Woman loses Supreme Court appeal over Ireland-born child’s right to passport

In a unanimous decision on Friday, a five-judge Supreme Court dismissed the appeal

A woman lost a Supreme Court appeal on Friday over the eligibility of her Ireland-born son for an Irish passport. Photograph: Bryan O'Brien
A woman lost a Supreme Court appeal on Friday over the eligibility of her Ireland-born son for an Irish passport. Photograph: Bryan O'Brien

A woman has lost a Supreme Court appeal in which she claimed that, because she had a right of residence here, her Ireland-born child was entitled to an Irish passport.

The child was born here in 2019 when the mother enjoyed the status of holding “subsidiary protection”, which meant although she did not qualify for asylum she had permission to remain in the State on grounds of a fear she will be subject to serious harm if repatriated.

The minister for foreign affairs refused her application for a passport for her child in August 2021 and she brought a High Court challenge over the decision.

The High Court refused to quash the minister’s decision and she was granted an appeal to the Supreme Court.

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In a unanimous decision on Friday, a five-judge Supreme Court dismissed the appeal.

On behalf of the court, Ms Justice Aileen Donnelly said the specific question raised in the case was whether she was entitled to reside in the State “without any restriction on her period of residence”.

The mother had argued that she had a mandatorily renewable right to a residence permission which meant there was no time restriction on the period of residence.

The minister argued there were constraints on her period of residence such as the requirement to have continued eligibility for subsidiary protection.

Ms Justice Donnelly said the issue of “restriction on period of residence” was dealt with under a provision of the Irish Nationality and Citizenship Act 1956, which came about as a result of the 27th amendment to the Constitution in 2004. That dealt with the right to citizenship to those born in Ireland where neither parent was an Irish national.

The judge said that having regard to the immigration context, the plain and ordinary meaning of a phrase in the Act (Section 6A (2)(d) i) “without any restriction on her or her period of residence” is that the residence itself must not be restricted, or 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, she said.

Any 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 parents who have, on the face of it (prima facie), no restriction as to time or other condition on their period of residence, she said.

Only those whose period of residence is putatively permanent can give birthright citizenship to their child, she found.

A person with international protection status is restricted in their right of residence and it is subject to revocation if they cease to be a refugee or to be eligible for subsidiary protection, she said.

The mother in this case was not entitled to reside here without any restriction as her status was conditional on her continuing to be entitled to subsidiary protection, she said.

The court dismissed the appeal.