High Court dismisses judicial review challenging s.7(3) of 1956 Act as not incompatible with ECHR Articles 8 and 14.

[2026] IEHC 327

THE HIGH COURT

JUDICAL REVIEW

RECORD NO. 2024/684 JR

BETWEEN

S.N. (A MINOR SUING THROUGH HIS FATHER AND NEXT FRIEND R.N) AND

R.N.

APPLICANTS

AND

THE MINISTER FOR FOREIGN AFFAIRS, IRELAND AND

THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT delivered by Mr. Justice Barry O’Donnell on the 22nd day of May, 2026

INTRODUCTION

1. This judgment is given in proceedings brought for the purpose of challenging the constitutionality of s. 7(3) of the Irish Nationality and Citizenship Act 1956 (the 1956 Act). The proceedings were brought by way of an application for judicial review in respect of what was described as a refusal to waive certain elements within the 1956 Act concerning applications for a passport and a certificate of nationality that had been made by the second applicant on behalf of his infant son, the first applicant. The second applicant, who will be referred to as “Dr. N” was born in Sri Lanka and has been a naturalised Irish citizen since 2016.

The first applicant, who will be referred to as “S.N.”, is Dr. N’s third child; he was born in the United Kingdom.

2. At the outset of the hearing of the proceedings, the applicant applied for an order pursuant to s. 45(1)(c) of the Courts (Supplemental Provisions) Act 1961 and / or the inherent jurisdiction of the Court seeking for the matter to be heard otherwise than in public. This order was sought on the basis that it concerns a minor and his citizenship status, as well as other matters relating to his family’s circumstances as they relate to citizenship. The respondent did not object strongly to the application but noted that s. 45(1)(c) appears properly concerned with the subject matter of the proceedings, rather than the mere fact that a minor is party to the proceedings. I was satisfied to impose very limited restrictions which prohibit the publication of the name of the applicant or the name of the applicant’s father. While noting that this is a borderline case, I am satisfied that it is necessary for the interests of the minor having regard to the subject matter of these proceedings that his identity be anonymised.

3. Put very briefly, these proceedings focus on how the 1956 Act addresses the acquisition of citizenship by descent. In that respect, s. 7 of the 1956 Act provides that, generally, a person is an Irish citizen from birth if either parent was an Irish citizen. That general proposition is modified by s. 7(3) of the 1956 Act, which provides that, where a person is born outside the island of Ireland and the parent through whom he derives citizenship also was born outside the island of Ireland, they will only acquire citizenship if their birth is registered under s. 27 of the 1956 Act. Section 27 provides for the foreign births register (the FBR) to be administered by the Department of Foreign Affairs. By virtue of s .7(3) of the 1956 Act, where after the 1 July 1986, a birth is entered on the FBR, the Irish citizenship of the person will only operate from the date of registration.

4. Dr. N complains that s. 7(3) of the 1956 Act is repugnant to the Constitution. Dr. N’s position is that, as a naturalised Irish citizen, he has been unlawfully and unjustifiably discriminated against when compared to an Irish citizen born in the State who has a child. He argues that S.N. is being unlawfully and unjustifiably discriminated against when compared with a child born abroad to an Irish born Irish citizen parent.

5. For the reasons set out in this judgment I decided that the relief sought by the applicants should not be granted.

THE EVIDENTIAL BASIS FOR THE CASE PUT FORWARD BY THE APPLICANTS

6. The evidence in this case was in the form of affidavits sworn on behalf of the parties and there was no application for cross-examination. I will address later how the court should approach the various elements in the evidence, and at this point I will simply summarise what was put before the court.

7. On behalf of the applicants, the first affidavit in time was affirmed by Stephen Collins on the 21 May 2024. Mr. Collins is a solicitor with the Irish Human Rights and Equality Commission (IHREC) who are the solicitors acting for the applicants in these proceedings. Mr. Collins stated that Dr. N applied for and was granted legal assistance by IHREC for the purpose of these proceedings in accordance with the relevant provisions in the Irish Human Rights and Equality Commission Act 2014. Mr. Collins stated that that the applicants were residing in the United Arab Emirates, and he swore his affidavit in order to ensure that papers were filed in advance of the application for leave being moved. Presumably, this was because the final confirmation that the requirements of s. 7(3) of the 1956 Act would not be waived was in an email from the Minister for Foreign Affairs dated the 22 February 2024. The second applicant, Dr. N swore an affidavit on the 30 May 2024. The following core facts are set out in the affidavits for the applicants:

8. Dr. N was born in Sri Lanka in October 1982. He moved from Sri Lanka to Latvia in 2004 to study medicine and completed his studies in 2010. From 2010 to 2016, he lived in Ireland working as a doctor. He is married, and his wife is a naturalised British citizen who was born in Sri Lanka, and they have three children. The eldest child was born in Sri Lanka in 2012 and is a naturalised Irish citizen. The second child was born in Ireland in 2014 and is an Irish citizen by birth. Dr. N’s third child is the first applicant, S.N.; he was born in the United Kingdom in October 2019 and is a British citizen.

9. Dr. N applied for a certificate of naturalisation pursuant to s. 15 of the 1956 Act and was granted a certificate on the 20 April 2016. Dr. N averred that he and his family intended settling in Ireland but ultimately moved to the United Kingdom in 2016 in order to avail of medical training opportunities. Dr. N had attempted unsuccessfully to enter training in Ireland over the course of approximately three years, and, when he moved to the UK in 2016, he was accepted into a training program, ultimately becoming a specialist registrar with specialisation in diabetes and endocrinology. Dr. N lived in the UK from 2016 to 2023. In December 2023, he moved from the UK to the UAE with his wife and three children due to difficulties in obtaining visas for their close family members.

10. In addition to addressing the core facts and summarising the legal issues, Mr. Collins addressed and exhibited correspondence grounding the claims, together with certain exhibits which were said to address the timescale within which foreign birth registration applications are processed together with a 2020 ESRI report entitled ‘Pathways to citizenship through naturalisation in Ireland’. Finally, Mr. Collins exhibited various extracts from Dáil debates and Seanad debates from 1956 through to 1985.

11. In his affidavit, Dr. N stated that at the time of his son’s birth he was not aware of the fact that S.N. would be entitled to British citizenship and began to look into the procedure to have his Irish citizenship recognised. He learnt about the FBR and, as he put it at paragraph 7 of his affidavit:- “I objected on principle to having to register him to have his citizenship recognized and I refused to do so. However, I was also worried that S.N. might be stateless for a prolonged period of time. Furthermore, we needed to have a passport for S.N. to be able to travel; both my father and father-in-law had died shortly before S.N. was born, and being able to travel was of the utmost importance to us. I therefore enquired as to whether S.N. would be eligible for British citizenship. In November 2019 I applied for a British passport on S.N.'s behalf. I say that I applied for his passport on the basis that he was born in the UK to an Irish parent lawfully resident there. I say that his UK passport issued within a few weeks. I say and believe that I was able to get my son British citizenship from birth by proving I was an Irish citizen, but that I could not get him Irish citizenship by proving the same thing.”

12. Dr. N confirmed that he still wished to return to Ireland to work as a doctor one day. He goes on to note at paragraph 13: “I say that as a naturalised Irish citizen, I must register with the Irish immigration service every year. I understand that if I do not, my citizenship can be revoked. This, coupled with the Foreign Births Register requirement, made me feel insecure living in the UK as a naturalised Irish citizen. This is why I applied for British citizenship, which I acquired on 30 June 2022. I am now a dual citizen of Ireland and the UK, and I hold both passports.”

13. In terms of understanding the gravamen of his case, Dr. N states at paragraph 17: “I say, believe and I am so advised that section 7 (3) of the Irish Nationality and Citizenship Act 1956 obliges me to go through a process of foreign birth registration on my son S.N.’s behalf, following which, if successful, he would be seen as an Irish citizen only from the date that his registration is accepted. I have no particular objection to the foreign birth registration requirement applying in the case of an Irish parent or parents who themselves acquired Irish citizenship by descent, given that such parent or parents may themselves have never lived in Ireland or maintained any link with Ireland. However, I see it as offensive and discriminatory that as a person who has personally put significant commitment to Ireland by becoming naturalised, I am nonetheless treated the same as that category of person. I believe that, for the purposes of passing on my Irish citizenship to my children, I should instead be treated the same as an Irish born Irish citizen, and that S.N. should be treated the same as a child of such a person. Matters are made worse by the fact that the foreign birth registration process was at one point taking over 2 years, and still apparently takes 9 months to complete. The fact that foreign birth registration processing shutdown for 18 months during the Covid-19 pandemic also points to the lack of respect for my Irish citizenship, and S.N.’s Irish citizenship.”

The documentary evidence

14. The documents on which the applicant sought to rely were exhibited to the affidavit of Mr. Collins. The documents comprise correspondence relating to the application for a passport for S.N. and the separate application for a certificate of nationality. It can be noted that there was an element of artificiality about this process as it was clear that the outcome required by the 1956 Act was somewhat inevitable and the process appears to have been focussed on obtaining an unequivocal refusal of any waiver of the requirements of that Act.

15. On the 28 January 2023, Dr. N contacted the Irish Embassy in London. He indicated that he was applying for a certificate of nationality on behalf of his son in accordance with s.

28 of the 1956 Act. Having set out the basic information regarding that situation, he stated that he did not believe he should have to register his son on the FBR to get him citizenship. He stated “he is an Irish citizen and he is therefore entitled to a certificate of nationality. I believe that the requirement to register his birth on the FBR on the basis that I am a naturalised Irish citizen rather than a citizen by birth, adoption or descent could be discriminatory”. He concludes his email by requesting that the FBR requirement under s. 7(3) of the 1956 Act be dis-applied to facilitate his son’s application.

16. There were further exchanges of correspondence between Dr. N and various officials which led to an email from an official in the Department of Foreign Affairs on the 11 April 2023. The official in question set out again the relevant legal provisions and stated that “as the foreign born child of an Irish citizen born abroad, your son would hold an entitlement to acquire Irish citizenship, but section 7 (3)(a) qualifies that he could not acquire citizenship until his birth was registered under section 27”. The official noted that while the Department of Foreign Affairs administered the FBR under the 1956 Act, the Minister for Justice was the designated Minister holding responsibility for all citizenship matters, and therefore any question of waiving or amending any or all of the provisions of the 1956 Act should be addressed to the Department of Justice.

17. Dr. N contacted the Department of Justice to request that they waive, amend or revise the FBR requirement. On the 11 October 2023, the Department of Justice had set out that there were no plans to amend the relevant sections of the 1956 Act and noted that the FBR was the responsibility of the DFA.

18. In a similar way to his correspondence concerning the FBR application on behalf of S.N., Dr. N emailed the Department of Foreign Affairs passport office on the 28 January 2023 seeking to apply for an Irish passport for his son. After some prompting, the Department replied in an email dated the 1 August 2023. The email from a passport officer, set out the pathways to citizenship and noted that s. 6 of the Passports Act 2008 relates to a person who is an Irish citizen. As S.N. was not yet an Irish citizen it was stated that he needed to apply to have his details entered on the FBR.

19. The final document exhibited by Dr. N was an email from the Minister for Foreign Affair’s office dated the 22 February 2024. That email refers to the previous correspondence and, in effect, set out what had already been explained on a number of occasions, that the Minister for Foreign Affairs has no discretion to waive the requirement under s. 7(3)(a) of the 1956 Act, that the Minister for Justice has no plans to amend the relevant sections of the 1956 Act, and therefore the legal requirement to register S.N.'s birth on the FBR remained a legal requirement and has not been waived. The email stated:- “To clarify the Department's position, children born abroad to Irish citizen parents who were themselves born abroad, are required to have their births entered on the Foreign Births Register to acquire Irish citizenship. Regardless of how a child's parent acquired Irish citizenship, children born abroad to Irish citizen parents also born outside the island of Ireland who wish to obtain Irish citizenship for said child, must comply with section 7 of the 1956 Act.”

THE PROCEEDINGS

20. The proceedings issued on the 21 May 2024, and, on the 22 July 2024, the High Court granted the applicants leave to apply for judicial review for the relief sought set out in their statement of grounds. The applicants seek the following primary relief: a. An Order of certiorari quashing the decision by the Minister for Foreign Affairs on the 22 February 2024 refusing the application for an Irish passport made on behalf of the first applicant by the second applicant. b. An Order of certiorari quashing the decision of the first named respondent of the 22 February 2024 refusing an application for a certificate of nationality made on behalf of the first applicant by the second applicant.

c. A declaration that section 7(3) of the 1956 Act is repugnant to the provisions of the Constitution, and in particular articles 40.1, 40.3, 41 and 42A thereof, insofar as it applies to a child of a naturalised Irish citizen parent.

21. In addition or in the alternative, the applicants seek a variety of declarations: d. A declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that s. 7(3) of the 1956 Act is incompatible with the State’s obligations under the European Convention on Human Rights and in particular (but not limited to) Article 8, and/or Article 8 read in conjunction with Article 14 thereof, insofar as it applies to a child of a naturalised Irish citizen parent. e. A declaration that the first respondent has acted contrary to section 3(1) of the European Convention on Human Rights Act 2003 in his decision of the 22 February 2024 refusing the application for an Irish passport made on behalf of the first applicant by the second applicant and refusing the application for a certificate of nationality made on behalf of the first applicant by the second applicant. f. A declaration that section 7(3) of the 1956 Act is in breach of European Union law and, in particular, Article 20 of the Treaty on the Functioning of the European Union and/or Article 20 and/or 21 of the Charter of Fundamental Human Rights of the European Union. g. A declaration that the first respondent has acted contrary to European Union law in his decision of the 22 February refusing the application for an Irish passport made on behalf of the first applicant by the second applicant and refusing the application for a certificate of nationality made on behalf of the first applicant by the second applicant.

22. The legal grounds upon which the applicant was permitted to apply for judicial review are as follows: “1. Section 7(3) of the Irish Nationality and Citizenship Act 1956, insofar as it applies to a child of a naturalised Irish citizen parent, arbitrarily and unlawfully discriminates against the first and/or second applicant on the basis of their race and or racial or ethnic origin and/or (in respect of the second applicant) status his as a naturalised foreign-born Irish citizen without objective justification contrary to (i) articles 40.1, 40.3, 41 and 42A of the Constitution, and/or (ii) Article 8, and/or Article 8 read in conjunction with Article 14 of the ECHR and/or (iii) Article 20 of the Treaty on the functioning of the European Union and/or article 20 and/or 21 of the Charter of Fundamental Rights of the European Union. The appropriate comparator in respect of the first applicant is a foreign-born child of an Irish-born Irish citizen parent. The first Respondent’s decision of the 22nd February 2024 refusing the application for an Irish passport made on behalf of the first Applicant by the second applicant and refusing the application for a certificate of nationality made on behalf of the first Applicant by the second Applicant is thus invalid.

2. The process for the registration of a foreign birth pursuant to section 27 of the Irish Nationality and Citizenship Act 1956 is in breach of the applicants’ right to good administration under article 40.3 of the Constitution and/or Article 41 of the Charter of Fundamental Rights of the European Union.”

23. The respondents’ position is set out in a statement of opposition filed on the 14 March 2025. The respondents make the preliminary objections that the “decisions” sought to be quashed are not decisions in the proper sense. There was no proper application for a certificate of nationality and no application for a passport. In addition, it was asserted that the Minister for Foreign Affairs is responsible only for administering the FBR and that the Miniter for Justice is the proper person with responsibility for questions relating to citizenship.

24. Without prejudice to those objections, the respondents opposed the granting of relief on a series of substantive grounds. First, it was asserted that S.N. is not in a similar position to a foreign-born child of an Irish born Irish citizen parent, and that the applicants had not identified a correct comparator. Second, it was asserted that the Oireachtas is entitled to determine which persons are entitled to citizenship by birth and by descent and the conditions for naturalisation. In that regard, it was contended that any differences in treatment with respect to entitlements to citizenship flowed from Articles 2 and 9 of the Constitution and the provisions of the 1956 Act. Those differences in treatment – between citizens and non-citizens who are entitled to become citizens by way of registration – were rational, proportionate and objectively justified. In addition, the respondents argued that the applicants did not have standing to maintain a challenge to the FBR as they had not submitted an application to be entered on the register. Finally, it was stated that no issues of EU law arose as S.N. was not at present an Irish citizen.

25. In terms of evidence, the respondents filed two affidavits. The first affidavit was sworn by Darragh Brennan on the 4 March 2025. Mr. Brennan is a Principal Officer in the Citizenship Division at the Department of Justice, and he set out the policy rationale for the FBR. In summary, with regard to citizenship by descent, he stated that from its inception the 1956 Act distinguished between the position of the children born outside the island of Ireland to Irish born parents and foreign-born parents. The rationale for the distinction was stated to be that “a child born abroad to a parent who was born in Ireland is understood to have a stronger lineal attachment and connection to Ireland than a parent and child, neither of whom were born in the State.” Nevertheless, it was noted that “Irish descent was an important facet of Irishness which may be passed on from generation to generation, and may often include persons and families for whom their Irishness is a central and active part of their identity and heritage.” Hence, making available an entitlement to citizenship is a way of providing for an active connection if that is sought by such persons or families.

26. Mr. Brennan noted that the prospective element in a citizenship application under s. 27 of the 1956 Act was introduced by legislative amendment in 1986. Mr. Brennan referred to comments made in the Oireachtas in which there was references to the desire to place “limits on the absolute operation of jus sanguinis for successive generations of Irish descendants born abroad”. This was described in a Dail debate in 2004 as avoiding the “unlimited trickle-down effect of Irish citizenship from parent to child” by requiring the positive act of registration.

27. Mr. Brennan described the potential burden of an exponential trickling down of Irish citizenship as being thought likely to lead to an intolerable burden on the State from the perspective of the immigration and passport systems. If citizenship passed automatically the State would have no visibility on numbers of persons with “no temporal or proximate link to the State”. An example was given of an unexpected and large increase of applications for citizenship from Argentinian nationals with Irish ancestry during the mid-1980s in the context of the Falkland’s war and the political conditions in Argentina.

28. With specific reference to the foreign-born children of naturalised citizens who also were born abroad, Mr. Brennan stated that a similar rationale applied. He stated that the requirement for registration ensured that families who may have lived in the State for a time but who since moved away and had children abroad “can maintain Irish citizenship and affinity with the State through the FBR.” This, it was said, was “just like any other person who was born abroad with an entitlement to Irish citizenship by descent in this way.” Mr Brennan concluded by stating: “The State is entitled to and has placed limits on this entitlement to citizenship. For instance, with respect to the question of Irish descent going back to greatgrandparents, the policy has been that such a link is not regarded as a strong enough association where there has been no registration through the FBR. The first generation affected by the 1986 amendment were the great-grandchildren of Irish born citizens. They were not entitled to register on the FBR unless one of their parents from whom they derived the right to Irish citizenship had registered prior to their birth. The entitlement to citizenship though the FBR is a very important part of the citizenship model that the State operates. It exists to enable thousands of people who were born abroad and who are of Irish descent to maintain their link to the State and who positively wish to continue their Irish heritage. The requirement to register on the FBR is viewed as a practical means of giving effect to this entitlement to citizenship by descent which balances the policy with the State’s obligation to maintain the integrity of its immigration and citizenship systems by requiring the taking of a positive and non-onerous step by a person who wishes to obtain citizenship through this process.”

29. The second affidavit on behalf of the respondents was sworn on the 27 March 2025 by Aisling McQuaid, who is the Deputy Director in the Passport Service at the Department of Foreign Affairs. Ms. McQuaid noted that the FBR is administered by the Department of Foreign Affairs and that overall legislative responsibility for citizenship matters rests with the Minister for Justice. Ms. McQuaid confirmed that there had been no passport application in respect of S.N. and that the Minister for Foreign Affairs had no power to waive the requirement for a person to apply to the FBR under s. 7(3) of the 1956 Act.

30. Ms. McQuaid observed that if there was no FBR system in place Irish citizenship would flow automatically from parent to child regardless of place of birth of either or the degree of active connection with Ireland.

31. Ms. McQuaid provided some statistics. The latest available figures were that, in 2023, 36,878 entries were made on the FBR; and, in 2024, 42,808 applications were made from persons seeking entry on the FBR. In 2017, the Department of Foreign Affairs estimated that there were 115,777 living citizens who had obtained citizenship through the FBR. This figure was likely a fraction of the number of persons who in principle would be entitled to obtain citizenship by that route. Ms. McQuaid noted an estimate provided by Anglia Ruskin University which estimated that as of 2016 there was 3.4 million people in the UK who had an Irish born grandparent and who therefore in principle could apply for citizenship by way of the FBR. Against that backdrop, Ms. McQuaid highlighted the requirement for a person seeking citizenship to take a positive step to be registered.

32. In response to observations by Mr. Collins about delays in the system, Ms. McQuaid noted that there was an exponential increase in applications following Brexit, and that delays were caused by disruptions due to the Covid 19 pandemic. By 2023, delays in the system had reduced from 2.5 years to 9 months. Ms. McQuaid noted that the average time to process an application remained at around 9 months, with some applications taking longer to process due to the need to consider official documentation relating to a number of generations and issued by different jurisdictions. Those delays are unlikely in the case of a foreign-born child of a naturalised parent, which usually are processed within a 9-month period. In terms of costs, there is a fee of €278 for an adult applicant and €153 for a minor.

33. Mr. Collins affirmed a replying affidavit on the 18 June 2025. He stated that in May 2025 a number of Freedom of Information requests had been made on behalf of the applicants. On foot of information received from the Department of Foreign Affairs, Mr. Collins stated that from the 4 October 2012 to mid-May 2025, a total of 5,687 applications had been made in respect of applicants whose parents were naturalised Irish citizens. By reference to that information and the figures given by Ms. McQuaid, Mr. Collins stated that this meant that in 2023 and 2024 (the years referred to by Ms. McQuaid) of the 79,686 people who acquired citizenship via the FBR, a total of 1551 – less than 2% - were children of naturalised Irish citizens.

PRELIMINARY ISSUES

34. The respondents raised a number of preliminary objections to the applicants’ claims for relief. These were (a) that the Minister for Foreign Affairs had not made any decision of the type that was amenable to judicial review, and (b) that the proper Ministerial respondent should have been the Minister for Justice, as the Minister for Foreign Affairs simply administers the FBR and the Minister for Justice is the minister with responsibility for citizenship matters.

35. There is an element of artificiality to the claims for certiorari in this case. I accept the general thrust of the respondents’ complaint that this was not a situation in which the Minister was being called on to make a decision that available under the statutory scheme or to exercise some form of discretion, instead what was expected was a confirmation of a pre-existing fact. It seems reasonably clear that the purpose of the chains of correspondence initiated by Dr. N was to achieve an inevitable confirmation that the Minister could not waive the requirement for S.N.’s citizenship application to proceed on the basis that he was entered on the FBR. I consider that Dr. N and his representatives were fully aware that the 1956 Act did not allow for S.N. to become an Irish citizen other than by pursuing the scheme in the Act. There also is a suggestion in the applicants’ exhibits that part of the reason for the correspondence was to have a decision made in a way and at a time that allowed for judicial review proceedings to be commenced. That is evident from an email within the chain of exhibited correspondence from Dr. N to his solicitor in April 2023 when he states, “I assume this will also reset the clock for submitting our legal challenge.” Nevertheless, the respondents did not raise any issue in relation to the timing of the judicial review proceedings, and it is not necessary for the court to adjudicate on that point.

36. The applicants relied on observations by Dunne J. in Damache v. Minister for Justice and Equality [2022] 1 I.R. 669, where the applicant had sought to quash a statement of intention to revoke citizenship rather than waiting for the actual decision to be made. At para 32 of the judgment, Dunne J. noted that, in general, the remedy of certiorari is designed to quash a

decision that has been reached in excess of jurisdiction or where there is an error on the face of the record. Relief by way of certiorari does not lie where what is challenged is a proposal to make a decision. The Court noted that the situation may be different when the overall purpose of the proceedings is to challenge the constitutionality of the legislation governing the

decision that was proposed. In that regard, Dunne J. stated at para. 33: “[33] I agree with the view expressed by the trial judge to the effect that the circumstances in which a mere proposal can be judicially reviewed are very limited indeed. The trial judge went on to observe that in this case the challenge to any proposed decision was dependent on the challenge to the legislation at issue. Thus, while it is important to emphasise the fact that judicial review will not normally lie for the purpose of seeking to quash a proposal to make a particular decision, this case involves, as was observed in the determination granting leave, “a systemic attack upon the section”, with the result that the principal issue before the court is the question of the constitutionality of s. 19 of the 1956 Act. That being so, counsel on behalf of the Minister in the course of the hearing before this court accepted that the question of prematurity of the proceedings was no longer in issue.” [emphasis added]

37. By analogy with the situation in Damache, the applicants argued that in this case the principal issue was the constitutionality of s.7 of the 1956 Act, and that in those circumstances the preliminary objection raised by the respondents should not prevent the court in the exercise of its discretion determining the case.

38. It can be noted that there is no requirement that constitutional challenges must be brought by way of judicial review proceedings. In fact, in O’Doherty & Waters v. Minister for Health [2023] 2 I.R. 488 at para 36 the Chief Justice noted: “[36] This power clearly confers a discretion on the court to permit a claim for a declaration or injunction with which discretion must, however, be exercised judicially and by reference to the criteria set out in O. 84, r. 18(2) RSC. This indicates that it would be appropriate to grant such a remedy in what can be described, broadly, as public law proceedings and, normally, when relief in the nature of the historic prerogative writs might be claimed. While the court retains a general discretion, it will normally be the case that a challenge to the constitutionality of legislation should only be commenced in judicial review proceedings where it is a necessary part to a challenge of an order or decision which is sought to be quashed, or in respect of which the remedies of mandamus or prohibition, or similar remedies, for the exercise (or nonexercise) of public law powers, duties, or functions, might be sought.”

[emphasis added]

39. In that light, the use of judicial review as a vehicle for this case appears misplaced. The reality is that the entire focus of the case was on the claims relating to the allegedly discriminatory nature and effect of s.7(3) of the 1956 Act, and there was little if any discussion in the applicants’ submissions on whether there should be a grant of certiorari. The Supreme Court has made clear that judicial review proceedings should only be utilised in a constitutional challenge where it is connected to a legitimate claim for relief by way of judicial review. The reality here, it seems to me, is that the claim for relief by way of judicial review was not a serious one, but instead was a launch pad for the constitutional challenge. Likewise, I consider that this situation differed from the situation in Damache. In that case, the proposed decision necessarily preceded an almost inevitable decision relying on the same provisions that were the subject of the constitutional challenge. Even so, despite my very real scepticism about the process utilised by the applicants, I consider that it would not be appropriate to refuse relief in this case on procedural grounds. At the core of the case was an application for a declaration that section 7 (3) of the 1956 Act is unconstitutional and that matter was fully argued.

40. For similar reasons, while I agree with the respondents that the Minister for Justice properly should have been a respondent, it is clear from Mr. Brennan’s affidavit and the involvement of the Attorney General that the interests of the Minister for Justice were represented and that the failure to join that Minister did not in any way prevent the respondents from pursuing the arguments that the State as an entity wished to make. In those premises I am similarly persuaded that this issue does not raise a bar to relief in this case. I will therefore move on to the substantive argument.

OVERVIEW OF THE LEGISLATIVE AND CONSTITUTIONAL CONTEXT FOR

CITIZENSHIP

41. The 1956 Act, as amended, provides in s. 6 that every person born on the island of Ireland is entitled to be an Irish citizen, subject to certain exceptions. In respect of persons who are not born on the island of Ireland, s.7 provides as follows: “7- (1) A person is an Irish citizen from birth if at the time of his or her birth either parent was an Irish citizen or would if alive have been an Irish citizen.

(2) …

(3) Subsection (1) shall not confer Irish citizenship on a person born outside the island of Ireland if the parent through whom he or she derives citizenship was also born outside the island of Ireland unless –

(a) that person’s birth is registered under section 27, or

(b) the parent through whom that person derives citizenship was at the time of that person’s birth abroad in the public service:

Provided that the Irish citizenship of a person who, after 1 July, 1986, is registered under section 27 shall commence only as on and from the date of such registration.”

42. Section 27(2) of the 1956 Act provides that birth outside the island of Ireland of a person deriving citizenship through a parent may be registered in any foreign births entry book or in the foreign births register, and provision is made for the custody of the book and register in ss. 27(1) and (1A).

43. Section 28 provides a facility for persons who claim to be Irish citizens (other than a naturalised Irish citizen) to apply for a certificate of nationality stating that the person is, at the date of the certificate, an Irish citizen. The application can be made to the Minister for Justice, or, if the person is outside the island of Ireland to a consular officer. Section 28 (1) permits the Minister or consular officer to issue a certificate if they are satisfied, inter alia, that “the applicant is an Irish citizen”. [emphasis added]

44. Naturalisation is dealt with in Part 3 of the 1956 Act and s. 14 provides that Irish citizenship may be conferred by means of a certificate of naturalisation granted by the Minister. It can also be noted that by section 18 of the 1956 Act, a person to whom a certificate of naturalisation is granted “shall, from the date of issue and so long as the certificate remains unrevoked, be an Irish citizen.” In that regard, the 1956 Act draws a distinction between a citizen on foot of naturalisation certificates and other citizens. The Minister is empowered by s. 19 of the 1956 Act to revoke a certificate of naturalisation on certain specified grounds. In the case of other citizens, loss of citizenship can only come about though a renunciation of citizenship by lodging a declaration of alienage with the Minister (s. 21 of the 1956 Act).

45. In A, B, & C v. Minister for Foreign Affairs and Trade [2023] IESC 10, the Supreme Court considered various elements in the 1956 Act and their constitutional context. The issue before the Supreme Court was different to the issue in this case as it related to the recognition of a foreign adoption order and the meaning in its proper context of the word “parent” in the 1956 Act. However, the consideration of the history and context of the 1956 Act is very helpful.

46. As noted by Murray J. at para. 14 of his judgment: “Since its first citizenship legislation, the law of State has acknowledged a version of the jus sanguinis – the principle that citizenship may be determined or acquired by the nationality of one or both parents. The manner in which that principle has been reflected in citizenship laws since independence is relevant to an understanding of the proper interpretation of s. 7(1) as it now stands.”

47. Having considered the position brought about by the Constitution of Saorstát Éireann and the Irish Nationality and Citizenship Act 1935, the Court went on to consider the position following the enactment of Constitution in the light of Article 9, which provided that the future acquisition and loss of Irish citizenship should be determined in accordance with law. In turn that law was expressed in the original version of the 1956 Act. As noted in passing by the Court, the 1956 Act from its commencement made provision for persons born outside Ireland and who derived citizenship from a parent who was also born outside Ireland.

48. The Court noted that s. 6 of the 1956 Act was amended by the Irish Nationality and Citizenship Act 2001 which was introduced to give legislative effect to the changes made to Articles 2 and 3 of the Constitution by the Nineteenth Amendment of the Constitution Act, 1998, the broad effect of which, according to para. 30 of the judgment, “was to … provide that birth on the island of Ireland gave rise to an ‘entitlement’ to citizenship, as opposed to actually conferring citizenship.”

49. Further changes were made following the Twenty-Seventh Amendment of the Constitution Act, 2004 which made significant changes to Article 9 of the Constitution. Following the amendments made in 2004, Article 9 now provides: “1. 1° On the coming into operation of this Constitution any person who was a citizen of Saorstát Éireann immediately before the coming into operation of this Constitution shall become and be a citizen of Ireland. 2° The future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law. 3° No person may be excluded from Irish nationality and citizenship by reason of the sex of such person.

2. 1° Notwithstanding any other provision of this Constitution, 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 is not entitled to Irish citizenship or nationality, unless provided for by law. 2° This section shall not apply to persons born before the date of the enactment of this section.”

50. In terms of the interaction between Article 9.2.1 and s. 7(1) of the 1956 Act, at para. 88, Murray J observed that they are “concerned with different and temporally distinct issues”. Article 9.2.1 is concerned with the conditions attached to citizenship by birth and it applies only to births occurring after it comes into operation. s. 7(1) is “focussed on citizenship by descent.”

51. In a context again where the court was focussed on a different issue, at para 187, Phelan

J. in X v Minister for Foreign Affairs [2025] IEHC 214, noted the effects of the legal arrangements: “187. Undoubtedly, there are obvious legal and factual differences between those born in the State and those born outside the State. The Constitution recognises a fundamental difference between the rights of children born to citizens in Ireland who have a constitutionally protected right (under Articles 2 and 9.2.1.) of the Constitution) and those born abroad who enjoy rights prescribed by statute. The difference here however relates to the source of the right: the Constitution itself or legislation.”

PRINCIPLES APPLICABLE TO AN ARTICLE 40.1 CHALLENGE

52. As reiterated by the Supreme Court on a number of occasions recently, the appropriate general principles to be applied in determining a challenge to the constitutionality of legislation where that challenge is based on Article 40.1 were set out by O’Malley J. in Donnelly v. Minister for Social Protection [2023] 2 I.R. 415.

53. The Donnelly case involved a challenge on constitutional equality grounds to the statutory process for the provision of domiciliary care allowance. As described in more detail below, O’Malley J. distilled a series of general principles from a comprehensive analysis of case law relating to Article 40.1 challenges. These were set out as follows at para 191: “(i) Article 40.1 provides protection against discrimination that is based on arbitrary, capricious or irrational considerations.

(ii) The burden of proof rests upon the party challenging the constitutionality of a law by reference to Article 40.1.

(iii) In assessing whether or not a plaintiff has discharged that burden, the court will have regard to the presumption of constitutionality.

(iv) The court will also have regard to the constitutional separation of powers, and will in particular accord deference to the Oireachtas in relation to legislation dealing with matters of social, fiscal and moral policy.

(v) Where the discrimination is based upon matters that can be said to be intrinsic to the human sense of self, or where it particularly affects members of a group that is vulnerable to prejudice and stereotyping, the court will assess the legislation with particularly close scrutiny. Conversely, where there is no such impact, a lesser level of examination is required.

(vi) The objectives of a legislative measure, and its rationality (or irrationality) and justification (or lack of justification) may in some cases be apparent on its face. Conversely, in other cases it may be necessary to adduce evidence in support of a party's case.”

54. In approaching how those principles operate in the context of these proceedings, it is useful to consider in more detail the manner in which the principles were formulated and explained by the Supreme Court.

55. O’Malley J. started from the proposition that the court must operate on the basis that the statute under consideration enjoys the presumption of constitutionality. Hence, as noted by Hanna J. in Pigs Marketing Board v. Donnelly (Dublin) Ltd [1939] IR 413, the courts must accept as an axiom that a law passed by the elected representatives of the people was presumed to be constitutional unless and until the contrary was clearly shown.

56. Second, in calibrating the intensity of court’s scrutiny, the type of legislation under consideration and the nature of the claim will be important. As Donnelly was concerned with the operation of domiciliary care allowance, the court noted that it was particularly necessary for the courts to respect the role of the legislature in enacting laws concerned with social and revenue matters. The Court noted at para 166 that the “point is that the allocation of different roles by the Constitution means that the courts must be particularly aware of the danger of usurping the task of the legislature and imposing their own choices in the areas under consideration.”

57. While this is not a case involving the allocation of public resources, in the sense that arose in Donnelly, the case is concerned with the legal regime for the acquisition of citizenship; and the task of making legislative provision for the “future acquisition and loss of citizenship” is reserved expressly to the Oireachtas by Article 9.1.2 of the Constitution. Hence, I consider that also is a situation in which the court should be very careful not to usurp the task of the Oireachtas in legislating on matters relating to the acquisition of citizenship.

58. Third, the Supreme Court drew a distinction between a ‘pure equality’ claim and a claim based on the infringement of a substantive constitutional right. If the claim is that the impugned legislation breaches a substantive constitutional right, the court first will consider whether the applicant has that right and whether the legislation in question interferes with that right. In that scenario, the proportionality test as formulated in Heaney v. Ireland [1994] 3 I.R. 593 may be applicable. The position is different if the only claim is that the applicant has been wrongfully excluded from the category of persons who stand to benefit as a result of legislation. In that scenario, the test in Heaney v. Ireland is not applicable.

59. Finally, the Court explained that in a pure equality type claim the nature of the inquiry by the court means that it is unlikely that evidence is required, in the sense that the enactment of legislation is not required to be grounded on a factual assessment capable of later evaluation by a court. As noted by O’Malley J. at para. 177: “The elected representatives of the People are entitled to make choices based purely on their own view of the appropriate policy and are not constitutionally obliged to establish any matter of fact before turning that policy into law. In determining the constitutional validity of a law, the courts are not concerned with what facts the legislators did or did not take into account, but with the objective meaning and effect of what they have enacted.”

60. That final point was reiterated by the Chief Justice in O’Doherty & Waters v. Minister for Health [2023] 2 I.R. 488, where he explained at para. 46: “The essential task of the court is, it follows, to place the challenged statute against the Constitution as it has been interpreted and by a process of logical analysis and reasoning come to a determination on the validity of the provision.

That process may require evidence of the operation or the statute, and the background against which it is to be understood, but it cannot be said that such evidence, and, in particular, evidence as to policy considerations, is an essential element of the task: it is conceivable that the process can be, and often is, performed by argument by reference to certain basic or admitted facts.”

61. The Chief Justice went on to note at para. 68: “The views of the minister introducing legislation, still less the views of ministerial advisers, cannot be necessarily attributed to the members of the Oireachtas enacting the legislation. In Crilly v. T. & J. Farrington Ltd. [2001]

3 I.R. 251, this court reaffirmed the principle that the task of interpreting legislation must be approached by reference to the language used in the enacted statute and rejected the contention that a court was entitled to consider parliamentary debates. The decision of the court was based, in part, upon considerations relating to the separation of powers, and that it was the collective view of the Oireachtas as expressed in the legislation which it adopted which was to be interpreted. Unless a different approach is to be taken in respect of challenges to the constitutionality of legislation — and that has not been argued in this case — then similar considerations apply in this regard.”

62. In addressing the burden of proof in a constitutional challenge, O’Malley J in Donnelly made clear that an applicant will not make out a prima facie case simply by establishing that a statute differentiates between persons or categories of persons. More is required: a prima facie case is made out “where the evidence and arguments put forward by a party are sufficient to justify a ruling in his or her favour, in the absence of rebutting evidence and argument from the opposing party.”

63. Later in her judgment and after setting out the general principles in para. 193, the Court went on to observe that: “The establishment of a prima facie case, therefore, means presenting a case on the basis of which a court could find that the legislation does not have a legitimate objective, or that the discrimination created by it is irrational, arbitrary, capricious or not reasonably capable, when objectively viewed in the light of the social function involved, of supporting the selection or classification complained of. If the party mounting the challenge can do this, then naturally the onus will shift to the State. No novel principles are required.” [emphasis added]

64. The Supreme Court went on to note that in a pure equality claim the legislature is entitled to make policy choices and must therefore be entitled to distinguish between persons. Having regard to the text of Article 40.1, such a challenge can only succeed if the legislative exclusion is based on some constitutionally illegitimate consideration and thus “draws an irrational distinction resulting in some people being treated as inferior for no justifiable reason.”

65. Even if the case involves legislation to which the court should show particular deference, the court will engage in a greater level of scrutiny where the differentiation involves what O’Malley J described as “one or more ‘suspect’ grounds”. The meaning of that term was explained in para 197 where the Court stated: “The guarantee in Article 40.1 is grounded upon the respect due to all human persons. The question here must in the first instance be whether the legislation draws a distinction on the basis of intrinsic aspects of the human personality such as those referred to in Murphy v. Ireland [2014] IESC 19, [2014] 1 I.R.

198. The reason that grounds concerning those intrinsic aspects of human personality are considered “suspect” is that a differentiation based on such grounds may in fact be the result of either irrational prejudices or groundless assumptions. In my view, the obligation of the court under Article 40.1 includes ensuring that groundless assumptions or prejudices have no role in determining the legal rights of the individual.”

ARGUMENTS

66. At the hearing of the action, the applicants explained that they were not placing emphasis on the arguments based in EU law, which had been strongly disputed by the respondents. Accordingly, adopting the framing of the issues contended for by the applicants, the legal issues that fall for determination were as follows:

(a) Is section 7(3) of the Irish Nationality and Citizenship Act 1956 repugnant to the provisions of the constitution, and in particular Articles 40.1, 40.3, 41 and 42A thereof, insofar as it applies to a child of a naturalised Irish parent?

(b) Is Section 7(3) of the 1956 Act contrary to section 3 of the European Convention on Human Rights Act 2003 (as amended) by reason of incompatibility with Articles 8 and 14 of the European Convention on Human Rights (ECHR)?

67. In terms of the factual basis of the claims being made, the applicants emphasised the following:

68. First, the applicants clarified that while the claim in the statement of grounds suggested that this was an instance of discrimination by reference to ethnic characteristics per se, this element was not being pursued.

69. Second, it was asserted that the relief sought exclusively relates to the rights of Irish citizens by naturalisation and their children. In that regard, the applicants took issue with the evidence adduced by the respondents where, as put by Mr. Brennan there was a reference to the risk of an unanticipated surge in persons who had no prior contact with the state seeking to obtain citizenship and potentially reside here.

70. Third, issue was taken with the averment made by Ms. McQuaid, when she noted by reference to the 2016 Anglia Ruskin university estimate that that were 3.4 million people living in the UK alone that had an Irish born grandparent and who would be entitled to citizenship via the FBR, should they choose to exercise their right of application. Ms. McQuaid relied on that statistic to suggest effectively that without the FBR system the number of persons eligible for Irish citizenship would expand continuously with the potential to overwhelm public services.

71. In response to those averments, the applicants sought to clarify that they were not seeking the removal of the FBR system in its totality. In terms of the numbers of persons affected by what was sought by the applicants they rely on figures obtained by Mr. Collins which he describes as follows: "in 2023 and 2024, the two years cited by Ms McQuaid, of 79,686 people who acquired citizenship through the Foreign Birth Register, a total of 1,551 persons - less than 2% - were children of naturalised Irish citizens." The applicants seek to confine their arguments to those 2%, the children of naturalised Irish citizens.

72. The applicants’ legal argument was premised on a contention that s. 7(3) of the 1956 Act does not treat all citizens equally. Rather than treating naturalised Irish citizens the same as citizens born in Ireland, it treats naturalised Irish citizens less favourably as distinct on the basis of their descent from non-Irish people. By this, according to the applicants, s. 7(3) treats naturalised citizens differently on the basis of their descent and origin outside of Ireland.

73. Having regard to the framework set out by O’Malley J. in Donnelly v. Minister for Social Protection, the applicants suggested that the discrimination asserted by them was based on matters that were intrinsic to the human sense of self and affected members of a group that was vulnerable to prejudice. The argument was that this discrimination was based on arbitrary, capricious, or irrational considerations, and there should be no deference to the Oireachtas.

74. The applicants accepted that citizenship by naturalisation can be treated differently to citizenship by birth in the specific instance of revocation of naturalisation pursuant to section 19(1)(c) of the 1956 Act. However, according to the applicants, the Constitution does not distinguish between citizens or require that they be treated differently during the period of their citizenship on the basis of the manner in which they acquired citizenship. As Burns J. noted in Khan v. Minister for Justice [2021] IEHC 789, “Citizenship does not confer a sliding scale of rights dependent on whether one is a naturalised citizen or a citizen by birth…"

75. This leads to the applicants’ arguments that the difference here is not between citizens and non-citizens nor is it between Irish citizens who have never lived in Ireland and those who have resided in Ireland, it is: “between two groups of citizens with proven links to the State”. The applicants highlight that if Dr. N was an Irish-born citizen, his child would automatically be an Irish citizen from birth; but because Dr N is a naturalised Irish citizen, his child can only become an Irish citizen prospectively if and when his birth is registered in the FBR. The applicants assert there is no relevant difference between the two groups of Irish citizens to justify this differential treatment. Having regard to those matters the applicants submit that the appropriate comparator here is an Irish-born citizen and his son.

76. For their part, the respondents submitted that the only proper comparator in this case for Dr. N was any other Irish citizen who was born abroad and whose child was born abroad, and the issue of how they acquired citizenship was not material. The issue of a proper comparator for S.N., as I understood the argument, did not arise as he has not been an Irish citizen and had never been denied citizenship.

77. In their written submissions the applicant stated that section 7(3) of the 1956 Act treats Dr. N differently from other Irish citizens on the basis of his non-Irish descent and origin.

78. The applicants point that in An Blascaod Mór Teoranta v. Commissioner of Public Works (No. 3) [2000] I I.R. 6 the court struck down legislation that created two categories of person based on descent, holding that pedigree was not a legitimate basis for discrimination in the legislation.

79. The applicants go on to identify a comment made by O'Donnell J. in Minister for Justice v. O'Connor [2017] IESC 21 where it was stated at paragraph 21: "The essence of an equality claim is the sense of injustice that someone experiences when a person similarly situated is being treated differently and normally more favourably and in particular if the circumstances are suggestive of a discriminatory ground related to a person's human personality."

80. The applicants submitted that the effect of section 7(3)(a) of the 1956 Act is to suggest that naturalised Irish citizens possess a secondary status of Irishness and in that sense offends the concerns in the Blascaod Mór case about pedigree.

81. With regard to the question of whether there is a legitimate legislative objective to be found in the 1956 Act, the applicants referred to the affidavits of Darragh Brennan and Aisling McQuaid which focus on the effects of section 7(3)(a) of the 1956 Act as it obtains to citizenship by descent. As noted above, the applicants suggest that the respondents are answering the wrong issue and that the applicants’ challenge pertains only to the treatment of naturalised Irish citizens without prejudice to the effect of section 7(3)(a) on any other class of citizens.

82. The applicants accept that ensuring a link between citizens and the State is a legitimate objective. Similarly, the applicants did not contest that requiring citizens by descent to register their children's birth in the FBR may serve the legitimate objective of avoiding granting citizenship to people without a temporal or proximate link to the state. However, they argue that this objective does not justify differential treatment of naturalised citizens compared to Irish born citizens.

83. The applicants referred to the comments of O'Donnell J. in A.P. v. Minister for Justice and Equality [2019] 3 I.R. 317 at paragraph 126 where he stated: "There are obvious differences between citizens and non-citizens in relation to the question of acquisition of the status of citizenship, so there is no necessary inequality in treating citizens and non-citizens differently in relation to the acquisition of citizenship. The procedures under the 1956 Act are a clear example of this, since, by definition, they apply only to non-citizens seeking naturalisation. That decision relates to status, and does not, at least directly, engage other rights."

84. The applicants state, in the light of that comment, that the central question which arises in this case is “after naturalisation, to what extent can the legislature justifiably continue to treat that former non-citizen differently to their peers?" That logically engages the follow-up question which is “following on from that: to what extent can the legislature justifiably treat the children of that former non-citizen differently to their peers?" However, it should be noted that the applicants did not at precisely engage with who the comparator for the child should be.

85. Turning to the question of whether the discrimination is based on arbitrary, capricious or irrational considerations, the applicants draw a distinction between the children of citizens by naturalisation and the children of citizens by descent. It is stated that citizens by naturalisation generally have lived in Ireland for at least five years and have been deemed to be of good character. Furthermore, citizens by naturalisation have sworn an oath of fidelity to the Irish nation, loyalty to the state and to faithfully observe the laws of the state in respect of democratic value. They say that given this demonstrates sworn connection to the State, citizens by naturalisation have demonstrated a link to the State. In those premises it is stated that there is no rational or relevant connection between the legitimate purpose of section 7(3)(a) – ensuring a link between citizens and the State – and placing a burden on naturalised citizens compared to Irish born citizens when passing on citizenship to their children. The applicants argue that under section 7(3)(a), an Irish citizen born in Ireland to Irish parents, who after birth has moved from Ireland and never returned, is treated more favourably than an Irish citizen born overseas who naturalised and spent the rest of their life in Ireland. According to the applicants for the purpose of passing on citizenship, the naturalised Irish citizen is treated the same as the child of the person who left Ireland after their birth and never returned. This it is submitted, was an instance of not treating like for like but of treating unlike alike contrary to Article 40.1.

86. The applicants acknowledged that because the 1956 Act concerns citizenship it is an area in which considerable deference ordinarily is accorded to the elected branches. The applicants admit that as put by the respondents in their statement of opposition, “it is the entitlement of the Oireachtas to determine which persons are entitled to citizenship by birth, by descent, and the conditions for naturalisation". However, they state that the Oireachtas has imposed onerous legislative conditions for naturalisation, and has afforded the executive absolute discretion as to which persons fulfilling those conditions are entitled to citizenship by naturalisation. The applicants submit that the Oireachtas is not entitled to make the said determination in an unconstitutionally discriminatory manner. In that regard the applicants rely on observations made by Phelan J. in X and Z v. Minister for Foreign Affairs [2025] IEHC

214. And in that regard referred to the comments made at paragraphs 201 to 203: “Any legislation passed to provide for the exercise of the State’s powers to determine an entitlement to citizenship may be amenable to challenge under Article 40.1… The State remains at large to condition the circumstances in which an entitlement to citizenship by descent is conferred by law for so long as the conditions are permissible under Article 40.1 which, by its terms, envisages that the State is entitled to have due regard to differences of capacity, physical and moral and of social function in its enactments."

87. With regard to Dr. N, the applicant states that section 7 (3)(a) of the 1956 Act as it pertains to citizenship by naturalisation is unconstitutionally discriminatory. The applicants pray in aid Article 2 of the Constitution which provides, "it is the entitlement and birthright of every person born in the island of Ireland… to be part of the Irish nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland". They say that Dr. N is part of the Irish nation and but for section 7(3)(a) of the 1956 Act his son would also be an Irish citizen. The applicants contend that the effect of section 7(3)(a) of the 1956 Act is to create an unconstitutional distinction between the children of the Irish nation on the basis of the irrelevant consideration of their citizen parent’s origin. According to the applicants, naturalised citizens are as much a part of the nation as Irish born citizens.

88. With regard to other provisions in the Constitution and the Charter the applicants suggest that the child is denied the full complement of rights protection afforded by the Constitution to Irish citizens due to the operation of section 7 (3)(a). In that regard the applicants referred to the comment of O'Donnell J. in A.P. v. Minister for Justice at paragraph

86 where he stated, "A decision in relation to the conferral of citizenship not only confers the entire range of constitutional rights upon such person, but also imposes obligations on the State, both internally in relation to the citizen, and externally in its relations with other states."

DISCUSSION

89. In the first instance, the court must proceed on the basis that the impugned provision enjoys the presumption of constitutionality, and the burden of proof is on the applicants to show that it is not constitutional. Second, as suggested above, I consider that the fact that the question of the acquisition of citizenship is one expressly reserved to the Oireachtas by the Constitution strongly suggests that the legal measures in this area should be afforded deference, given their close relationship to the sovereignty of the State, see observations of O’Donnell J. at para. 86 of A.P. v Minister for Justice [2019] 3 I.R. 317. Third, I do not consider that this is an evidence dependent case. The legal effects of the impugned provisions are quite clear, and it appears to me that the objectives and justification for the measures can be discerned from the provisions themselves and are not dependent on the evidence adduced.

90. It can be noted that the applicants suggest that the evidence properly considered could allow for a situation in which persons in S.N.’s position could become citizens without triggering the type of adverse consequences described by Ms. McQuaid in her evidence. That may well be true, but it does not impact on the proper interpretation and analysis of the legislation under consideration. Instead, in my view, it goes to a different argument, which is that the lines drawn by the legislation could be altered in a way that was consistent with the policy objectives. However, this is not a reason why the legislation as currently framed should be seen as unconstitutional. It seems to me that this is an argument as to policy and how policy objectives could be achieved. As noted in the caselaw, there are many instances where the Oireachtas will have to draw a line and differentiate between people. That process of drawing lines and making decisions that differentiate between potentially affected persons is not in itself unconstitutional, it is an integral part of the legislative process, made by elected representatives that are answerable in a way that the courts are not.

91. As noted above, the provisions of s. 7(3)(a) of the 1956 Act appear inextricably connected to the provisions of Article 9 of the Constitution. Article 9.1.2 makes clear that the future acquisition of Irish nationality and citizenship shall be determined in accordance with law. Neither Dr. N nor S.N. were born on the island of Ireland and accordingly they each fall outside the situation provided for by Article 9.2, neither enjoys a constitutional entitlement to Irish citizenship by virtue of that provision. The Supreme Court has explained that the question of citizenship by descent is a matter to be provided for by statute. The immediate source of their rights, qua citizenship, are statutory.

92. In the case of Dr. N, he is an Irish citizen. The 1956 Act treats naturalised citizens differently to other citizens insofar as the citizenship can be revoked. However, I consider that the applicants are correct in their assertion that the Constitution does not require or mandate that they be treated differently during the period of their citizenship.

93. I disagree that the point of difference in the legislation is based on matters that are intrinsic to the human sense of self. The requirement identified in s. 7(3)(a) is that both the parent and child were born outside the island of Ireland. That requirement is not based on ethnic or racial discrimination but instead based on birth outside the island of Ireland. That requirement operates regardless of the ethnicity or racial background of the potential citizen.

The provision is concerned with place of birth in a narrow sense: whether or not the person was born on the island of Ireland. Once that fact is established, the other features of the applicant are immaterial. In that sense, the provision is not concerned with any other characteristics of the applicant. The place where the applicants were born is irrelevant once it is not Ireland. Moreover, distinguishing between those born on the island of Ireland and others is the factor expressly identified in Article 9.2.1°. As such it seems to me that the case is not one that engages any question of specially protected characteristics of the type discussed in Donnelly v. Minister for Social Protection.

94. Finally for this stage of the analysis I agree with the respondents that this case is properly understood as a “pure equality case” as described in Donnelly v Minister for Social Protection. In addressing the acquisition of citizenship, the legislature has chosen to draw a distinction between those born on the island of Ireland and those born elsewhere. According to s. 6 of the 1956 Act, because Dr. N was a citizen at the time, if S.N. (like his sibling) had been born on the island of Ireland he would have been an Irish citizen. That difference is at the root of the claim that s. 7(3)(a) offends Article 40.1. While the applicants argued that the claims made in this case engaged issues around family rights, it seems to me that the applicants have not established that there is any substantial interference beyond the pure equality aspect of the claim.

95. This narrows the analysis required to whether the difference in treatment described in s. 7(3)(a) of the 1956 Act is grounded in a constitutionally illegitimate consideration or otherwise is arbitrary or capricious.

96. The applicants argued that s.7(3)(a) imposes a “pedigree” test that is unconstitutional. The argument proceeds from the decision of the Supreme Court in An Blascaod Mór Teo. v. Commissioners of Public Works [2000] 1 I.R. 6, in which provisions of An Blascaod Mór National Historic Parks Act 1989 were found unconstitutional. The impugned provisions in that case excluded compulsory purchase powers in respect of the island where the land in question, inter alia, was owned by a person who had owned or occupied it since a date in 1953, and who was ordinarily resident on the island before that date. The provisions were condemned on the basis that the legislation drew a distinction based on the principle of pedigree, which was constitutionally illegitimate.

97. In his judgment for the Supreme Court, Barrington J. observed that the 1989 Act created two categories of landowners: (a) those who were ordinarily resident on the island before the date in 1953 and their lineal descendants, and (b) persons who were not native residents. This was described as “an unusual and dubious classification with ethnic and racial overtones.” The Court observed by reference to Article 40.1 and Quinn’s Supermarket Ltd v. Attorney General [1972] I.R. 1, that the legislature was entitled to classify the citizens into various groups for legislative purposes. In Brennan v. Attorney General [1983] ILRM 449, Barrington

J. had clarified that the classification must be for a legitimate legislative purpose, must be relevant to that purpose, and that each class must be treated fairly. Following from that observation the Supreme Court was unclear what legitimate legislative purpose was fulfilled by the impugned provisions. Further, the Court found that the provision was “based on a principle – that of pedigree – which appears to have no place (outside of the law of succession) in a democratic society committed to the principle of equality.”

98. With respect to the applicants, I consider that the reliance on An Blascaod Mór is misplaced. The critical point here is that the legislation under scrutiny in this case corresponds to provisions in the Constitution that distinguish between persons born on the island of Ireland and who have a citizen parent and those who do not. Whether or not the results of the referendum that led to the amendment of Article 9 amount to an implicit overruling of decision in An Blascaod Mór (as discussed in Constitutional Equality Law, Doyle, 2004, at pages 142 and 143) it is very difficult to understand how a statutory provision that corresponds or responds to the mandate of a constitutional provision can itself be unconstitutional.

99. At the heart of the case, the applicants object to the requirement that S.N.’s birth should be entered on the FBR when no such requirement is in place for children whose parents were born on the island of Ireland. The applicants do not appear to object to the proposition that the State is or should be entitled to have a system of registration to avoid a situation where citizenship passes through generations without any record. The applicants emphasise that in this case Dr. N went through the rigorous process of naturalisation and that this factor demonstrates a legal commitment to the State and is sufficient to distinguish his situation from that of other Irish citizens born outside the island.

100. The position is that the Constitution and the 1956 Act distinguishes between two categories of persons born on the island of Ireland: those with a parent who also was born on the island of Ireland and those who do not. The 1956 Act then provides for the category of persons who were not born on the island of Ireland and whose parent likewise was not born on the island of Ireland. The distinction in s. 7(3)(a) of the 1956 Act does not create or give rise to two categories of citizen depending on how they acquired citizenship. The distinction is not dependent on naturalisation, but applies to all citizens who were not born on the island of Ireland regardless of how they acquired citizenship. Hence, Dr. N is treated in a similar way to someone who for instance was born in the USA to an Irish citizen parent. However, on his reasoning, he should be treated more favourably to such a person because of the fact of his having demonstrated a commitment to the State through naturalisation.

101. When one attempts to interrogate the theory of Dr. N’s case, it is that, having been naturalised, the fact of his birth outside Ireland is something that the Oireachtas is constitutionally prohibited from taking into account when considering the grant of citizenship to his child who also was born outside the State.

102. The case law makes clear that the Oireachtas may legitimately treat people differently. The issue is whether the differentiation is arbitrary or irrational. In Michael & Emma v. The Minister for Social Protection [2021] 3 I.R. 528, and O’Meara v Minister for Social Protection [2024] IESC 1, the Supreme Court reiterated the position set out in Donnelly at para. 195: “… the challenge can only succeed if the legislative exclusion is grounded upon some constitutionally illegitimate consideration, and thus draws an irrational distinction resulting in some people being treated as inferior for no justifiable reason. The Constitution does not permit the court to determine that the plaintiff should be included simply because a more inclusive policy, assimilating more people sharing some relevant characteristic into the class, would be ‘fairer’.”

103. Fundamentally, I agree with the respondents that it is not irrational in principle to bestow benefits to Irish born citizens and Irish citizens who were born outside the State in different ways. The fact that the child of an Irish born parent does not have to be registered on the FBR does not make s. 7(3)(a) of the 1956 Act unlawfully discriminatory for those who do.

In this case it is critically important that there has been no denial of citizenship to S.N. nor any suggestion that citizenship is likely to be withheld if a proper application is made. His citizenship is available, subject to compliance with a relatively straightforward statutory process. I consider that it is permissible for the Oireachtas to make provision for the acquisition of citizenship by persons in the same situation as the first applicant in a way that ensures a link between the citizen applicants and the State. I do not consider that it is invidious to require an Irish citizen who was not born in the State and who last resided in the State in 2016 to have to register on the FBR the birth of his son – who has never resided in the State – as condition of his son acquiring Irish citizenship.

104. In the premises, I am not satisfied that the applicants have made out a case that s. 7(3)(a) of the 1956 Act is unconstitutional.

105. To a similar effect, I am not persuaded that the arguments grounded in the ECHR can succeed. It can be recalled that the primary relief sought in this regard was a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that s. 7(3) of the 1956 Act is incompatible with the State’s obligations under the European Convention on Human Rights and in particular (but not limited to) Article 8, and/or Article 8 read in conjunction with Article 14 thereof, insofar as it applies to a child of a naturalised Irish citizen parent.

106. There was a further claim for a declaration that the Minister acted contrary to section 3(1) of the European Convention on Human Rights Act 2003 in his decision of the 22 February 2024 refusing the application for an Irish passport made on behalf of the first applicant by the second applicant and refusing the application for a certificate of nationality made on behalf of the first applicant by the second applicant.

107. The argument here was based on a combination of Article 8 of the ECHR – the guarantee for respect for family life – and Article 14 – which guarantees that the enjoyment of rights under the ECHR shall be secured without discrimination. The applicants relied on Genovese v. Malta (2014) 58 REHRR 25, and Biao v. Denmark, a decision of the Grand Chamber of the ECtHR delivered on the 24 May 2016. In response, the respondents contended that the cases involved different situations and different legal frameworks to those considered in this case, and that states are afforded a generous margin of appreciation in legislating for matters of citizenship.

108. The court must bear in mind the observations made recently by the Supreme Court in Coolglass Wind Farm Ltd v. An Coimisiún Pleanála [2026] IESC 5. That decision was handed down after the arguments in this case concluded. I consider that it must be considered by the court nevertheless as (a) plainly it is binding on this court, and (b) the formulation of the approach to ECHR claims was framed as a reminder of the general operative principles and was not directed to bringing about any particular alteration in the overall approach to be adopted.

109. The consideration of the ECHR claims arose in response to the manner in which the High Court had dealt an alleged breach of Article 8 of the ECHR by the respondent Commission in the context of the Climate action and Low Carbon Development Act 2015, as amended. In that case, the argument was that the Commission was in breach of its Article 8 obligations by reference to s. 3 of the 2003 by failing to exercise its discretionary power under s.37G(6) of the 2015 Act. In turn the High Court had drawn on the decision of the ECtHR in KlimaSeniorinnen Schweiz v. Switzerland [2024] ECHR 304 ([GC] No. 53600/20 9 April 2024). The High Court had found, inter alia, that article 8 of the ECHR imposed a positive obligation on the State to put in place a legislative and administrative framework with respect to climate change to provide effective protection for human life and health. For reasons concerned with the manner in which the Supreme Court resolved other issues in the appeal, it was not necessary for the Court to engage in a detailed consideration of KlimaSeniorinnen, but the Court made some general observations: “154. In addition to these matters going to the substance of the jurisprudence of the ECtHR, it is necessary to remind ourselves that the ECHR is incorporated in Irish law pursuant to the provisions of the 2003 Act. It has been repeatedly emphasised since the decision of this Court in McD v L [2009] IESC 81, [2010]

2 IR 199, that any argument by reference to the ECHR should not assume that the Convention takes effect of its own force in Irish law and still less that a court should approach any claim as if it were exercising the jurisdiction of the ECtHR. It is necessary in any given case to explain whether reliance is placed on the interpretive obligation under s. 2 or the obligation on organs of the State to perform their functions in a Convention compliant manner, and if so, what consequences follow. In either case the obligation is to interpret the law or perform a function “in a manner compatible with the State's obligations under the Convention provisions”. This places an important constraint on the powers of a court, and sets the lens through which any such claim is to be assessed. Furthermore, it would normally be expected that where issues of interpretation (or application) of the Convention arise, that issues would equally, if not more directly, arise under the Constitution. The claim advanced in KlimaSeniorinnen relied on Article 8's protection of family life, something protected, if anything, more forcefully under Article 41 of the Constitution. The question of a derived right to a clean environment had, moreover, already been addressed by this Court in Friends of the Irish Environment. If the questions of the impact of climate change on the rights of parties were to be comprehensively addressed it is difficult to understand how those rights could be analysed without reference to the Constitution, or, for that matter this Court's decision in Friends of the Irish Environment.

155. However, for reasons already touched on, none of these issues were reached in this case, or on the argument as it developed in this Court, required to be determined. It is sufficient to say on this aspect of the case that while it is apparent that KlimaSeniorinnen is a significant decision in the jurisprudence of the European Court of Human Rights, it is of very limited application, if any, in this case. In any case where it could properly be said to arise, it is to be expected, that it would be carefully analysed, and it is also to be expected, that an argument would be addressed to the provisions of the Constitution consistent with the fact that the Act aims to give further effect to the ECHR, “ subject to the Constitution”.”

110. The claim in this case was grounded primarily in a contention that the performance by the State of its functions set out in s. 7(3)(a) of the 1956 Act was incompatible with its ECHR obligations. The 2003 Act aims to give further effect to the ECHR subject to the Constitution. Here, as discussed, Article 9 of Constitution does not require that the first applicant should be granted citizenship and makes clear that his eligibility for citizenship is a matter to be determined in legislation. The question of whether that legislation is compatible with the ECHR cannot be answered directly by reference to ECtHR jurisprudence. Instead, the argument was made that the existing jurisprudence leads to such a potential finding. In my view this is not the correct conclusion to be drawn from that jurisprudence, and the argument if it was to be accepted would involve this court effectively overreaching and making findings that are not anticipated in the caselaw.

111. Genovese v. Malta, which was decided in 2011, arose from a challenge to the then applicable laws on citizenship in Malta. At the time, the applicant was the child of a British mother and a Maltese father. His parents were not married. The applicant was denied Maltese citizenship because under the relevant law a distinction was drawn between children whose parents were married and children whose parents were not married.

112. The Court noted that the provisions of Article 8 do not guarantee a right to acquire a particular nationality or citizenship. However, an arbitrary denial of citizenship may give rise to an issue because of its impact on the private life of an individual and their social identity. It was in that way that article 8 and article 14 could be engaged in citizenship issues. As the Court noted at para. 33: “While the right to citizenship is not as such a Convention right and while its denial in the present case was not such as to give rise to a violation of Article 8, the Court considers that its impact on the applicant’s social identity was such as to bring it within the general scope and ambit of that Article.”

113. The Court made clear that what it was addressing was a situation in which the applicant was in an analogous situation to other children with a Maltese father and foreign mother, and the only distinguishing factor – which rendered him ineligible to acquire citizenship – was that he was not born to married parents. The Court found that distinguishing on the basis of whether the applicant’s parents were married could not be in pursuant of a legitimate aim. It was that discrimination or difference in treatment that and its effect on his social identity that led to the breach of rights, being a violation of Article 14 in conjunction with Article 8.

114. Although Genovese was concerned with citizenship, it emerged from very different factual and legal issues to those presenting in this case. In the first instance, there is no denial of Irish citizenship. The dispute relates to the taking of a non-onerous administrative step in order to acquire citizenship. Here, S.N. is treated in precisely the same way as any person born outside the island of Ireland to a parent citizen who also was born outside the island of Ireland. Insofar as there is a difference between children born out Ireland to Irish born parents and non- Irish born parents, I consider that this is on foot of legitimate legislative aim: ensuring that there is a level of legislative and administrative control over the acquisition of Irish citizenship by descent.

115. The second case, Biao v Denmark, was concerned with rules for the entry of foreign spouses in a family reunification context. In that case the issue was that the rules for entry operated more favourably for the spouses of Danish born citizens than the spouses of Danish citizens who were born abroad. The first applicant was born in Togo, entered Denmark when he was 22 years old, and obtained a residence permit when he married a Danish citizen. Four years later the couple divorced, and a further four years later the first applicant acquired Danish citizenship. He later married the second applicant, who was from Ghana. The second applicant was denied a residence permit, by reference to the Danish provisions that required the relevant authority to be satisfied that both spouses’ aggregate ties to Denmark were stronger than their attachment to any other country, described as “the attachment requirement”. Following a change in the law, the attachment requirement was disapplied where the resident spouse had been a Danish national for 28 years.

116. The argument made was that the 28 year rule indirectly discriminated between persons who were born Danish citizens and those who had acquired citizenship later in life. It was notable that, unlike in this case, the Danish laws on family reunification had been the subject of extensive consideration by the Council of Europe, the Committee of Ministers, the Parliamentary Assembly of the Council of Europe, the European Commission against Racism and Intolerance, the EU, and the United Nations. All of those bodies expressed concern on the impact of the Danish law on family reunification in an immigration context.

117. The applicants’ case in Biao v. Denmark was that the refusal to grant family reunification was in breach of Article 8 when taken in conjunction with Article 14. Clearly that is not an issue in this case. In the first instance, there is no suggestion that if the family returned to Ireland, S.N. as a British citizen would not be permitted entry. Second, there was no denial of citizenship. S.N. is eligible to apply for citizenship and all that is required is entry on the FBR. Hence the situations manifestly are very different.

118. The Grand Chamber focused closely on the ethnic element in the factual consequences of the 28 year requirement in Danish law. As described as para. 138: “That rule favours Danish nationals of Danish ethnic origin, and places at a disadvantage, or has a disproportionately prejudicial effect on persons who acquired Danish nationality later in life and who were of ethnic origins other than Danish.”

119. In this case, section 7(3)(a) of the 1956 Act operates in a fundamentally different manner. The provision does not impede family reunification or prevent S.N. entering the State. It is concerned with the acquisition of citizenship – which is not a direct ECHR issue. The provision does not discriminate on ethnic grounds. It applies to any person who was born outside Ireland and whose parent was born outside Ireland regardless of ethnicity.

120. In those premises, I do not find that the operation of section 7(3)(a) of the 1956 Act has been shown to operate in a manner incompatible with the State’s obligations under Articles 8 and 14 of the Convention. Similarly, insofar as the applicants rely on s. 3 of the 2003 Act, I do not find that the manner in which the Minister refused to waive the statutory requirements relating to certificates of nationality or passports can be treated as having been performed in a manner inconsistent with the ECHR. As I have sought to explain above, the dispute in this case concerns the taking of certain non-onerous administrative steps to acquire citizenship. Where the court already has noted the somewhat artificial nature of the judicial review relief elements in the case, it appears to me that the same infirmity can be identified in the relief sought by reference to s.3 of the 2003 Act.

121. In the circumstances the relief sought by the applicants will be refused. I will list the matter for final argument before me at 10.30am on Tuesday, the 9 June 2026.