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Minister failed to follow proper procedures when cancelling Irish passports of two children

By: James Cross BL

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High Court grants judicial review of the decision of the Minister for Foreign Affairs to cancel the Irish passports of two minors, on the grounds that the Minister failed to follow the proper procedures.

Asylum and immigration – judicial review – challenge to decision of the Minister for Foreign Affairs cancelling the passports of two children – father arrived in the State with a student permission – entered into a bogus marriage with an EU national – free movement of persons – permission to reside - an elaborate fraudulent scheme was created by the father to obtain EU Treaty right - “real wife” emerged – she arrived in the State on a student visa - had two children - applied for Irish citizenship on the basis of the father’s long-term residence – divorced his EU citizen wife - father was then granted a ten-year residence – father applied for Irish citizenship - Operation Vantage – found that marriage was one of convenience – not challenged - marriage should be disregarded as a factor in the decision-making process - review decision found that the father had failed to adequately address issues raised by the Minister and failed to allay concerns that he had provided false and misleading information - father ceased to be entitled to any right of residence - Minister wrote to the mother giving an opportunity to address the basis of the citizenship ostensibly afforded to the children - neither parent have a positive permission to be in the State - vulnerable to a proposal to deport – Minister wrote regarding the cancellation of the children’s Irish passports - legal nature of the Minister’s letter - wording of the letter goes well beyond notice of an intention to cancel the passport subject to receiving submissions before a final decision - notice of cancellation – lack of prior notice - wording of such letters needs to be improved - proper approach is that where the Minister is considering cancellation of a passport he should ask himself whether the public interest permits the giving of advance notice of an intention to cancel and if so to afford such notice – alleged arbitrary or capricious action - irrelevant considerations - failure to carry out a proportionally assessment or affording audi alteram partem – disproportionality - unconstitutionality and breach of EU Law - argument doesn’t arise because fair procedures can be read into the statute in any case where they are necessary under the Constitution or EU law – rights of the child - error in placing reliance on information received from the Minister for Justice and Equality - naming of the Minister for Justice and Equality as a respondent - wording of the letter seem to preclude representations.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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