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Supreme Court of Ireland Decisions
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Cite as:  IESC 65
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Judgment Title: Fares & Ors -v- Minister for Justice, Equality & Law Reform & Ors
Composition of Court: Murray C.J., Denham J., Fennelly J., Kearns J., Finnegan J.
Judgment by: Denham J.
Status of Judgment: Approved
THE SUPREME COURT
[S.C. No: 483/2006]
Samir Morriss Gerges Fares
and by order of the High Court of 12th July, 2006
Flobater Samir Moriss Gerges Fares
The Minister for Justice, Equality and Law Reform
The Human Rights Commission and the Attorney General
Judgment delivered the 20th day of December, 2007 by Denham J.
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
3. These related cases are:
(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
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.
6. Particular Facts
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:-
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
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."
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.