Supreme Court allowed Minister's appeal, quashing High Court order as scheme did not require constitutional review.

THE SUPREME COURT

[S.C. No: 483/2006]

Murray C.J.

Denham J.

Fennelly J.

Kearns J.

Finnegan J.

BETWEEN/

SAMIR MORRISS GERGES FARES

AND BY ORDER OF THE HIGH COURT OF 12th July, 2006

FLOBATER SAMIR MORISS GERGES FARES

APPLICANTS/RESPONDENTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT/APPELLANT

AND

THE HUMAN RIGHTS COMMISSION AND THE ATTORNEY GENERAL

NOTICE PARTIES

Judgment delivered the 20th day of December, 2007 by Denham J.

1. Issue

At issue in this case is the decision of a Minister of the Government made in an administrative scheme established as an exercise of

executive power, to deal with a unique group of foreign nationals. It is submitted, on the one hand, that, inter alia, in this scheme the

Constitutional and Convention rights of applicants were required to be considered in accordance with law. On the other hand, it was

submitted that neither Constitutional nor Convention rights arose to be considered. Thus the nature of the scheme is at the core of

the appeal, and, with it, the nature of any judicial review. Also, at the kernel of the case is the fact that the position of a foreign

national, who failed in an application under the scheme, remains the same as it was prior to the application, with all relevant

Constitutional and Convention rights yet to be considered.

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

2. Eight Cases

The Minister for Justice, Equality and Law Reform, the respondent/appellant, hereinafter referred to as the 'the Minister', has appealed

from the judgments of the High Court (Finlay Geoghegan J.) in seven cases where the High Court quashed the decision of the Minister

to refuse applications for permission to remain in the State to foreign national parents of Irish born children under a scheme which he

had introduced. In the eighth case the Minister is appealing against the order for costs made in the High Court.

3. These related cases are:

(i) Bode v. The Minister, Appeal No. 485/2006

(ii) Oguekwe v. The Minister, Appeal No. 489/2006

(iii) Dimbo v. The Minister, Appeal No. 484/2006

(iv) Fares v. The Minister, Appeal No. 483/2006

(v) Oviawe v. The Minister, Appeal No. 480/2006

(vi) Duman v. The Minister, Appeal No. 482/2006

(vii) Adio v. The Minister, Appeal No. 481/2006

(viii) Edet v. The Minister, Appeal No. 005/2007

The Minister was represented in all the cases by the same counsel. The same affidavit of Maura Hynes, a principle officer in the

Department of Justice, Equality and Law Reform, was filed in all cases on behalf of the Minister. Similar written submissions were filed

on behalf of the Minister in all cases.

4. The general facts and law relating to the Minister's decision in the administrative scheme in the seven cases are set out in the

Bode judgment. The particular facts, law, and decision of this case are set out herein.

5. Parties

Samir Moriss Gerges Fares, the first named applicant, and hereinafter referred to as 'the first named applicant', is married to Mrs

Sohair Antone Gerges Boulis, who gave birth in the State to Flobater Samir Moriss Gerges Fares, the second named applicant, and

hereinafter referred to as 'the second named applicant', on the 14th September, 2003.

6. Particular Facts

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

The first named applicant is an Egyptian national. On the 1st September, 2003 the first named applicant and his wife entered the

State on a visitor's visa. His wife gave birth to the second named applicant in the State on the 14th September, 2003. All three left

the State on the 13th October, 2003.

The applicants, and the first named applicant's wife (and mother of the second named applicant) re-entered the State on the 10th

March, 2005 using visitors' visas. Both the first named applicant and the second named applicant's mother applied under the IBC 05

Scheme on application forms received on the 22nd March, 2005. On the 19th August, 2005 both applications were refused. The

grounds for the refusal were stated as follows:-

"It is a requirement under the revised arrangements that the applicant is residing in the State with their Irish born child on

a continuous basis since the child's birth. In this case I note from your application form that you have been resident in

Egypt from 13 October 2003 to 10 March 2005. On this basis I am satisfied that you do not meet the criteria for the

granting of permission to remain in the State under the revised arrangements and accordingly your application is hereby

refused."

7. High Court Proceedings

On the 21st November, 2005 the first named applicant was given leave by the High Court (Butler J.) to apply by way of judicial review

for a number of declarations relating to the alleged invalidity of the decision of the Minister to refuse his application under the IBC 05

Scheme. These proceedings together with the Bode case, and the other cases listed in paragraph 3 above, were heard together by

the High Court.

8. High Court Order

The High Court held:-

"There is no substantive difference between the position of the second named applicant as a citizen child and his father

as an applicant under IBC/05 so as to distinguish them in any way from the conclusions which I reached in the Bode

judgment. Accordingly, for the reasons fully set out in that judgment I have concluded:

1. The decision taken by the [Minister] on the application under IBC/05 of the first named applicant as

communicated in the letter dated 19th August, 2005 is unlawful as it was taken in breach of the second named

applicant's rights under Article 40.3 of the Constitution.

2. The decision of the [Minister] on the application under IBC/05 of the first named applicant communicated in the

letter of 19th August, 2005 is unlawful as it was taken in breach of the [Minister's] obligations under s.3(1) of the

European Convention on Human Rights Act, 2003, as it was taken in a manner which is not compatible with the

State's obligations to the second named applicant under article 8 of the Convention."

The High Court granted an order of certiorari quashing the decision of the Minister dated the 19th August, 2005 refusing the

application of the first named applicant under the IBC 05 Scheme, and made an order remitting the application for consideration and

determination by the Minister in accordance with law.

9. Appeal

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

the Bode case.

10. Decision

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

this judgment.

11. Conclusion

The application was misconceived. The IBC 05 Scheme was an administrative scheme established by the Minister exercising executive

power, to deal with a unique group of foreign nationals in a generous manner, on general principles. The parameters of the scheme

were set out clearly, and included a requirement of continuous residence in the State since the birth of the child. There was no

evidence of continuous residence, indeed the evidence was quite to the contrary. In making the decision on this application the

scheme was administered by the Minister within the terms of the scheme.

At no time was it intended, within the ambit of the scheme, that the Minister would consider, or indeed did the Minister consider,

Constitutional or Convention rights of the applicants. Thus the grounds of the application, and of the appeal relating to Constitutional

or Convention rights, were misconceived and premature. Applicants who are unsuccessful in their application under the IBC 05

Scheme remain in the same position as they had been prior to the application. All relevant Constitutional and Convention rights await

consideration.

It is manifestly clear on the facts of this case that the applicants do not come within the criteria of the IBC 05 Scheme, and the

Minister was entitled to so hold. Consequently, I would reverse the decision of the High Court and allow the appeal.

Should the applicants return to the State at a future time issues of the relevant Constitutional or Convention rights of the applicants

may be addressed. However, I am satisfied that the facts of this case, where the family had such an insubstantial connection to the

State, illustrate why the law on Irish born children was changed.