Michael P. Foran (University of Glasgow) has posted Citizenship as Civic Relationship: U.M. v Minister for Foreign Affairs and Trade [2022] IESC 25 on SSRN. Here is the abstract:
UM v Minister for Foreign Affairs and Trade [2022] IESC 25 (02 June 2022) addresses several important constitutional topics and themes while managing to avoid passing detailed judgment on any of them. In the inferior courts, principles of natural justice and substantive conceptions of residency were centred, resulting in the case turning on determinations relating to the character of one’s presence and the impact that this has upon reciprocal duties owed by the community to the individual. In contrast, the Supreme Court focused on canons of statutory construction, emphasising technical presumptions over those grounded in considerations of natural justice. The result is a decision which rests on a highly particular, somewhat artificial distinction between automatic voiding of refugee status triggered ab initio by virtue of fraud and a prospective revocation triggered by exercise of executive discretion. The possibility of discretionary revocation with automatic and retroactive legal effect is not discussed in any great depth.
In a case such as this, principles of natural justice may have pulled in both directions, forcing statutory construction to balance the principle that fraud unravels everything against the injustice of depriving a child of citizenship based on the sins of the father. Addressing these concerns head on would have required more engaged moral judgment from the Court, but it would have avoided sanitised construction which fails because it does not address in adequate detail an alternative possible construction, equally defensible on a plain reading of the statutes in question. Dunne J correctly stressed that invalidity is a relative and not an absolute concept, rejecting “a hard and fast approach to the difficult issues in this case”. This being the case, the difficult substantive issues themselves deserved more direct engagement as means of resolving technical questions of construction.
