Child born to non-EU parents refused Irish citizenship ‘absurdly’

A seven-year-old girl born in Ireland to non-EU parents, now separated but both legally in the Republic, was unlawfully and "absurdly" refused Irish citizenship on grounds her father was not of "good character", the High Court has been told.

The child, who lives with her mother and whose father has supervised access visits to her, is challenging that refusal in proceedings involving claims the relevant provision of the Irish Nationality and Citizenship Act 1956, if held to permit such a refusal, is unconstitutional or incompatible with the European Convention on Human Rights.

The child’s mother came to Ireland aged 18 and undocumented, in 2007. She met and married her husband here and got humanitarian leave to remain in September 2013.

She claims her husband was violent towards her at times and prevented her over a number of years seeking to regularise her immigration status. After the husband, who is here since 2002 and has residency, violently assaulted his wife in July 2013, she reported that to the Garda, fled their home, got emergency accommodation and later got independent accommodation for herself and the child.

She also got barring and maintenance orders against her husband.

Several convictions

In September 2014, he applied for naturalisation for himself and in February 2016 applied for naturalisation on behalf of his daughter. On December 7th 2016, the Minister for Justice refused the man naturalisation on grounds he was not of good character due to several convictions, including for threatening behaviour and assault causing harm arising from the 2013 attack on his wife, for which he got a 2½-year suspended sentence.

The Minister also refused naturalisation for the child because the conditions concerning the father’s application were not satisfied.

The child, through her mother, has sought judicial review of the refusal concerning her in proceedings against the Minister, with the Irish Human Rights and Equality Commission as notice party.

Opening the case on Wednesday, Siobhan Phelan SC, for the child, said the Minister’s decision was unlawful and “absurd” and took into account entirely irrelevant considerations, the man’s convictions.

Section 15 of the 1956 Act must be interpreted so as not to permit an application for naturalisation on behalf of a minor be refused solely on a finding of lack of good character on the part of their parent, she argued.

If Section 15 permits such a refusal, it must be deemed unconstitutional or incompatible with Articles 8 and/or 14 of the ECHR, she submitted.

‘Dreadful’

In exchanges, Mr Justice David Keane remarked all children are of good character and cannot not be otherwise unless they do "dreadful" things, such as killing other children.

Ms Phelan said, while a naturalisation application for a child is made by a parent, the person whose application is considered is the child because they will be the beneficiary of the certificate for naturalisation.

The child has two parents and her mother, who has no criminal convictions, could have made the application on behalf of the child. It was “fundamentally unfair and unjust” of the Minister to link a person to their family in this way as a person “cannot help the family they are born into”.

This child cannot be held responsible for the failings of her father. While accepting the Minister’s argument citizenship is a privilege and not an entitlement, applications must be considered fairly and within statutory parameters, she said.

In opposing the case, the Minister, represented by Siobhán Stack SC, argues he was obliged under Section 15 to consider whether the “applicant” for naturalisation was of good character. Section 15 permits refusal of a minor applicant on the basis of their parent’s circumstances, it is argued.

The hearing has been adjourned to resume at a later date.