Supreme Court of Ireland Decisions

Judgment Title: Fares & Ors -v- Minister for Justice, Equality & Law Reform & Ors

Neutral Citation: [2007] IESC 65

Supreme Court Record Number: 483/2006

High Court Record Number: 2005 1234 JR

Date of Delivery: 20 December 2007

Court: Supreme Court

Between/

1. Issue
At issue in this case is the decision of a Minister of the Government made in an administrative scheme established as an exercise of executive power, to deal with a unique group of foreign nationals. It is submitted, on the one hand, that, inter alia, in this scheme the Constitutional and Convention rights of applicants were required to be considered in accordance with law. On the other hand, it was submitted that neither Constitutional nor Convention rights arose to be considered. Thus the nature of the scheme is at the core of the appeal, and, with it, the nature of any judicial review. Also, at the kernel of the case is the fact that the position of a foreign national, who failed in an application under the scheme, remains the same as it was prior to the application, with all relevant Constitutional and Convention rights yet to be considered.

At the core of the case is the refusal by the Minister of the first named applicant's application under the IBC 05 Scheme.

2. Eight Cases
The Minister for Justice, Equality and Law Reform, the respondent/appellant, hereinafter referred to as the 'the Minister', has appealed from the judgments of the High Court (Finlay Geoghegan J.) in seven cases where the High Court quashed the decision of the Minister to refuse applications for permission to remain in the State to foreign national parents of Irish born children under a scheme which he had introduced. In the eighth case the Minister is appealing against the order for costs made in the High Court.

3. These related cases are:

(i) Bode v. The Minister, Appeal No. 485/2006
(ii) Oguekwe v. The Minister, Appeal No. 489/2006
(iii) Dimbo v. The Minister, Appeal No. 484/2006
(iv) Fares v. The Minister, Appeal No. 483/2006
(v) Oviawe v. The Minister, Appeal No. 480/2006
(vi) Duman v. The Minister, Appeal No. 482/2006
(vii) Adio v. The Minister, Appeal No. 481/2006
(viii) Edet v. The Minister, Appeal No. 005/2007

4. The general facts and law relating to the Minister's decision in the administrative scheme in the seven cases are set out in the Bode judgment. The particular facts, law, and decision of this case are set out herein.

5. Parties
Samir Moriss Gerges Fares, the first named applicant, and hereinafter referred to as 'the first named applicant', is married to Mrs Sohair Antone Gerges Boulis, who gave birth in the State to Flobater Samir Moriss Gerges Fares, the second named applicant, and hereinafter referred to as 'the second named applicant', on the 14th September, 2003.

6. Particular Facts
This case relates to the requirement in the IBC 05 Scheme of continuous residence within the State.

The first named applicant is an Egyptian national. On the 1st September, 2003 the first named applicant and his wife entered the State on a visitor's visa. His wife gave birth to the second named applicant in the State on the 14th September, 2003. All three left the State on the 13th October, 2003.

The applicants, and the first named applicant's wife (and mother of the second named applicant) re-entered the State on the 10th March, 2005 using visitors' visas. Both the first named applicant and the second named applicant's mother applied under the IBC 05 Scheme on application forms received on the 22nd March, 2005. On the 19th August, 2005 both applications were refused. The grounds for the refusal were stated as follows:-

"It is a requirement under the revised arrangements that the applicant is residing in the State with their Irish born child on a continuous basis since the child's birth. In this case I note from your application form that you have been resident in Egypt from 13 October 2003 to 10 March 2005. On this basis I am satisfied that you do not meet the criteria for the granting of permission to remain in the State under the revised arrangements and accordingly your application is hereby refused."

8. High Court Order
The High Court held:-

"There is no substantive difference between the position of the second named applicant as a citizen child and his father as an applicant under IBC/05 so as to distinguish them in any way from the conclusions which I reached in the Bode judgment. Accordingly, for the reasons fully set out in that judgment I have concluded:

1. The decision taken by the [Minister] on the application under IBC/05 of the first named applicant as communicated in the letter dated 19th August, 2005 is unlawful as it was taken in breach of the second named applicant's rights under Article 40.3 of the Constitution.

2. The decision of the [Minister] on the application under IBC/05 of the first named applicant communicated in the letter of 19th August, 2005 is unlawful as it was taken in breach of the [Minister's] obligations under s.3(1) of the European Convention on Human Rights Act, 2003, as it was taken in a manner which is not compatible with the State's obligations to the second named applicant under article 8 of the Convention."

9. Appeal
The Minister appealed against the judgment and order of the High Court. The submissions before this Court were similar to those in the Bode case.

10. Decision
I would allow the appeal of the Minister. My general reasons are set out in the Bode judgment. My particular reasons are set out in this judgment.

11. Conclusion
The application was misconceived. The IBC 05 Scheme was an administrative scheme established by the Minister exercising executive power, to deal with a unique group of foreign nationals in a generous manner, on general principles. The parameters of the scheme were set out clearly, and included a requirement of continuous residence in the State since the birth of the child. There was no evidence of continuous residence, indeed the evidence was quite to the contrary. In making the decision on this application the scheme was administered by the Minister within the terms of the scheme.

At no time was it intended, within the ambit of the scheme, that the Minister would consider, or indeed did the Minister consider, Constitutional or Convention rights of the applicants. Thus the grounds of the application, and of the appeal relating to Constitutional or Convention rights, were misconceived and premature. Applicants who are unsuccessful in their application under the IBC 05 Scheme remain in the same position as they had been prior to the application. All relevant Constitutional and Convention rights await consideration.

It is manifestly clear on the facts of this case that the applicants do not come within the criteria of the IBC 05 Scheme, and the Minister was entitled to so hold. Consequently, I would reverse the decision of the High Court and allow the appeal.

Should the applicants return to the State at a future time issues of the relevant Constitutional or Convention rights of the applicants may be addressed. However, I am satisfied that the facts of this case, where the family had such an insubstantial connection to the State, illustrate why the law on Irish born children was changed.