Supreme Court dismisses Minister's appeal, ruling permission to remain existed from July 2005, not upon registration.

[2012] IESC 63

THE SUPREME COURT

323/2010

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

O’Donnell J.

Between:

FAISOL OLUWANIFEMI SULAIMON(an infant),

suing by his Father and Next Friend FATAI A. AYIMLA SULAIMON

Respondent

and

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

Appellant

JUDGMENT of Mr. Justice Hardiman delivered the 21st day of December, 2012.

1. This is the Minister’s appeal from the judgment of the High Court (Mr. Justice Ryan: 9th July 2010) and that Court’s consequent

order of 30th July 2010. By that order the High Court quashed the Minister’s decision of 5th October 2009, to refuse to issue a

Certificate of Nationality to the infant respondent.

2. The titles “the Minister” or “the Appellant” are used in this judgment to refer to the Minister for Justice, Equality and Law Reform.

In general, I have used the form “the appellant” in referring to steps taken or contentions made in the present proceedings. I have

used the form “the Minister” in referring to steps taken in that capacity in the past, in relation to the infant respondent’s application

for a certificate of nationality, or otherwise under the Immigration Act 2004. Where the word “Minister” occurs in a statute, a

reported judgment, official correspondence or other material cited, I have retained it regardless of context.

3. By virtue of s.2 of the Ministers and Secretaries Act 1924, the Minister is a distinct legal entity, a Corporation Sole with perpetual

succession, and an official Seal, and may sue or (as in this case) be sued under his or her official title. The phrases mentioned above

are, as used in this judgment, references to the legal entity created by s.2 of the Act of 1924, and not to any individual holder of the

Office, past or present.

4. The phrases “infant respondent” or, in more personal contexts, “the child” are references to the four year old boy whose

nationality is at issue in these proceedings. He was originally the Applicant, the moving party in this action. Being an infant he was

required to sue through a “next friend”, in this case his father. When he succeeded in the High Court, and the Minister appealed to

this Court, he became the “infant respondent”. His standing and relevant history will shortly be discussed below.

5. The infant respondent’s application for a certificate of Irish nationality, and for an Irish passport, were refused on grounds so

threadbare that I regard the administrative decision which the appellant upholds in these proceedings as not merely being wrong, but

as flying in the face of the ordinary meaning of words and numbers, especially dates.

6. I have two concerns in particular. The first is that the appellant maintained in this case that a particular thing was done only on

the 22nd July 2005 even though correspondence from his department, and an internal departmental record, makes it quite clear that

the relevant thing was done on the 7th July 2005. The whole case turns on the difference between the two dates. Secondly, the

appellant has defended this case without contradicting the infant respondent’s evidence, and without putting forward any evidence of

his own, but in a wholly abstract and theoretical way, on the basis of successive (and inconsistent) hypotheses as to how the

Minister may have thought or acted at different stages of a bureaucratic procedure. In my view this is an inadmissible manner in

which to conduct litigation and has led to the advancing of highly contrived and artificial arguments, such as have brought other

areas of the law into disrepute. It is dispiriting to see State litigation conducted in this way, at public expense. It must also have

subjected the family of the infant respondent to prolonged anxiety and to no little expense.

7. It is on account of the two concerns mentioned above that I offer a judgment of my own in addition to the learned and convincing

judgment of Mr. Justice O’Donnell, which is about to be delivered and with which in general I agree. I have not however considered

the position that would arise (especially in the context of correspondence such as found in this case) if the infant respondent were

marginally on the wrong side of the cut off point created by s.6A(1) of the Irish Nationality and Citizenship Act 1956 (as amended),

and I express no opinion about that. I believe the infant respondent to be comfortably on the right side of that cut off point. The

section is set out and discussed below.

8. Faisol Oluwanifemi Sulaimon (“the infant respondent”) was born in the Rotunda Hospital, Dublin on the 24th August, 2008. He is

therefore now almost four years and four months old. He lives with his father in Tyrrelstown, Dublin 15. The boy’s father is a

naturalised Irish citizen. He has an older sister (born 31st July, 2002 in Ireland and now ten years old). She is an Irish citizen because

she was born in 2002, before Irish law changed dramatically in 2004. The infant respondent has lived in Ireland all his life.

Background.

9. This case is about whether the infant respondent is entitled to a certificate of Irish nationality from the Minister. If he is, then he

can also obtain an Irish passport and be treated for all purposes as an Irish citizen, like his father and sister. The law on this issue is

set out below. For present purposes it comes down to this: his entitlement depends on whether a parent (his father in this instance)

was lawfully resident in Ireland for a total of three of the four years immediately preceding the boy’s birth. “Lawfully resident” means

resident here with the permission of the Minister for Justice. There is no doubt that the father was resident here for well in excess of

the required period; the sole issue in this case is whether he was “lawfully” resident, that is, resident with the permission of the

Minister for three years of the four years immediately preceding Sunday 24th August 2008. The father says he was continuously and

lawfully resident at least since 7th July 2005. The Minister says he was lawfully resident only since 22nd July 2005. This is the nub of

the case.

The Central Event.

10. On the 7th July 2005 (about thirty-seven and a half months before the boy’s birth) a civil servant in the Minister’s department

wrote to the father in relation to his “application for permission to remain in the State”. The Department’s letter continued:

“As an exceptional measure, I am to inform you that the Minister has decided to grant you permission to remain

in the State for two years until 07/07/2007. Your case will be reviewed at the end of this period”. (Emphasis added)

11. The meaning of the words “for two years until 07/07/2007” is the central issue, doggedly disputed between the appellant and the

infant respondent.

12. The father says that this letter demonstrates a permission for him to remain in the State and that this permission was granted on

the 7th July, 2005 and was valid for two years. He was not alone in this view. Very revealingly, the Department itself thought so too

until something happened to make it change its collective mind.

13. We know the Department’s view very precisely because, in 2007, the father made an application for renewal of his permission to

remain. This, too, was granted (subject to certain conditions). In the departmental document, dated the 23rd July 2007, in which a

civil servant recommended to the Minister that the permission to remain should be extended, it is noted:

“Date of permission to remain under IBC/05 granted: 07/07/2005”.

14. This whole case is about the appellant’s attempts to resile from this position. Unless he can do this, the infant respondent must

succeed. The phrase 1BC/05 refers to a policy adopted in 2005 relating to Irish Born Children and their families.

15. Although the note just quoted is of obvious interest its role in the case is merely incidental or illustrative. The infant respondent’s

case stands or falls on the letter of 7 July 2005.

The meaning of the letter.

16. Of course a date may be placed on an official document such as the one described above in error or as a result of some kind of

misunderstanding. But such a thing does not appear to be likely, or even possible, in the present case for the following reasons.

17. The document mentioned above, giving the date on which permission was granted as 07/07/2005, was obtained in the course of

this action by a process of Discovery; so too was the Departmental document in which the Minister was advised to grant the father’s

first application for leave to remain (2005). This recommendation is also dated 7th July 2005. Since the letter of the same date,

quoted above, states in terms that the Minister has (i.e. already) decided to grant permission and since the Minister never does this

without a recommendation one way or another being before him, it is clear that (i) the recommendation, (ii) the Minister’s decision,

and (iii) the letter notifying the father of the Minister’s decision all came into being on the same day, the 7th July, 2005.

18. Even apart from that, the permission to remain was permission to remain in the State “for two years until 7/07/2007”.

Therefore the father was not simply granted permission to remain in the State for a period of two years; he was granted permission

to remain for the period of two years ending on the 7th July, 2007. According to ordinary reckoning of dates and periods of time, that

is a period beginning on the 7th July 2005. The result of this elementary exercise is confirmed by the fact that it was stated

unambiguously (as we have seen) by the Department in an internal document that the 7th July 2005 was the day on which

permission was in fact granted. It was granted by the Minister and subsequently renewed by him. The 7th July 2005 is the only

date on which a period of two years ending on 7th July 2007 can begin.

Why does that matter?

19. This whole case depends on the answer to the question, did the Minister grant permission to remain in the State to the father on

the 7th July 2005, or did the permission (as the appellant claims) only come into being on the 22nd July 2005? If the appellant is

correct, the father will be three days short of the three years of legal residence required - 1092 days instead of 1095. The appellant

says that the three missing days enable him to refuse the child a certificate of citizenship and therefore enable the Department of

Foreign Affairs to refuse him an Irish passport. The Minister and the D.F.A. have done both of these things, on that basis. The infant

respondent has challenged both decisions and succeeded in the High Court (Ryan J.). This is the Minister’s appeal.

Overview.

20. I consider that the decision to refuse this child a certificate of nationality and an Irish passport is not merely wrong but wrong-

headed. It was justified by a bewildering display of unembarrassed casuistry. I use that term in its original sense of a process for

resolving difficult individual cases by the inflexible application of what are alleged to be general rules, often involving a quibbling or

evasive way of dealing with real difficulties.

21. When the infant respondent started his proceedings in November 2009, the appellant was immediately made aware of the

importance being placed on the letter of 7 July 2005. (See the “Statement required to ground application for Judicial Review”,

paragraph E XII) The appellant could see the significance of the phrase “for two years until 07/07/2007”. He sought to avoid the

effect of this phrase by contending:

(a) That the letter did not contain, and did not evidence, a permission.

(b) That a permission could be created only by an immigration officer putting a suitable stamp on an applicant’s

passport, and therefore

(c) The appellant himself cannot, or at least did not, give the father of the infant respondent any permission to remain in

the State.

22. This approach has involved the appellant in two successive, inconsistent, and most improbable statements of what the law

requires and then in a great deal of logic-chopping in an attempt to pummel statutory provisions and the indisputable facts of the

case (mainly documentary) into that peculiar template. It involved the appellant, first, in denying the existence of his own inherent,

and statutory, powers to grant or refuse permission to remain at all. When this theory was thoroughly punctured in the High Court the

appellant came up with a new theory, presented for the first time in the oral argument in this Court: the appellant now admits that he

as Minister had a power to grant permission to remain but stated that he had voluntarily (and therefore consciously) decided to

abstain from using it but instead to permit it to be exercised by an immigration officer. Needless to say, nothing of either sort was

said at the time, and what was said and recorded is totally inconsistent with either theory. Nor was there any evidence on affidavit or

otherwise that the Minister ever actually held or acted on either theory: the argument was advanced at a level of total abstraction.

But it must be said in the same breath that the refusal was not based on discrimination or any sort of malice against the boy himself.

Rather it was based on an extraordinary form of group think within the public service which resulted in the Department of Justice

ignoring its own original, obvious and natural acknowledgement that permission to remain the State was given to the father of the 7th

July 2005. This change of front appears to have happened as soon as the consequences of that first view first became apparent to

the Department, after it read the reasoning which led the Department of Foreign Affairs to refuse the child an Irish passport in 2008.

23. When the total unstatability of the first new theory was exposed in the High Court, the appellant appealed to this Court. To judge

by his written submissions (dated 12 March 2012) he intended to urge the same case on appeal as the one that had failed in the High

Court. But when it came to the oral hearing of the appeal, on the 12th November 2012, the appellant’s Department relied on a new

and different theory, the second of two which it had developed, with great ingenuity, to permit the refusal of a certificate of

nationality, and an Irish passport, to this child. The 12th November, as it happened, was the Monday after Saturday 10th November,

the day the People voted in the “Childrens Referendum”.

24. I simply do not understand why so great an effort has been made over so long a period to deprive a small boy of citizenship in the

country where he has been permitted to reside all his life, a citizenship enjoyed by his father and his sister. If there is a point to the

pain and anxiety caused to the child’s family, the expense to which they have been put and the taxpayers money which has been

spent, it entirely eludes me.

Background to the litigation.

25. To understand the point which the Court must decide it is necessary to give a little background which emerges from the affidavit

evidence which was before the High Court and is before this Court.

26. In October 2008 the father applied to the Department of Foreign Affairs for an Irish passport for his infant son, then three months

old.

27. It was, apparently, in response to this application that the Department of Foreign Affairs (not, at that stage, Justice) developed

the theory on which the State relied in the High Court. Insofar as relevant the Department’s letter of the 31st October, 2008, refusing

the passport, stated:

“In accordance with the Irish Nationality and Citizenship Act 2004 a child will qualify for Irish citizenship if, at the time of

the birth of the child in the island of Ireland, one of his or her parents had reckonable residence in the island of Ireland

during the four years immediately preceding the birth of the child.

Reckonable residence is regarded as residence where he or she had been lawfully resident in the island of Ireland for a

period of not less than three years, or periods the aggregate of which is three years. Periods of unlawful residence,

periods of residence which were for the sole purpose of having an application for refugee status determined or periods of

residence where permission was granted for the purpose of study are excluded from the determination of periods of

reckonable residence”.

28. From a perusal of this letter, and of the Department’s document which was enclosed with it, it appears that the Department of

Foreign Affairs regarded the period between the 7th July 2005 and the 22nd July 2005 as a period of “unlawful residence”.

29. This letter was accompanied by a document headed “Calculation of Reckonable Residency for Children born in the island of Ireland

on or after 01 January 2005”. This document referred to the father’s passport number and gave the dates of “claimed residence” as

being from the 22nd July 2005 to the 7th July 2007. It further stated that the “reckonable residency” was from the 22nd July 2005

to the 7th July 2007.

30. In these proceedings, the claimed residence is from 7 July 2007, and not as stated above. The Department of Foreign Affairs

worked from 22nd July 2007, because that was the date the father was registered in accordance with s.9 of the Act of 2004, and his

passport stamped. Foreign Affairs may not have known, and certainly paid no heed to, anything that happened before the last-

mentioned date.

31. The period of residence between 2005 and 2007 which the Department of Foreign Affairs was prepared to allow amounted to a

total of 716 days. To this must be added a further period of 376 days which elapsed after the father’s permission to remain in the

State was renewed in 2007 and which D.F.A. were also prepared to allow. This period is said to have ended on the 23rd August 2008.

The Birth Certificate says the child was born on Sunday 24th August 2008. If this is so, the shortfall on which the minister relies

seems to be only two days.

Statutory provision on the computation of periods of time.

32. Section 18(h) of the Interpretation Act 2005 provides as follows:

“Periods of Time.

Where a period of time is expressed to begin on or to be reckoned from a particular day, that day shall be deemed to be

included in the period and, where a period of time is expressed to end on or be reckoned to a particular day, that day

shall be deemed to be included in the period”.

33. In this case, there appears to be two periods of time which require to be “reckoned to a particular day”. The first is the period of

four years laid down by s.6A(1) of the Irish Nationality and Citizenship Act 1956 (as amended), being “the period of four years

immediately preceding the person’s birth”. The person’s birth, in this case, took place on Sunday 24th August 2008 so it would appear

that this day is reckonable. The second period is the period of two years mentioned in the Minister’s letter of the 7th July 2005, in

which it was said that the Minister had decided to grant the father “permission to remain in the State for two years until 07/07/2007”.

It would appear, on the basis of the statutory provision cited above that both the period of time to which the two years is reckoned,

7th July 2007, and the date on which that period begins, 7th July 2005, are reckonable.

34. It is true that s.18 of the Interpretation Act applies in its terms only “to the construction of an enactment”, and only the four

year period referred to above is specifically provided in a statute. However, I believe that the ordinary method of reckoning periods of

time to and from a particular date, or a date which is ascertainable, is the same as that provided in the statute. Also, the letter of

07/07/2005 was written in the discharge of a statutory function and should not, I think, be construed other than in accordance with

the Act of 2005.

35. These periods accepted by the D.F.A., when aggregated, amount to 1092 days or thirty-five months and twenty-six days

according to the Department of Foreign Affairs.

36. Since the required period, or aggregate of periods, is three years or 1095 days the child is, on the Department’s computations,

three days short of the period which would secure him Irish nationality and an Irish passport. The true shortfall appears to me to be

only two days, on the D.F.A. figures, because the effect of s.18(h).

37. The Department of Foreign Affairs material exhibited makes no reference to the Department of Justice’s 7th July 2005 letter or its

later note that permission had been granted on the 7th July 2005. Perhaps they did not know of these documents. But it is obvious

from their calculation sheet that if the father’s residency with permission were dated from that date he would meet the 1095 day

threshold with ease.

38. Accordingly, the question in this case relates to the date on which permission was granted. The genesis of the appellant’s present

view can be found in the computation sheet already referred to. The first column reads “passport number” and under it the number of

the father’s passport is given. The second column is entitled “page number”, and this column contains the figure “five”.

39. On page 5 of the father’s passport, under the title “Visas” there is a stamped endorsement, in a quadrilateral box which says

“permitted to remain in Ireland until…”.

40. There is then added in handwriting the words “07 July 07”. This is followed by a signature which itself is followed by the stamped

words “for Minister for Justice Equality and Law Reform”. Underneath this, in a separate box there is a date stamp 22nd July 2005.

The kernel of the Appellant’s case.

41. The facts just set out are the origin and basis of the case argued on the part of the Minister in the High Court, and also of the

case argued on his behalf on this appeal, which was a somewhat different one.

42. The appellant is saying that, notwithstanding the content of the letter of 7 July 2005, no permission actually came into effect

until the immigration officer endorsed the stamps just described on the father’s passport two weeks and one day after the

Minister had granted permission. The Minister says there was no permission until those stamps were placed on the passport. He says

that it is important for the administration of the immigration system that this should be so. The infant respondent; through his father,

says that this requirement is an invented one, without any foundation in the statutes.

43. It is necessary now to turn to the statutory provisions applicable to the child’s application for a Certificate of Nationality, in order

to see what substance there is in the Minister’s case. These provisions are not intrinsically complex or difficult to understand. But

they suffer from the endemic fault of Irish legislation, which is a failure to set out all the statutory provisions relevant to a particular

subject matter in one place, and a habit of introducing changes by insertion in older statutes, so that the same Act may have several

different forms.

Statutory provisions.

44. The first important statutory provision is s.5 of the Immigration Act 2004. The relevant parts of this provision are as follows:

“5 - (1) No non-national may be in the State other than in accordance with the terms of any permission given to him or

her before the passing of this Act, or a permission given under this Act after such passing, by or on behalf of the

Minister. (Emphasis added)

(2) A non-national who is in the State in contravention of subsection (1) is for all purposes unlawfully present in the

State.”

45. The significance of this provision will be discussed below, when the provision in relation to the entitlement of an Irish born child to

Irish citizenship has been considered.

46. This involves a perusal of s.6A of the Irish Nationality and Citizenship Act 1956 (as inserted by s.4 of the Irish Nationality and

Citizenship Act 2004). The earlier Act now provides as follows at s.6A(1):

“A person born in the island of Ireland shall not be entitled to be an Irish citizen unless a parent of that person has,

during the period of four years immediately preceding the person’s birth, been resident in the island of Ireland for a period

of not less than three years, or periods the aggregate of which is not less than three years.” (Emphasis added)

47. This is the claimed basis of the Minister’s refusal.

48. The Act goes on to provide, at s.6B(4), inserted by s.4 of the Irish Nationality and Citizenship Act 2004:

“A period of residence in the State shall not be reckonable for the purpose of calculating a period of residence under s.6A

if

(a) it is in contravention of s.5(1) of the Act of 2004.”

(Emphasis added)

49. This last phrase is a reference to the Immigration Act 2004, Section 5(1), the text of which has already been set out.

50. On the basis of the foregoing provisions only, the precise point of difference between the infant respondent and the appellant

begins to emerge: the appellant says that the father has not three years residence in the four years immediately preceding the child’s

birth because he was resident here with the consent of the Minister for only 1092 days of that time, as opposed to the required 1095

days. The father says this is not so: the plain terms of the permission given to him (made even plainer by the documents obtained on

discovery), show that he had permission from the Minister himself since the 7th July 2005 and that there is absolutely no legal or

statutory warrant for counting the period of his permitted residence only from the date when the immigration officer put a stamp on

his passport. The High Court upheld this point.

51. The appellant sought to dispose of that objection by reference to s.4(1) of the Immigration Act 2004. This provides:

“Subject to the provisions of this Act, an immigration officer may, on behalf of the Minister, given to a non-national a

document, or place on his or her passport or other equivalent document an inscription, authorising the non-national to

land or be in the State (referred to in this Act as ‘a permission’).”

52. The appellant also relies on the definition section of the Act of 2004 which provides that:

“In this Act, except when the context otherwise requires permission shall be construed in accordance with s.4.”

53. The appellant also relies, importantly, on the terms of the letter of the 7th July 2005 other than those set out above. This letter,

in its entirety, is set out in the judgment of O’Donnell J. The relevant provision for present purposes is the contents of the last full

paragraph on the first page of the letter which provides as follows:

“Please note that this letter is not in itself evidence of permission to remain in the State and should not be used for any purpose

other than to register at your local registration office. If you live in the Dublin region this is located at the Immigration Registration

Office, Garda Siochana, 13/14 Burgh Quay, Dublin 2… you will be presented with a certificate of registration which shows that you

have been given permission to remain and which sets out the conditions on which you have been given permission to remain.”

54. This, then, is the basis of the appellant’s case. He says that the letter of the 7th July 2005 is of no evidential significance and

(even if it were) could merely evidence a decision to grant permission. No actual permission comes into being until the passport is

stamped, he says.

55. I cannot agree that the letter of 7th July 2005 is without evidential effect. It was proved by the infant respondent’s father as

being a statement of the Minister made on his behalf by a civil servant in his department. No attempt has been made in evidence to

deprive it of that character. In it, the Minister acknowledges that he has decided to grant the infant respondent’s father permission

to remain in the State for the period of two years ending on the 7th July 2007. The statement that “this letter is not in itself

evidence of permission to remain in the State” is incapable of depriving of the letter of its manifest evidential significance, just as an

I.O.U. is not deprived of its evidential effect by endorsing on it “please note that this document is not of itself evidence of debt”.

56. In this connection it is instructive to look at s.9 of the Immigration Act 2004, which was relied on by the infant respondent.

Insofar as relevant this provides:

“9 - 1(A) A register of non-nationals who have permission to be in the State shall be established and maintained by

registration officers in such manner as the Minister may direct.”

57. This process of registration is what is referred to in the paragraph just cited from the letter on the 7th July 2005. I say this with

some confidence as there is no other process of registration which could be in question. What is of interest for present purposes is

that the register is not a register of non-nationals in general, but a register of non-nationals “who have permission to be in the

State”. Since this is the defining characteristic which gives rise to the requirement to register, it appears to me to follow that that

registration is not also the process creating the state of “having permission”. This section is further discussed below.

58. We have already seen that, in October 2008, the infant respondent’s father applied for an Irish passport in the child’s name and

received a rejection of this request dated the 31st October. That letter and the enclosure showing the calculation of reckonable

residency have been explained and discussed.

59. It appears to be at this stage that the infant respondent’s solicitors, Messrs. Kelleher O’Doherty first became involved. They

complained very coherently to the Department of Foreign Affairs and represented the infant respondent doughtily thereafter. In

response to their complaint to the Department of Foreign Affairs they received a letter dated 27th March, 2009. This letter sets out

the appellant’s case in some considerable detail. Of particular relevance is the third sentence from the end of the letter which reads:

“ the lawfulness or otherwise of a period of residency outside the validity of stamps issued by the Garda National

Immigration Bureau and whether or not these periods are reckonable under the terms of the [2004] Act are both

immigration and citizenship matters. As these matters fall within the responsibility of the [Department of Justice] it is open

to your client to pursue these issues with that Department.”

60. In other words, the D.F.A., having devised the theory which allows the child’s passport to be refused, was now referring the

problem back to the Department of Justice.

61. The Solicitors did indeed take up the matter with the Department of Justice and that Department replied in August 2009 in a letter

whose relevant portion reads:

“For certain non-nationals, periods of lawful residence only commence when an officer of the Garda National

Immigration Bureau decides to issue a stamp on the basis of checks carried to ensure that a person is still meeting all

the conditions that would allow them to remain. The requirement to a new GNIB registration at regular periods allows for

greater control over the immigration process and is a matter of vital importance in calculating reckonable residence.

Lawful residence can only be proved by a thorough examination of the Garda National Immigration Bureau stamps.”

(Emphasis added)

62. If this represents the law then the Minister must succeed and the infant respondent has no case at all. But the infant respondent

points out that the vital statutory provision is s.5(1) of the Act of 2004. For the purpose of that Section it is sufficient that one of

the applicant’s parents should have been resident in the State in accordance with “a permission given under this Act after such

passing, by or on behalf of the Minister”. The Section makes no mention of permission only coming into being when a passport is

stamped.

The Minister’s case as pleaded, and as presented.

63. The basis on which the Minister claims to be entitled to refuse Certificate of Nationality to the infant respondent is set out in

para. 2 of his Statement of Opposition dated the 28th January 2010:

“The applicant’s father was granted permission to be in the State by an immigration officer placing an inscription or stamp

on her [sic] passport on the 22nd July 2005. The period from the 22nd July 2005 to the 7th July 2007 was reckonable.”

64. Accordingly, as mentioned above, the Department calculated that the infant respondent’s father had only 1092 days of residence

with the Minister’s permission in the period reckoned to the child’s birth, whereas he needed 1095 if he was to confer a right to

citizenship on his son. This is the point on which the appellant has taken his stand. The slightly lower figure is produced by the D.F.A.

by a very simple process; they exclude from the computation of permitted residence the time between the Minister’s decision and

letter of the 7th July 2005, and the immigration officer’s stamping the passport on the 22nd July 2005. This was the date when the

father produced himself to register under s.9 of the Immigration Act 2004, discussed below.

65. The argument advanced by the appellant to justify this exclusion originally, and very surprisingly, was that the Minister himself

had no power to grant permission to remain in the State. (See para. 23 of the appellant’s submissions). It was said that “only” an

immigration officer could do this. This is manifest nonsense: s.5 of the Act of 2004, which requires a non-national (with certain

exceptions) to have permission to remain in the State, actually refers to a permission granted “by or on behalf of the Minister”.

66. The appellant himself seems eventually to have realised this because, in the oral submissions in this Court, in November 2012, he

conceded for the first time that he has and his predecessors had power to grant permission to remain in the State. But, he said, in

this case the Minister had voluntarily refrained from exercising this power and left it to an immigration officer. This view of events was

advanced in legal argument but no evidence, by affidavit or otherwise, was advanced to support the proposition that the Minister had

actually taken that view of this case at any stage of the process. The departmental notation naming the 7th July 2005 as the day on

which permission to remain “was granted” was simply omitted from this analysis. It is manifestly inconsistent with the appellant’s

case, either as originally advanced or as argued on appeal. More importantly, so is the letter of that date, recording the Minister’s

decision to grant permission.

The narrow ground.

67. This narrow ground, then, is what the case comes down to. For the purpose of the present case, by reason of the statutory

provisions cited above, the father’s residence in the State was lawful so long as it did not contravene s.5(1) of the Act of 2004. It

would not contravene that section if his residence was in accordance with a Ministerial permission. But the Minister says that no

permission can be acknowledged for this purpose unless it is stamped on the father’s passport by an immigration officer. The infant

respondent, through his father, says that this is pure wishful thinking: it is based on a reading of words into the Act, to facilitate the

appellant’s case, words which the Oireachtas did not enact when the Act was passed in 2004. Equally the father says, (but this is a

subsidiary point) that he was never told in the letter of the 7th July 2005 that he had to register with the GNIB before he had

permission to remain in the State. He did not indeed receive the letter until 11th July 2005.

The Minister’s power.

68. It is very remarkable that the appellant should have advanced an argument in the High Court to the effect that the power to

grant permission to remain was vested in the immigration officer to the exclusion of himself as Minister. It has long been established

that the power to decide what non-nationals may enter the State, and who must leave it, and what non-nationals may stay in the

State and for how long is an important aspect of the sovereignty of the State itself, which is asserted in Articles 1 and 5 of the

Constitution. The absolutely fundamental nature of this power, and of its exercise by the Minister for Justice, has been amply

established in a large number of cases of high authority. For present purposes it is unnecessary to look further than Bode v. The

Minister for Justice etc. [2008] 3 IR 663. In the words of Denham J. (as she then was), at p.689 of the Report:

“In this case one of the fundamental powers of a State arises for consideration. In every State, of whatever model, the

State has the power to control the entry, the residency and the exit of foreign nationals. This power is an aspect of the

executive power to protect the integrity of the State. It has long been recognised that in Ireland this executive power

is exercised by the Minister [for Justice] on behalf of the State”. (Emphasis added)

The High Court decision.

69. The learned trial judge in this case (Ryan J.) gave judgment on the 9th July 2010. It is plain from para. 8 of this judgment that the

infant respondent’s substantive contention was the same in the High Court as it is in this Court:

“there is no statutory basis for the Minister’s insistence on the father having immigration stamps on his passport in order

for his residence in Ireland to be reckonable”.

70. It will be recalled that the form of the infant respondent’s proceedings was an application to quash the Minister’s refusal of the

respondent’s application for a certificate of citizenship. This issue was resolved in his favour by the learned High Court judge. I would

endorse, with great respect, what is said at para. 18 of the judgment as follows:

“There is no question but that the applicant’s father has actually been living here for more than the required statutory

period. There is no doubt that he has been in continuous residence since 7th July 2005. And it is also clear that his

presence in the country has been with the permission of the Minister. So what is the problem? It is said that he has been

in the State otherwise than in accordance with a permission that comes within the definition of the Immigration Act 2004.

On the respondent’s case, even if the Minister gave permission using his official seal that would still not be sufficient. The

argument is that the only permission that conforms to the statutory requirement is permission given by an immigration

officer in the form of a document or an inscription and nobody else, not even the Minister himself, can provide a

permission that is in any respect lawful and effective. It should be remembered that the immigration officer can only

exercise this function ‘on behalf of the Minister’. If the respondent’s interpretation were correct the principal would

be unable to do what his agent was authorised to do on his behalf.” (Emphasis added)

71. The very radical nature of the appellant’s case can be seen clearly from this quotation. He went so far as to contend that he

himself had no power to give permission to remain in the State; that such permission could only be given by an immigration officer.

This contention is indeed a remarkable one for the appellant to have made because it involves him denying that he has a jurisdiction

of his own which (quite apart from its constitutionally grounded inherency) is specifically mentioned in the Act of 2004 on several

occasions. For example, s.5(1) refers to a permission “given under this Act… by or on behalf of the Minister”. Equally, the

immigration officer’s power to give permission to remain is stated to be a power to do so “on behalf of the Minister”, in s.4. The

appellant was actually saying that permission “by or on behalf of the Minister” excluded a permission “by the Minister”.

Refined case on appeal.

72. Although a submission to the effect just summarised was to be found in the written submissions of the appellant, the oral

submissions on appeal radically departed from it. In argument in this Court it was conceded that the Minister had a power to grant

permission to remain. But it was argued that he had voluntarily chosen not to exercise the power at all. This proposition would flatly

contradict the Department’s own records and correspondence and is little short of ludicrous. The appellant never advanced this view

until the hearing of the appeal, seven years and four months after the decision of July 2005. All the surviving evidence is to a

contrary effect. The new approach is not merely unrealistic: it is a negation of reality.

Difficulties with this change of front.

73. It is manifest that there are very considerable difficulties with this change of front on the part of the appellant. If, at the time the

2005 decision was made, the Departmental position was that the Minister had no power to grant permission to remain, then it is

manifest that he did not simply and voluntarily decide not to do so. It is a step too far into unreality to conceive of a Minister

solemnly deciding not to exercise a power which he had not got in the first place. If that was not the Departmental position, the

argument is mere speculation. Even more specifically, the letter of the 7th July 2005 states that the Minister “has decided to grant

permission to remain in the State” to the applicant’s father. This is utterly inconsistent either with the belief that the Minister did not

have power to grant permission to remain or with the proposition that, though he thought he had such power the Minister had

voluntarily decided not to exercise it. The plain fact, as was stated in the Minister’s own files, is that he granted permission to the

applicant’s father to remain, and he did so on the 7th July 2005. He could not have done so earlier because he received his advisers

recommendation only on that day, and he could not have done so later, because the letter of that day referred to his having

(already) done so. This inference is inescapable: the facts admit of no other possibility. The Minister’s own words and records admit

of no other possibility. The appellant’s case is not based on a view of what actually occurred: it is based on a theory conceived years

after the event, of what must be taken to have occurred if the appellant’s view of the law is to be borne out.

74. It is important to stress that neither in this Court nor in the High Court did counsel for the appellant advance any reason for

interpreting the departmental letter, or the note that permission to remain had been granted on the 7th July 2005, in any but their

ordinary and natural meaning. In fact, at least on the hearing of this appeal, counsel did not refer to the note at all. None of the

documents discussed have been disowned or denied in the appellant’s argument.

75. The proposed interpretation of the statutory provisions, the correspondence and the notations in this case puts me in mind of

what was said by the great Welsh Judge, Lord Atkin, in a case about wartime detention, in Liversidge v. Anderson [1942] 1 A.C. 206,

at 245. In that case, a statute allowed the Home Secretary to detain a person without trial “for the duration”, if he had “reasonable

grounds” for believing certain things about him. The Home Secretary said that all that this required was that he himself should believe

that the grounds he had were reasonable: they did not need to be objectively reasonable. Faced with this interpretation of the

statute, Lord Atkin said:

“I know of only one authority which might justify the suggested method of construction: ‘when I use a word’ Humpty

Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less’. ‘The question is’

said Alice, ‘whether you can make words mean so many different things’. ‘The question is’ said Humpty Dumpty, ‘which is

to be master - that’s all’.”

76. The quotations are from Through the Looking Glass by Lewis Carroll. The circumstances of Lord Atkins citation of Lewis Carroll,

the consequences to him of having done so, and the eventual triumph of his view of the law are fully described in Lord Atkin by

Geoffrey Lewis (Butterworths, London, 1983).

77. Notwithstanding the appellant’s arguments, I reiterate that the phrase “permission to remain in the State for two years until

07/07/2007” means a permission to remain from the 7th July 2005 to the 7th July 2007. No rational person would maintain the

contrary in any forum but a court of law. It is important for this court to assert that words in a statute, or in a bureaucratic decision,

will be interpreted in their ordinary and natural meaning unless there is coercive reason to the contrary.

Missing document

78. No document containing the actual grant of permission by the Minister was discovered, but it was accepted on behalf of the

State that a document to that effect must exist somewhere. It is apparently no longer available. No explanation whatever has been

advanced for the most unfortunate coincidence of the loss of this central document in the very case in which the challenge arises.

The infant respondent and his father would not have known the document was missing when proceedings were issued. The document

must bear a date and that date might have obviated the need for this litigation. It is the absence of this document which allows the

scope for the contrived argument which we have heard.

79. The letter of 7th July 2005 states that “the Minister has decided to grant you permission to remain in the State for two years

until 07/07/2007”. The Minister now wishes this to be read as “the Minister has decided that an officer of the GNIB will grant you

permission to remain in the State for a period commencing on the date you present yourself for registration until 07/07/2007”. It is

simply not possible to “read in” these words, just as it is not possible to read words into the statute. In my view, once it is accepted,

as I think it must be for the reasons given above, that the Minister’s permission was “granted” on the 7th July 2005, the infant

respondent must succeed. The letter of July 2005 is itself a historical and evidential fact and cannot now be re-written with

retrospective effect. What is written, is written.

80. I do not for a moment accept that the definition of “permission” in the Act of 2004 excludes the permission conveyed by the

Minister’s letter just referred to. This argument was advanced on the basis that the term permission “shall be construed in

accordance with s.4”.

81. Section 4 certainly creates a power in an immigration officer to grant a permission “on behalf of the Minister”. To judge from the

context and, most obviously, the shoulder note, (“Permission to Land”) this envisages a permission granted by an official at a seaport

or airport and in no way trenches on the Minister’s inherent or statutory power to grant such permission. (I agree with Mr. Justice

O’Donnell for the reasons which he gives, that regard may be had to the shoulder note). Indeed, this ministerial power is restated in

s.4 and s.5. This empowering of an immigration officer in relation to permission to land, or to remain by no means divests the Minister

of his own power to grant permission to remain himself, as his own Department’s correspondence records him as doing, on 7th July

2005.

82. The permission most directly in question here is the permission envisaged by s.5 without which a non-national’s residence in the

country would be “for all purposes” unlawful. This Section specifically envisages a permission given either “by” or “on behalf of” the

Minister. It is stressing the obvious to say that, accordingly, a permission given by the Minister will prevent an applicant’s presence in

the country from being unlawful, but I feel obliged to stress that obvious fact because part at least of the appellant’s submissions

seem to suggest that he does not, or did not, accept the point.

83. It is perhaps equally obvious to say that the immigration officer is, for these purposes, the agent of the Minister and that his

powers derive from his principle. As Ryan J. pointed out it is inconceivable that the agent would have powers denied to the principal.

But this very point was, at one time, trenchantly argued by the appellant.

84. As for the alternative and latest form of the argument, that which at last admitted that the Minister had power to grant

permission to remain in the State, but claimed that he consciously decided not to exercise it; this argument would involve anyone

who accepts it in a total departure from reality. The Minister has never said that he acted in this way. His letter says that he

“decided to grant [the infant respondent’s father] permission to remain” in the country. This is utterly inconsistent with his not having

the power to grant such permission, and equally inconsistent with a decision to refrain from exercising the power. But in my view this

argument in any case fails in limine because there is a total absence of any factual matrix to permit it to be advanced. It amounts to

an argument that a hypothetical Minister might perhaps, in a hypothetical universe, have understood his powers in this way and acted

accordingly. There is in my opinion no standing to advance such an argument unless it is grounded in evidence in some way -

grounded, that is, in the facts of this case, not presented as a mere hypothesis or abstract proposition.

85. Certain areas of the law - those relating to the imposition or the avoidance of taxation and to aspects of Road Traffic Law in

particular - have acquired an unenviable reputation for over subtle arguments which sometimes depend on a willingness to prescind

from reality. Official spokesmen not infrequently disparage such Byzantine technicalities. But this case, in my view, shows that the

State itself may be all too willing to resort to an argument as Byzantine as any I have heard.

The Register.

86. The basis of the appellant’s argument that the permission to remain did not become effective until the infant respondent’s father

had presented himself for registration is based on the father’s obligation to register, contained in s.9(2) of the Immigration Act 2004.

This happened, it is agreed, on the 22nd July, 2005. But what is this Register in which the father was obliged to be registered? It is

the Register established by s.9(1)(a) of the Act of 2004 in the following words:

“A register of non-nationals who have permission to be in the State shall be established and maintained by

registration officers in such manner as the Minister may direct.”

(Emphasis added)

87. This means that, in order to be registered, or to be obliged to register, a non-national must “have permission to be in the State”.

Registration on this Register is what is referred to in the letter of the 7th July 2005 - there is no other process of registration which

could be in question. What is of interest for present purposes is that the Register is not a register of non-nationals in general, but a

register of non-nationals “who have permission to be in the State”; not “who have applied for permission” but “who have permission”.

Since this is the defining characteristic which gives rise to the requirement to register, it appears to me logically to follow that the

permission to be in the State must pre-exist the obligation to register. One must “have” permission before one registers: this is quite

consistent with the Department’s original view that the father had permission as of the 7th July 2005. The Department’s new view has

the ridiculous consequence that the father would have been illegally in Ireland as he made his way, with the Minister’s letter in his

hand, to the Immigration Office in order to register, as he was legally obliged to do.

Conclusion.

88. I would dismiss the appeal and affirm the order of the learned trial judge on the basis that the infant respondent’s father’s first

permission to remain was operative from the 7th July 2005. Since that is sufficient to dispose of the litigation I do not consider it

necessary to consider the question of the date from which the second (2007) permission to remain subsisted. The infant respondent

does not need to win that argument to make up the shortfall between 1092 and 1095 days on which the appellant has taken his

stand.