Tuesday 21 October 2014

Girl (6) fails to get decision to cancel her passport overturned

Tim Healy

Published 10/07/2014 | 16:34

Three Russian businesmen have been sparring in court.

A SIX-year-old girl born in Ireland to Chinese parents cannot have a decision to cancel her passport overturned after the High Court ruled the Minister for Foreign Affairs was entitled to do so once it was discovered the document had been issued in error by the Passport Office.

The passport was issued in December 2007 although the previous month, her parents, who came here on student visas in 2002, had also obtained a Chinese passport for the child.

Once the Irish passport was issued, the Chinese one was cancelled as under Chinese law she could not also hold a passport for this country.

The Irish passport was renewed in 2011 when the parents also returned to China where the parents found their daughter was not entitled to free education there because she had an Irish passport.

They sought visas to return to Ireland so she could attend school here but that led to the cancellation of the child's passport when the authorities decided it had been originally issued in error due to her having no lawful entitlement to it as she is not and never was an Irish citizen.

Her parents challenged that decision saying it effectively rendered the child stateless.

The Minister for Foreign Affairs and Trade argued that under Section 18 of the 2008 Passports Act he was entitled to cancel if he becomes aware of a fact or circumstance, before or after the passport is issued, which  would have originally permitted him to refuse to issue the document.

Seeking to have the decision overturned by the High Court, the parents' lawyers argued the facts of this case did not come within the meaning of Section 18, that it was unlawful and it would be an arbitrary deprivation of Irish citizenship.  It was also argued, and accepted by both sides, that the parents had not hidden or falsified any information in the passport application.

Yesterday, Mr Justice Michael Peart refused an application to overturn the Minister's decision saying he could see no ambiguity in the 2008 Act.

To interpret the Act as meaning anything other than that the Minister had no power in the first place to issue the passport, and later cancel it due to that error, would not only "do violence" to the plain meaning of words but would create "an absurd situation", the judge said.

It would mean if a passport was issued due to human error, and this was not capable of correction through cancellation, a person could use the document "to deceive others that they were of Irish nationality "and even access all manner of benefits to which an EU citizen may be entitled" although they were not so entitled, he said.

This would "fly in the face of common sense and plain meaning", he added.

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