Malaysian mother wins action against residency findings which saw child's passport being cancelled

Malaysian mother wins action against residency findings which saw child's passport being cancelled

A Malaysian woman and her four-year-old Irish born daughter have won their High Court challenge over a finding the mother had not met certain residency requirements, leading to the child's Irish passport being cancelled.

The matter must be reconsidered by the Minister for Justice in line with the findings of Mr Justice Max Barrett.

He found a "fundamental error" in the failure of a March 2019 decision by the Minister to address arguments that the woman, who, as a dependant of her husband, had stamp 3 residency here on dates from 2010 should, despite their separation, have continued to hold the stamp 3 permit.

A stamp 3 permit arises from being a dependant of a person with stamp 4 status, which entitles them to reside and work here.

The woman and her husband remain married but are no longer together.

She has been in a relationship for some years with another man who is the father of her daughter born in January 2018.

The child's passport issued in April 2018 on the basis the mother, as required under the Irish Nationality and Citizenship Act, was lawfully resident here for three of the four years before the birth.

The Minister for Foreign Affairs (MFA) later cancelled the passport as issued in error because the reckonable residency requirements had not been met by the mother.

The mother was here on stamp 3 permits on certain dates from 2010. She was on stamp 2 permits (for education/study purposes) on dates from January 2014 into July 2015 after which she had stamp 3 permits on dates up to June 2018.

Her solicitors wrote to the MFA in September 2018 stating her marriage was in some difficulty in 2012 as a result of which her husband would not attend the Garda National Immigration Bureau with her.

Malaysian mother wins action against residency findings which saw child's passport being cancelled

That led to her being refused stamp 3 permission and she got a stamp 2 permit on the basis of being a student at an education institution from March 2012 to July 2015.

She claimed the stamp 3 refusal was an error because her husband was still resident and working here and she was in 2012 still here as his dependant.

Following what the judge described as a "temporary rekindling" of her marital relationship, she got a stamp 3 permit from July 2016.

The MFA concluded, in the absence of evidence from the Department of Justice she was able to show an anterior entitlement to Irish citizenship, she had no entitlement to an Irish passport.

Mr Justice Barrett said that conclusion by the MFA was correct and described as "strikingly reasonable" the MFA's indication, if her stamp 2 was changed to stamp 3 by the Dept of Justice, he would consider a new passport application.

The MFA did not adopt an unreasonable procedure or breach fair procedures in how the matter was handled by his Department, he found.

However, there was a "fundamental error" in the March 2019 decision by the Minister for Justice that his Department could not confirm the woman met the residency requirements, the judge held. There was failure to engage with the key issues raised by the woman's solicitors, to address the consequences arising from her separation and whether she could return to the MFA with an altered stamp status.

Addressing claims the woman had not been candid with the immigration authorities in June 2012 about her relationship status, the judge said the court "has no idea" when exactly her dependency on her husband ceased and he also noted she had denied any wrongdoing. While she may have "some explaining to do" when matters go back to the Minister for Justice, the March 2019 decision should be quashed and the matter reconsidered, he held.

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