if the conditions in the country from which they had fled had changed and they were no longer in need of the protection of this State. Thus, their period of residence was not truly permanent but was conditional; the condition being that they had to remain entitled to refugee status. In the same way as the requirement to be a 'worker' (or 'self-employed') is a restriction on those who have an initial residence permit derived from EU law i.e. those who are not entitled to permanent residence, the requirement is to continue to be entitled to refugee status. Thus, the children of such refugees would not have been entitled to birthright citizenship.

86. A further argument is that no category of residence permission is granted which would come within the concept of 'putatively permanent residence' which would not already entitle a child born in the island of Ireland to the holder of such a permission to birthright citizenship. At present it seems that there are only two categories of residence permissions in this State where the children born to a person holding such permission might qualify under s. 6A(2)(d)(i) of the 1956 Act. These are:

a) the children born to those who have indefinite leave to remain i.e. to those who have lived here for 8 years or more and are given a Stamp 5 permission from the Minister, and

b) the child of the EU citizen with permanent residence.

87. The appellant submits that the children of those who hold these two types of permission would also qualify for birthright citizenship under the provisions of s. 6A(1) in terms of reckonable residence. It is not altogether clear to me that such a statement will always be correct. Take the case of the EU citizen who, having lived here continuously for more than five years and who has a permanent right of residence in this State, moves away from the State, even with an intention not to return, and remains away for 18 months before returning to live in the State. They will not have lost their right of residence under the Citizens Directive implemented by Article 14(8) of the European Communities (Free Movement of Persons) Regulations, 2015 (SI 548/2015) because they have not been absent from the State for a period exceeding 2 consecutive years. Thus, a child born to them in the island of Ireland in the immediate aftermath of their parent's return will qualify under s. 6A(2)(d)(i) because the parent had an entitlement to reside here without restriction. That child may not qualify under the reckonable residence requirements of s. 6A(1) because the parent had not been resident in the island for a period of not less than 3 years during the period of 4 years immediately preceding the birth of the child. Thus, I do not think it can be said that there is an absurdity.

88. In any event, there is nothing to say that the policy concerning those entitled to unrestricted periods of residence was fixed in 2004 or could not have changed subsequently so a person could obtain such a right in a shorter period of time. It is not irrational to suggest that by legislating as they did in 2004, the Oireachtas intended to leave open the possibility of a change in immigration policy that would provide for an indefinite right to reside within a shorter period than contemplated at that time.

89. Moreover, regard must be had to the historical context of the 2004 enactment after the Twenty-seventh Amendment to the Constitution Act, 2004, but post the British-Irish Agreement 1998, in which the British and Irish States recognised and accepted that the birthright of all the people of Northern Ireland to identify themselves and be recognised as Irish or British, or both, as they may so choose and defined those persons in Annex 2 thereof. This history, together with the language of the 2004 amendments which clearly attempts equivalence of entitlement between those born or residing in Northern Ireland or in Ireland using the phraseology of Annex 2, has justified regard being had to the case law of the UK as particularly persuasive authority. As pointed out above, far from giving any doubts about the plain and ordinary meaning, the UK authority of Roehrig following from the 1983 decision of Coomasaru is a persuasive authority to the same effect. There is therefore no reason to disagree with that decision.

AJK v Minister for Defence

90. The appellant placed considerable reliance on my dicta referring to the "open-ended right of residence" of the holder of a declaration of subsidiary protection in AJK v Minister for Defence. That case did not concern the 1956 Act but was concerned with the interpretation of the enlistment provision set out in s. 53 of the Defence Act, 1954. In AJK v Minister for Defence it was held that there was no basis for construing or implying into the relevant provisions of the Defence Act, 1954 a requirement that a person had to have an unimpeachable entitlement to reside within the State for the full period of the term of enlistment at the time of enlistment. The reference in my judgment to having "in effect an open-ended right of residence" (para 78) was made in the context of a person entitled to subsidiary protection. It is correct to note that in the decision and using the concept 'temporary status' as the Minister had described the situation regarding a person entitled to international protection, I said that there was no meaningful difference between that temporary status and the conditional status of a naturalised Irish citizen. As the next sentence makes clear, this was in the context of the very particular provisions of s. 53 of the Defence Act, 1954: "To say that the s. 53 terms of enlistment permits the latter but, on its face, excludes the former would be illogical".

91. In all the circumstances, the decision in AJK v Minister for Defence does not and could not assist the appellant in this case.

The meaning of s. 6A(2)(d)(i)

92. In all those circumstances, the plain and ordinary meaning of s. 6A(2)(d)(i), having regard to the language used when viewed in the historical, legislative and international context, is that the exclusion from the requirement for a parent to have a reckonable period of residence in order for their child to have birthright citizenship, only applies to those parents who have no prima facie restriction as to time or other condition on their period of residence. In short, it is a right of residence which has no present conditionality or restriction. Thus, only those whose period of residence is (putatively) permanent can give birthright citizenship to their children born in the island of Ireland under the provisions of s. 6A(2)(d)(i).

The International Protection Act, 2015

93. In the same way, pre-2006 Regulations declared refugees were in fact restricted in their right of residence and were not putatively permanent residents, those now entitled to international protection are similarly situated. Their period of residence is restricted by s. 52 of the 2015 Act because their status is also subject to revocation if they cease to be a refugee or eligible for subsidiary protection. Under s. 54, their permission to reside is specifically stated to cease if they cease to be a qualified person i.e. a person entitled to international protection.

94. Put simply, a person who holds a declaration of refugee status or subsidiary protection has a right to reside within the state for a period of three years which shall be renewable, but, crucially, that period of residence is subject to a restriction because of the condition that the person remains entitled to that declaration of refugee status or subsidiary protection. In those circumstances, a person, such as the mother of the applicant in this case, was not a person entitled to reside in the State without any restriction on her period of residence; her status was conditional on her remaining entitled to that declaration.

95. Neither party referred to the position of a "programme refugee" within the meaning of s. 59 of the 2015 Act (previously s. 24 of the Refugee Act, 1996). This is a person to whom leave to enter and remain in the State for temporary protection or resettlement as part of a group of persons has been given by the Government and whose name is entered in a register established and maintained by the Minister for Foreign Affairs, whether or not such person is a refugee within the meaning of the definition of "refugee" in s. 2 of the Act. Sections 53 and 54 applies to those persons with the modification that a period of residence granted under s. 54 may be for a specified period of less than 3 years. As there is no evidence of the conditions under which such persons are accepted for the purpose of residence in this jurisdiction, and noting that some programme refugees are accepted for "resettlement", for the avoidance of doubt, this judgment only concerns the applicability of s. 6A(2)(d)(i) in so far as it applies to those persons declared a refugee or declared eligible for subsidiary protection.

Conclusion

96. This appeal concerns the situation in which a child born in the island of Ireland who does not have an Irish or British parent and whose parent does not have a sufficient reckonable period of residence may nonetheless be entitled to birthright citizenship. The resolution of the appeal depends on the meaning of s. 6A(2)(d)(i) and in particular the meaning of the phrase: "entitled to reside in the State without any restriction on his or her period of residence".

97. This subsection was inserted into the Irish Nationality and Citizenship Act, 1956 by the provisions of the Irish Nationality and Citizenship Act, 2004. The 2004 legislation was enacted in the wake of the 27^th Amendment to the Constitution concerning Irish citizenship of those born in the island of Ireland to parents neither of whom is an Irish national. That amendment must also be considered in light of the amendments to the Constitution following the Good Friday Agreement 1998 and also having regard to the British-Irish Agreement which was part of the 1998 Agreement.

98. The plain and ordinary meaning of s. 6A(2)(d)(i), having regard to the language used and when viewed in the historical, legislative and international context, means that the exclusion from the requirement for a parent to have a reckonable period of residence in order for their child to have birthright citizenship, only applies to those parents who have no prima facie restriction as to time or any other condition on their period of residence. It is a right of residence which has no present conditionality or restriction. Thus, only those whose period of residence is (putatively) permanent can give birthright citizenship to their children born in the island of Ireland.

99. The applicant's mother, as a person who was entitled to a declaration of subsidiary protection, was not a person who was entitled prima facie to a period of residence without restriction as to time or condition. While she was entitled to have her residence renewed successively after every three years, her entitlement to this renewal ceased if she lost her entitlement to subsidiary protection. She was therefore not a person whose period of residence was without any restriction.

100. In the circumstances, I would dismiss the appeal.

Supreme Court of Ireland Decisions