JUDGMENT of Mr. Justice Gerard Hogan delivered on the 3rd day of February 2017
1. This is an appeal with, to say the least, an unusual background. The applicant, Mr. Chesnokov, is now a 78 year old Russian citizen who wishes, for family reasons, to claim Irish citizenship. As it happens, Mr. Chesnokov’s son now resides in Ireland with his own family. If Mr. Chesnokov could claim Irish citizenship it would facilitate him travelling and residing here, thereby enabling him to be involved in the life of his Irish grandchild.
2. Following the refusal on the part of An tArd-Chláraitheoir (“the respondent” or “Registrar General”)) to register him as having been born in Ireland, Mr. Chesnokov duly appealed that decision to the High Court pursuant to s. 60(8) of the Civil Registration Act 2004 (“the 2004 Act”). In the High Court Hedigan J. found for the appellant and directed the registration of his birth by the respondent: see Chesnokov v. An tArd-Chláraitheoir [2015] IEHC 497. The respondent has now appealed that decision to this Court.
3. Mr. Chesnokov is a retired mechanical engineer who now resides in Latvia, albeit that he has spent most of his life in what is now the Russian Federation. His claim to Irish citizenship rests on his assertion that he was born in Dublin in a dwelling house at 5 Henrietta St., on 28th September 1940 and that his mother was attended by his aunt during the delivery. The applicant freely acknowledges that his entire family was Russian and that they were all otherwise citizens of the then USSR.
4. If the applicant was indeed born in Ireland in 1940 then he is automatically entitled to Irish citizenship by reason of such birth: see Irish Nationality and Citizenship Act 1956, s. 6(1) and s. 6(3). The jus soli rule (i.e., the provision of automatic citizenship by reason of birth on Irish soil) was amended only following the passage of the 27th Amendment of the Constitution Act 2004 and the subsequent enactment of the Irish Nationality and Citizenship Act 2004. In any event, the new legislation applies only in respect of persons born in Ireland after the commencement of that Act.
5. A further unusual feature of the case is that his birth was registered by the then Soviet authorities in Moscow on 14th October 1940 as having taken place in Dublin some 16 days earlier. It is important to state at the outset that no one has questioned the validity, the accuracy or, indeed, the authenticity of that birth certificate. I say this because certainly in the absence of such a certificate from the Soviet civil registration authorities the claim that a Soviet citizen could give birth in Dublin in September 1940 and then return to Moscow with a young infant child no later than 16 days afterwards has a highly improbable ring to it.
6. This Court can, after all, take judicial notice of well known and incontestable historical facts concerning that bleak period in European history. The common travel area between the United Kingdom and Ireland was suspended on the outbreak of the Second World War in September 1939, so that passport controls were now fully operative as between the two countries. Soviet nationals were aliens for the purposes of the Aliens Order 1935: see, e.g., Aliens (Exemption) Order 1935 (S.I. No. 80 of 1935). Accordingly, they would have been required to have a visa or some other official permission to travel between Ireland and the UK.
7. In Britain itself, the Battle of Britain was still on-going until the end of October 1940 (only to be followed by the so-called “Blitz”) and Britain herself was under a state of virtual siege. France and the Benelux countries had fallen in the spring and early summer of that year. Further afield, Poland and the then Czechoslovakia were under Nazi control. In Scandinavia, Denmark had fallen in April 1940 and, following the failure of the “Norway campaign” in late April and early May 1940, Norway was firmly in German hands and the Norwegian coast was blockaded. It is true that Sweden was still neutral and, further afield again, the Finnish “Winter War” with the Soviet Union had finished - for the moment - in March 1940. Nevertheless, travel from Finland to the Soviet Union across the freshly fortified Soviet lines across the Karelia (most of which Finland had just ceded to the USSR at the end of the Winter War) could not have been easy, if, indeed, it was possible at all. The three Baltic republics of Latvia, Lithuania and Estonia had, of course, already succumbed to Soviet control in June 1940.
8. The prospects, therefore, for a Soviet national travelling overland (air travel being impossible at the time) with a very young infant from Ireland to Moscow in September/October 1940 would have seemed distinctly unpromising, irrespective of whether she had attempted to travel through either the Scandinavian/Finnish route on the one hand or through Germany and Poland on the other, even assuming that is, that she could have travelled from Ireland through Britain and from there on either to Scandinavia or to continental Europe in the first place - itself a rather large assumption.
9. The present application to An tArd-Chláraitheoir is dated 21st June 2010. The respondent is responsible for managing and controlling the system of civil registration in this State. The respondent’s principal functions are set out under s. 8 of the Civil Registration Act 2004 (“the 2004 Act”) and the include the maintenance of a system of registration in respect of, inter alia, births and marriages. The respondent is charged with the responsibility of registering all births which occur within the State.
10. As Irvine J. has pointed out in the judgment which she has just delivered, the public interest in maintaining the accuracy and integrity of the system of civil registration provided for by the 2004 Act should not be underestimated. The location and date of birth as officially recorded by An tArd Chláraitheoir is of central importance as all of us pass through life. That entry is vital in determining matters such as citizenship, schooling, franchise, employment, retirement, social security payments and pension entitlements. Where possible, the scope and extent of the 2004 Act should be read with these objectives in mind.
The background to the present application
11. Mr. Chesnokov stated that he applied to the respondent pursuant to s. 19(5) of the 2004 Act for late registration of his birth on 21st June 2010 to enable him to be involved in his grandson’s life and visit his family in Ireland. The appellant submitted a number of documents in support of his application including, inter alia, a declaration made by the appellant’s aunt, Ms. Nadezhda Iljinichna Zhirnova, dated 29th April, 2010, a medical certificate confirming her fitness to make the declaration, and declarations made by Mr. Vladimir Gribkov and Mr. Alexey Chesnokov (grandson), regarding the execution of Ms. Zhirnova’s declaration. Correspondence was exchanged between the parties, in respect of the late registration of the appellant’s birth, over a period of approximately three years. Mr. Gribkov and Mr. Alexey Chesnokov also made declarations in their own right, along with a further formal declaration made by a Mr. Leziers Dumess. I will later assess and evaluate the evidential effect of these statements.
12. The respondent’s initial reaction by letter dated 12th July 2010 was to express concern that other than the declarations of relatives and persons known to the family, there was no evidence to prove that this birth occurred in Ireland in the manner claimed. The respondent also indicated that further details as to the circumstances in which Mr. Chesnokov’s mother first came to be in the UK and, subsequently, to be in Ireland needed to be supplied. The writer continued:
13. Mr. Chesnokov submitted further documentation on 25th May 2011, including a copy of his birth certificate issued in Russia on 14th October 1940, which records his place of birth as having been Dublin, Ireland, and a copy of the appellant’s marriage certificate which also records his place of birth as having been Dublin, Ireland, along with a copy of his passport which contains a similar record. A request had been made to the Registry Office in Russia in order to access the original information submitted in connection with the registration of the Mr. Chesnokov’s birth in Moscow in October 1940, but it was confirmed that such information was not available. The statement from the Russian Registry Office, dated 26th January 2011, stated:
“For your request the Department of ZAGS [civil registration office] at Balashikha town of Head Office of ZAGS [civil registration office] of Moscow City, would like to inform you that the archive does not contain the original of the medical birth certificate of Chesnokov Sergey Anatolievich, born in Dublin, Ireland, date of birth 28.09.40, as the period while such papers are being stored is one year. Birth registration notice No. 545 was made by Nickolsko-Arkangelsky Village Council of Reutovsky District of Moscow Province on the 14th of October 1940.”
14. Efforts had been made to obtain some information on the circumstances of the appellant’s mother and aunt being present in Ireland in 1940. The appellant’s parents died in 1983 and 1989 respectively.
15. The aunt, Nadezha Iljunichna Zhirnova, certainly made a formal statement in support of the application on 29th April 2010. In that statement Ms. Zhirnova stated that the child (i.e., Mr. Chesnokov) was born at 8.00am on in Henrietta St. on 28th September 1940 and that she had attended her sister during birth. The aunt added:
“To the best of my knowledge the birth was not registered in Ireland due to the fact that the parents of the baby were citizens of the Soviet Union and were afraid of possible repression from the authorities of the communist regime in the USSR. Later on my sister arrived [in] the Soviet Union with the baby, where she was issued a birth certificate in the form meeting all the requirements of the USSR.”
16. Ms. Zhirnova goes on to give further details regarding the appellant’s parents, saying, for example, that they were both born in 1911 and that she herself had been born in 1920. The aunt is, however, now unfortunately deceased.
17. While Ms. Zhirnova mentioned the singular fact that the child was born at 8.00 am on the morning in question, in many ways the statement is as interesting for what it does not contain, as for what it does. Specifically, the statement does not explain how or why the Chesnokovs came to be in Dublin or how they had travelled here. Nor does she explain how and by what route they returned to the then USSR and arrived back so quickly in Moscow a short period after the birth. The failure on the part of the aunt to address these matters in her statement would seem to weaken its probative value. I will return at a later point in this judgment to this assess this and three other statements which the appellant filed in support of this application.
18. Correspondence was also sent to the Red Cross main office and to its office in Ireland in order to establish the possibility that the appellant’s mother and aunt were part of a group of individuals who were transferred from the UK to Ireland by a charitable organisation. The Red Cross, however, did not have any record of the appellant’s mother.
19. The respondent claims that there was no response to this letter. Mr. Feely, the Registrar General, averred at para. 8 of his replying affidavit that:
“given that the s. 19(5) application had run its course, my office instigated the enquiry procedure pursuant to s. 65 of the Civil Registration Act 2004. The decision was taken as it was considered fair to the appellant to provide for further consideration of the application under a provision that that was conferred explicit powers of enquiry and was more extensive in its scope.”
20. The appellant stated that the decision to instigate the enquiry procedure was not communicated to him at this time. At all events, the appellant’s solicitor wrote again to the respondent on 23rd June 2011, stating that original documents could be submitted and seeking acknowledgment of the letter of 25th May 2011. The appellant’s solicitor followed this with a telephone call on 5th July 2011, and spoke with a Ms. Mary Atkins in the respondent’s office. During the course of that conversation, it was suggested by Ms. Atkins that the appellant’s solicitor contact the Department of Foreign Affairs to ascertain whether any records had been kept by that Department.
21. The appellant’s solicitor subsequently wrote to the respondent by letter dated 22nd August 2011. The letter stated that neither the Department of Foreign Affairs nor the Department of Justice and Equality was able to provide any information regarding Mr. Chesnokov’s mother or his birth in 1940. The letter also enclosed an undertaking by the appellant not to access any public funds in Ireland notably by way of social welfare payments.
22. The appellant’s solicitor then wrote again on 5th October 2011. This letter referred to all documents previously furnished to the respondent’s office and seeking a response. A letter was sent by Ms. Mary Egan of the respondent’s office on 11th October 2011, which stated:
“the evidence presented to date is insufficient to allow the Registrar General to authorise the registration of his birth at the present time. While the aunt in this case, who was present at the birth, could be regarded as a qualified informant, the difficulty is that there is no independent documentary evidence to support the assertions made. On receipt of further information, this application can be examined again, but there must be some evidence in addition to the documents from the Registry Office in Russian Federation that the birth actually took place in Ireland.”
23. The appellant’s solicitor wrote again to the respondent on 22nd June 2012, claiming that the appellant’s aunt was a qualified informant and that this was sufficient for the purpose of the 2004 Act. By this stage, however, Mr. Chesnokov’s aunt had died and the solicitor requested the respondent to review the case. In a letter dated 25th July 2012 Mr. Pat Canning replied on behalf of An tArd Chláraitheoir. Mr. Canning said that, having reviewed the material supplied, there was insufficient evidence and, specifically, “insufficient independent documentary evidence to support the assertions made on behalf of Sergey Chesnokov.”
24. By letter dated 9th August 2012, the appellant’s solicitor sought an appeal of the respondent’s decision pursuant to s. 60(2) of the Act of 2004. On this occasion Mr. Con Connolly replied on behalf of An tArd Chláraitheoir by letter dated 20th September 2012, stated that there was no appeal of a decision made pursuant to s. 65 of the Act of 2004. The letter continued:
“Obviously your client is disadvantaged by the passage of time since 1940, but the fact remains that this office cannot accept uncorroborated statements, whether sworn or otherwise. The fact that the Russian authorities have recorded your client as having been born in Ireland is certainly circumstantial evidence but, without sight of the supporting evidence, which may have been furnished to them, or details of the procedures that were followed at that time of registration, this evidence remains insufficient for the purposes of registering your client’s birth. I regret that this office cannot be of further assistance to your client but please appreciate that under the provisions of s. 65 of the Act, the Registrar General must be satisfied beyond doubt that a birth has occurred in Ireland before he can authorise a registration under the said section.”
25. By letter dated 16th October 2012 Mr. Chesnokov appealed the decision of the appeals officer dated 20th September 2012, pursuant to s. 60(3) of the Act of 2004. (This was, of course, an internal appeal in the manner provided for by the sub-section.). The result of this review was that the original decision was upheld as no new evidence had been submitted. The Registrar General spoke with the appellant’s solicitor by telephone on 30th November 2012 and he asked the solicitor to obtain an affidavit from a witness who had contemporary knowledge of these events and who was not connected to the family, other documents showing the appellant’s place of birth and further detail regarding the circumstances of the travel of the appellant’s family.
26. On 4th March 2013, the appellant’s solicitor wrote to the respondent and provided further documentation including the appellant’s trade union membership card, driving licence and two further statements, from Mr. Leizers Dumess and Mr. Vladimir Ivanovich Gribkov, both friends of the appellant and/or his family. Neither statement contained direct knowledge of the circumstances of the appellant’s birth. The letter also referred to the fact that the Registry Office in Russia only retains documents for one year after the registration of the birth.
27. The statement from Mr. Gribkov, a Russian national living in Moscow, was to the effect that his mother knew the appellant’s mother very well. He said:
“During the war 1941-1945 they did not maintain relationships, but they met each other after the war in the fifties. My mother and I were guests of Liubov [the appellant’s mother] and used to visit her at her place at [her address in Moscow] where I met her son, Sergey. My mother told me that because of the war between England and Germany, Liubov being pregnant turned up in Dublin and as a result she gave birth to her son Sergey in Dublin. Later on, experiencing great difficulties, they travelled to Moscow.”
28. The formal declaration from Mr. Dumess, a Latvia national living in Riga, was to the effect that he came to know Mr. Chesnokov and his mother well. He then stated that:
“One time in 1990 we were sitting at the table and started talking about Ireland. Liubov’ Il’inichna told me that she and her sister went to Ireland in 1940 and that Sergey was born in Dublin. I was surprised and memorised that fact.”
29. A further letter issued from a Mr. Connolly of the respondent’s office on 10th July 2013 which stated that there was nothing additional of substance contained in the enclosures which would permit An tArd Chláraitheoir to authorise the late registration of the appellant’s birth. The letter also enclosed a copy of the letter dated 20th September 2012, which Mr. Connolly stated “comprehensively outlines the position of this office in relation to your client and as regards late registrations in general.” The respondent maintains that this was the date on which his final decision on the matter was communicated to the appellant’s solicitor and, accordingly, that for the purposes of any appeal to the High Court time should run from that date.
30. The correspondence between the parties did not, however, end at that point. By letter dated 7th March 2014, the appellant sought confirmation from the respondent that, in making the decision, he had considered the evidence of the Russian Registry Office and to deliver a final decision in the matter. By letter dated 12th September 2014, Ms. Marie Egan of the respondent’s office replied and stated:
“we have reviewed your client’s application in detail and taking into account all documentation submitted including the letter from Registry Office in Russia dated 26 January 2011. Regretfully, the Registrar General has concluded that there is insufficient evidence to authorise the late registration of your client’s birth.”
31. It is against that factual background that I propose now to consider the terms of the 2004 Act.
The 2004 Act
32. Section 8(1) of the Act of 2004 sets out the principle functions of An tÁrd-Chláraitheoir as follows:-
"8(1) The principal functions of an tArd-Chláraitheoir are:
(a) to maintain, manage and control the system of registration (which shall be known as the Civil Registration Service) established by the repealed enactments of births, stillbirths, adoptions, deaths and marriages, wherever occurring in the State, and of births to which section 26 or 27 applies and deaths to which section 38 or 39 applies,
(b) to extend the Civil Registration Service to decrees of divorce, and decrees of nullity, wherever granted in the State,
(c) where appropriate, to modify and adapt the Civil Registration Service so as to provide for changing needs and circumstances (including the use of electronic or other information technology) in relation to the Service,
(d) for the purposes of the Civil Registration Service, where appropriate, to maintain, adapt, modify and enlarge the registers, indexes and other records established and maintained under the repealed enactments,
(e) to establish and maintain registers and indexes for the purposes of the registration of decrees of divorce and decrees of nullity,
(f) to monitor the operation of this Act,
(g) to make recommendations to the Minister on any measures that are estimated to cost in excess of such amount as may be specified by the Minister from time to time and are, in the opinion of an tArd-Chláraitheoir, necessary to achieve and maintain appropriate standards of efficiency in the Civil Registration Service and, subject to the consent of the Minister, to implement those measures or, instead of or in addition to them, such measures as the Minister may specify in relation to those standards,
(h) to publish guidelines to registrars (within the meaning of section 17) on the operation of this Act,
(i) to initiate and prosecute proceedings in relation to summary offences under this Act or any of the repealed enactments, and
(j) to perform any other functions conferred on him or her by the Minister under subsection (3).”
Part III of the Act of 2004 deals with the registration of births and stillbirths. Section 19 provides:-
“19(1) Subject to the provisions of this Part, when a child is born in the State, it is the duty of:-
(a) the parents or the surviving parent of the child, or
(b) if the parents are dead or incapable through ill health of complying with this subsection, each other qualified informant, unless he or she reasonably believes that another qualified informant has complied with it in relation to the birth,
not later than 3 months from the date of the birth:
(i) to attend before any registrar,
(ii) there, to give to the registrar, to the best of his or her knowledge and belief, the required particulars of the birth, and
(iii) there, to sign the register in the presence of the registrar.
…
(3) Where, owing to non-compliance with subsection (1), a birth is not registered and, having made reasonable efforts to do so, the authority in whose functional area the birth occurred is unable to contact either parent of the child concerned, the authority may give a qualified informant a notice in writing requiring the informant:
(a) to attend before a registrar in the functional area of the authority, at the office of the registrar or at such other (if any) convenient place as may be specified by the authority on or before a day so specified (not being less than 7 days from the date of the notice nor more than 12 months from the date of the birth),
(b) there, to give to the registrar, to the best of his or her knowledge and belief, the required particulars of the birth, and
(c) there to sign the register in the presence of the registrar,
and, unless the birth is registered before the date of the attendance aforesaid, the informant shall comply with the requirement.
(4) Where paragraphs (i) to (iii) of subsection (1) or, as the case may be, paragraphs (a) to (c) of subsection (3) have been complied with in relation to a birth, the registrar concerned shall register the birth in such manner as an tArd-Chláraitheoir may direct.
(5) Where, in relation to the birth of a child:
(a) the parents of the child are dead or incapable through ill health of complying with subsection (1), or
(b) neither the parents nor another qualified informant can be found after all reasonable efforts to do so have been made,
an tArd-Chláraitheoir may cause the birth to be registered on production to him or her of such evidence as he or she considers adequate for the purpose which, in the case referred to in paragraph (b), shall include, if the place where the birth occurred is known, evidence that the Superintendent Registrar of the authority in whose functional area the birth occurred made all reasonable efforts to find the parents or a qualified informant.
(6) In this section “qualified informant”, in relation to the birth of a child, means:
(a) the parents or the surviving parent of the child,
(b) a guardian of the child,
(c) a person present at the birth,
(d) if the birth occurred in a building used as a dwelling or a part of a building so used, any person who was in the building or part at the time of the birth,
(e) if the birth occurred in a hospital or other institution or in a building or a part of a building occupied by any other organisation or enterprise the chief officer of the institution, organisation or enterprise (by whatever name called) or a person authorised by the chief officer to perform his or her functions,
(f) a person having charge of the child, or
(g) a man who duly makes a request under paragraph (c) or (d) of section 22 (2).”
Part VIII of the Act of 2004 deals with appeals and provides for a system of internal appeals and ultimately an appeal to the High Court. Section 60 provides:-
“60(1) Where:
the registrar, an tArd-Chláraitheoir or the authorised officer, as the case may be, shall notify the qualified informant (within the meaning of Part 3 or 5, as may be appropriate) concerned, the parties to the marriage or the person in writing of the reasons for the failure or refusal.
(2) If a person (“the appellant”) affected by a failure or refusal by a person under subsection (1) is dissatisfied with it, he or she may appeal against it by lodging a notice of appeal in writing in a form standing approved by an tArd-Chláraitheoir or in a form to the like effect with the authority concerned, not later than 28 days from the date of his or her receipt of the notification under subsection (1), and the appeal shall be referred by the authority to such officer of the authority (not being the person in relation to whom the appeal is brought) as the authority may determine (“the appeals officer”), and the appeals officer shall determine the appeal.
(3) If an appellant is dissatisfied with the decision of an appeals officer under subsection (2), he or she may appeal against it by lodging a notice of appeal in writing in the form standing approved by an tArd-Chláraitheoir or a form to the like effect with an tArd-Chláraitheoir not more than 28 days after his or her receipt of the decision and an tArd-Chláraitheoir shall determine the appeal and, subject to subsections (6) to (8), the decision shall be final.
(4) The Minister may by regulations make provision in relation to notices of appeal under this section and the procedure to be followed on appeals under this section.
(5) In relation to an appeal under this section, the appeals officer concerned or an tArd-Chláraitheoir, as the case may be:
(a) shall notify the parties concerned in writing of his or her decision in relation to the appeal and of the reasons therefor, and
(b) may give such directions in relation to the registration or correction concerned to the registrar or authorised officer concerned as he or she considers appropriate, and any such direction shall be complied with by the person to whom it is given.
(6) An appeals officer (“the officer”) may revise a decision of another appeals officer under this section if it appears to the officer that the decision was erroneous having regard to evidence first given to the officer, or a fact first made known to the officer, since the date of the decision.
(7) An tArd-Chláraitheoir may revise a decision (including a revised decision under this subsection) of an tArd-Chláraitheoir or an appeals officer if it appears to him or her that the decision was erroneous by reason of a mistake of law or fact.
(8) A person who is dissatisfied with a decision (including a revised decision) of an tArd-Chláraitheoir may appeal against it to the High Court.
(9) A revision under subsection (6) by an appeals officer shall be deemed, for the purpose of subsections (2) to (5) and (7) of this section, to be a decision under subsection (2), and those subsections shall apply and have effect accordingly, with any necessary modifications, in relation to the revision.
(10) A decision or a revision under this section—
(a) shall be in writing and be signed by the person by whom it is made, and
(b) shall, subject to any appeal under this section, have effect in accordance with its terms.
(11) A document purporting to be a decision or a revision of an tArd-Chláraitheoir or an appeals officer shall be deemed to be such a decision or revision and to have been signed by the person purporting to have signed it unless the contrary is shown and shall be prima facie evidence of the decision or revision and it shall not be necessary to prove that that person was an tArd-Chláraitheoir or, as the case may be, an appeals officer.”
Order 84C of the Rules of the Superior Courts.
Order 84C of the Rules of the Superior Courts governs the procedure to be adopted in statutory appeals where (as is in the present case) the relevant procedure is not set out in the parent statute itself. Order 84C provides:
“1(2) Where any enactment provides for an appeal to be made to the High Court or to a judge of the High Court from a decision or determination made or direction given by a person or body, other than a court, which person or body is authorised by any enactment to make such decision or determination or give such direction (in this Order referred to as “the deciding body”), and provision for the procedure applicable is not made either by the enactment concerned or by another Order of these Rules, the procedure set out in the following rules of this Order shall apply, subject to any requirement of the relevant enactment.
2(1) The appeal shall be commenced by way of originating notice of motion (in this Order hereinafter called “the notice of motion”). The notice of motion shall be entitled in the matter of the provision of the enactment pursuant to which the appeal is made. The notice of motion shall name the person making the appeal as appellant and any person who the relevant enactment provides shall be a respondent to the appeal shall be named as a respondent.
(2) The notice of motion shall contain the names and addresses of the appellant and of each respondent. The notice of motion shall specify the relief sought, and the particular provision or provisions of the relevant enactment authorising the granting of such relief.
(3) Where the relevant enactment provides only for appeal to the High Court on a point of law, the notice of motion shall state concisely the point of law on which the appeal is made.
(4) Where the relevant enactment provides that the Court may grant relief consequential upon or in addition to determining the appeal, the notice of motion shall state concisely the consequential or additional relief sought.
(5) Subject to any provision to the contrary in the relevant enactment, the notice of motion shall be issued:
(a) not later than twenty-one days following the giving by the deciding body to the intending appellant of notice of the deciding body’s decision, or
(b) within such further period as the Court, on application made to it by the intending appellant, may allow where the Court is satisfied that there is good and sufficient reason for extending that period and that the extension of the period would not result in an injustice being done to any other person concerned in the matter.”
The power of an t-Ard Chlaratheoir to conduct inquiries under s. 65 of the 2004 Act
“65(1) An tArd-Chláraitheoir may conduct or cause to be conducted such enquiries as he or she considers necessary to ascertain:
(a) whether a birth, stillbirth, death or marriage required to be registered under this Act or the repealed enactments in the register maintained under paragraph (a), (b), (d) or (e), as may be appropriate, of section 13 (1) has occurred and if it has:
(i) whether it has been so registered, and
(ii) if it has been, whether the particulars in relation to it in the entry in the register concerned are correct and complete.
(2) An tArd-Chláraitheoir may, by notice in writing served on a person whom he has reason to believe may be able to provide him or her with information relevant to an inquiry under subsection (1), require the person to provide the information to him or her within such time (not being less than 28 days) from the date of the giving of the notice and in such manner as may be specified in the notice.
(3) If an tArd-Chláraitheoir is satisfied that an event referred to in subsection (1) has occurred and that it has not been registered in the appropriate register referred to in that subsection or, if so registered, that the particulars in the entry in the register concerned in relation to it are incorrect or incomplete, he or she may register the event, or cause it to be registered, in the appropriate register or, as the case may be, correct or complete, or cause to be corrected or completed, the entry aforesaid.”
Is the appeal out of time and, if so, should time be extended?
33. The first question which falls to be determined is whether the appeal is out of time? In his judgment in the High Court Hedigan J. considered that the appeal was within time, but, in my view, it is probably unnecessary in this case to determine when the final decision was taken by An tArd-Chláraitheoir for the purposes of the running of time within the meaning Ord. 84C, r. 2(5)(a). Even if the appeal was out of time (so that, as the respondent contends, the final decision was that taken in July 2013,, rather than September 2014 as the appellant maintains), I consider that it would nonetheless be appropriate to extend time to permit Mr. Chesnokov to appeal.
34. It is clear that this was a very unusual request to which the respondent’s office very properly gave the most anxious and detailed consideration. All sides recognised that the examination of the documents submitted and the issues which a consideration of these presented was not straightforward. In those circumstances, a little delay on the part of the appellant is surely pardonable. It is also striking that the correspondence in September 2014 from the respondent shows that he was willing to consider the matter afresh, provided, of course, that the independent, corroborative evidence of the birth which he had previously sought in 2012 had been supplied.
35. In these circumstances, I consider that the present appeal comes squarely within the rubric of Ord. 84C, r. 2(5)(b). The difficulties inherent in investigating events which happened some 75 years previously in themselves constitute a good and sufficient reason for extending that period. The extension of the period would not, moreover, result in an injustice being done to any other person concerned in the matter. In particular, no prejudice would be caused to An tArd-Chláraitheoir if time were to be extended. In summary, therefore, I take the view that it would be unjust if a complex and difficult case such as the present one was determined on what many might think in the circumstances was a technical time point, especially in the absence of any prejudice to An tArd Chláraitheoir or any other third party.
36. I would, accordingly, vary the order made by Hedigan J. and I would formally extend the time for the purposes of Ord. 84C, r. 2(5)(b) so as to enable the appellant to appeal. In the end, this small variation of the High Court order is of no great practical import, since the net result is really the same, namely, that the appellant’s substantive appeal should be considered on its merits.
The scope of the appeal
37. It is next necessary to consider the scope of the appeal created by s. 60(8) of the 2004 Act. If there was no statutory right of appeal, then any decision of An tArd Chláraitheoir could only be challenged by way of judicial review. In those circumstances the High Court could quash for error of law, including a material misinterpretation of the relevant statutory provisions.
38. As I have already noted, a statutory right of appeal is, however, provided by s. 60(8) of the 2004 Act. This provision is itself quite laconic and it simply provides that a person who is dissatisfied with any decision of an tArd-Chláraitheoir “may appeal against it to the High Court.” No guidance at all is given by the Oireachtas as to what type of appeal is thereby envisaged or what type of jurisdiction it considered the Court might have in the event of a successful appeal. This Court must therefore return to an issue which has troubled the courts since at least the decision of Costello J. in Dunne v. Minister for Fisheries [1984] I.R. 230 and, as the Supreme Court indicated in Orange Communications Ltd. v. Director of Telecommunications Regulation (No.2) [2000] 4 IR 159, seek to determine the proper scope of the appeal by an examination of the legislative provisions and the legislative context.
39. In Dunne Costello J. concluded ([1984] I.R. 230, 240) that by vesting a statutory right of appeal in the High Court:
“…. the Oireachtas must have intended that the Court’s jurisdiction on an appeal should be wider than its powers when exercising its inherent [judicial review] jurisdiction at common law.”
40. Since that decision the courts have been required consistently to return to this question, often in the context of statutory appeals from decisions of specialist administrative bodies. The particular expertise of such bodies in a series of cases in a diverse range of areas such as telecommunications (Orange Communications), financial services (Ulster Bank v. Financial Services Ombudsman [2006] IEHC 323), aviation regulation (Manorcastle Ltd. v. Commission for Aviation Regulation [2008] IEHC 368) and mergers (M. & J. Gleeson Ltd. v. Competition Authority [1999] 1 I.L.R.M. 401, Rye Investments Ltd. v. Competition Authority [2009] IEHC 140). While the wording of the relevant statutory provisions conferring the right of appeal from decisions of specialist administrative bodies has always naturally been of importance, the existence of such specialist expertise on the part of such bodies has also, in practice, often been a decisive factor in persuading the courts that the scope of any statutory appeal should in consequence therefore be more limited than the often bare language of the relevant statutory provision might otherwise suggest.
41. This matter was comprehensively re-examined by both McKechnie J. and Clarke J. in their respective judgments for the Supreme Court in Fitzgibbon v. Law Society [2014] IESC 48, [2016] 2 I.L.R.M. 202. In his judgment in Fitzgibbon, Clarke J. set out the four types of statutory appeals which the Oireachtas has generally seen fit to create in a variety of different statutory contexts ([2016] 2 I.L.R.M. 202, 232):
“Subject to those caveats, it seems to me that one convenient way of categorising appeals is the following:-
(a) A de novo appeal;
(b) An appeal on the record;
(c) An appeal against error, and
(d) An appeal on a point of law.”
42. Pausing at this point, I think that options (a) (de novo appeal) and (d) (appeal on a point of law) can quickly be excluded so far as the present case is concerned. The Oireachtas could scarcely have intended that applications for the registration of a birth, marriage or a death could be re-heard entirely afresh by the High Court. But nor is the appeal to the High Court created by s. 60(8) of the 2004 Act confined to a point of law: had that been the intention of the Oireachtas, it could readily have so provided as it has done in many other instances: see, e.g., Social Welfare (Consolidation) Act 2005, s. 327.
43. It follows, therefore, that employing the taxonomy utilised by Clarke J. in Fitzgibbon, the appeal must either be option (b), namely, an appeal on the record or option (c), namely, an appeal against error. These terms and the differences between them were explained thus by Clarke J. ([2016] 2 I.L.R.M. 202, 233-234):
“While the term ‘de novo appeal’ has a certain broad currency, the term ‘appeal on the record’ is less widely used. However, it seems to me to be an appropriate term to describe a recognised form of appeal which shares one, but not both, of the fundamental characteristics of a de novo appeal which are identified in the preceding section of this judgment. In an appeal on the record, the appellate body must come to its own conclusions as to the proper result of the issues before it without regard to the decision made by the first instance body.
However, and in contrast to a de novo appeal, the default position in respect of an appeal on the record is that the evidence and materials which are properly relied on by the appellate body are the same as those which were before the first instance body.
The critical distinction between an appeal against error and either a de novo appeal or an appeal on the record is that the appellate body does have regard to the determination of the first instance body and must, in order for the appeal to be allowed, be satisfied that the first instance body was in some way in error.
44. Clarke J. accordingly concluded ([2016] 2 I.L.R.M. 202, 234):
“The default position is, therefore, that the appellate body considers the record of the proceedings at first instance (and in the absence of any rules permitting further evidence or materials to be produced only that record) and considers whether the first instance body came to a correct or sustainable decision on the basis of that record. So far as facts involving an assessment of the credibility of witnesses are concerned, then the role of the appellate body is to decide whether there was a sufficient basis disclosed on the record for such findings of fact. The appellate body cannot, of course, reassess questions of pure credibility for it will not, ordinarily, have had the opportunity to assess evidence given by witnesses.”
45. In his judgment in the High Court Hedigan J. concluded, following a comprehensive review of the authorities, that the scope of review was more likely to be a review on the record (i.e., option (b)):
“Looking to the nature of the respondent [body] and the application made herein, it seems to me that this is in the nature of an appeal on the record. This is so because, although there is a considerable skill and expertise in compiling and maintaining the register and making its contents available when and as required, the actual assessment of the evidence submitted to support the application is an exercise in which the Court is in at least as good a position as the respondent. Whilst there may be modus operandi of an expert nature relating to the assessment of the integrity of evidence, nothing of that nature appears here. The documents that were produced to back the applications are not challenged as to their validity. I could understand and accept a need to acknowledge an expertise in, for instance, doubting particular documents from particular countries. That, however, does not arise here. There may be other such areas. In this case, however, all that is involved is an assessment of the evidence produced to support the application. The registrar has assessed that evidence and has not been convinced that it is sufficient to allow him register the appellant’s birth. This is an assessment that the Court, at the least, is in just as good a position to make as the registrar. It is, therefore, in my judgment an appeal on the record. Thus, this Court must come to its own conclusions on the evidence without regard to the decision made by the first instance body. See Clarke J. in Fitzgibbon v The Law Society at para. 5.1.”
46. I find myself in respectful agreement with this analysis, save that I think that in exercising this appellate jurisdiction under s. 60(8) the High Court must, of course, have regard to the particular statutory context of the 2004 Act and the important objectives of clarity and certainty in the civil registration process which this legislation seeks to uphold.
47. Subject to that important qualification, I agree with the reasoning of Hedigan J. It is true that An tArd Chláraitheoir has considerable experience in matters of registration, but it must be recalled that this expertise is essentially one which requires him to evaluate the evidence tendered in support of a particular factual state of affairs (such as the location and date of birth of a particular individual). The evaluation of documentary and other evidence is, however, also a core feature of judicial experience and expertise. Any appeal to the High Court on the documentary record (in the manner explained by Clarke J. in Fitzgibbon) gathered by An tArd Chláraitheoir would not involve the devolution of new or unusual powers of review to judges un-suited by training or experience to perform such functions.
48. This, of course, is in contrast to option (c) in Clarke J.’s analysis, namely, review for error. Option (c) essentially entails the application of the Orange Communications test (namely, whether there was a serious error or a series of such errors) and this is the test which is normally applied in the case of statutory appeals from decisions of specialist administrative tribunals. The more exacting requirements of this test as compared with option (b), appeal on the record, reflect the fact that this test was crafted with the expertise of the original administrative decision-maker in mind. In formulating this test the courts were effectively required to strike a balance between an appropriate level of deference to the expert decision- maker on the one hand and ensuring that the statutory right of appeal remained an effective remedy on the other. The balance struck by Orange Communications, therefore, is one which requires proof of a serious error or a series of such errors on the part of the specialist decision maker before the courts will feel justified in intervening.
49. If, then, the appeal is one on the record, the issue then becomes whether An tArd Chláraitheoir was correct in the decision to which he arrived on the evidence before him? It is to that critical question which I now turn.
Was the decision of the High Court to reverse the decision of An tArd Chláraitheoir correct?
50. In his judgment Hedigan J. helpfully summed up the evidence which was available to An tArd Chláraitheoir:
“The evidence consists of the declaration of Nadezhda Iljinichna Zhirnova of the 29th April 2010; the declarations of Vladimir Gribkov and Alexey Chesnokov concerning Madame Zhirnova’s declaration; a copy of the appellant’s birth certificate issued in Russia on 14th October 1940 recording his birth place as Dublin, Ireland; a copy of the appellant’s marriage certificate recording his place of birth as Dublin; a copy of his passport also stating his birth place as Dublin; the appellant’s trade union membership and driving licence recording his place of birth in Dublin; and, finally, two statements of Leizers Dumess and Vladimir Gribkov containing references to what was known about the appellant’s birth place but no direct evidence. What was missing was any original document which might provide real concrete evidence. Moreover, no details were known of the appellant’s parents’ presence in the United Kingdom and his mother’s presence in Dublin in September 1940, including why they were there, how the appellant’s mother travelled from the United Kingdom to Dublin or from Dublin to Moscow. Efforts by the appellant’s solicitors to obtain such information from the Irish Department of Foreign Affairs and from the Red Cross were unsuccessful. The level of proof required is on the balance of probabilities.”
51. Hedigan J. then went to evaluate the evidence presented by the appellant:
“In order to resolve this matter, it is necessary to consider the context of time and place. It was a time when the world seemed turned upside down. Vast armies swept across international boundaries bringing war, destruction and death on a scale almost unimaginable to the mind of Western Europeans today. Less than nine months after the birth of the appellant, the army of Nazi Germany turned from its conquests in the West and invaded the Soviet Union itself. It brought to that country a tidal wave of savagery, destruction, and death equally unimaginable to us today. That army reached the very suburbs of Moscow before being halted. Almost four years of savage, destructive warfare continued across the Soviet Union until the invader was eventually expelled from the country and finally defeated. Thus, the time was one of horror and confusion. Turning to the context of place, the place where concrete proof of the appellant’s birth might be found is firstly Dublin and then Moscow. The case has been made by the appellant that registering his birth in Dublin might have been perceived as a rejection of Soviet nationality and as something thus anti-Soviet. The registration in Moscow of his birth in Ireland may have required backing documents, but these would not have been retained after one year. So all we have in documentary terms is an extract from the Russian Registry of Births. It seems somewhat surprising, at first, that the appellant does not have any oral history of his parent’s presence in the United Kingdom in 1940 and his mother’s escape from London in the Blitz through Dublin and back to Moscow when she was heavily pregnant and eventually carrying an infant baby.
Yet, taking these absent elements of proof in order and in the context of time and place gives us a somewhat different perspective. The fear of been indicted as guilty of anti-Soviet activity was, as we know today, a very real one. The history of the Gulag Archipelago identifies many humble folk who fell victim to Stalinist paranoia and spent decades in exile in these infamous work camps. Keeping one’s head down was undoubtedly the safest course. The treatment by the Stalinist authorities of those considered contaminated by foreign influence extended, as we know now, even to exiling many Russian soldiers taken prisoner of war by the Nazis. In the light of these risks, silence was always the safest option. Moreover, all human experience teaches us that in a time of war with all its horrors, savagery and social upheaval, a normal human reaction is to forget in order to survive and move on. Thus, I do not find it surprising, in the light of these extraordinary circumstances, that there is little concrete evidence to support the application. However, there is evidence in the birth certificate, the marriage certificate, the passport, the trade union card and driving licence and in the declaration of Madame Zhirnova and the declarations of Vladimir Gribkov and Alexey Chesnokov. The integrity of these documents has not been questioned. Assessing the evidence in the context of time and place, I find that the probability is that Sergey Chesnokov was born on the 28th September 1940 at Number 5 Henrietta Street in the City of Dublin and I will make an order that his birth be registered to that effect.”
52. It may be convenient at this point to re-consider the actual process of reasoning of An tArd-Chláraitheoir as reflected in the various letters written to the appellant’s solicitors. Thus, for example, the letter of 12th July 2010 stated, inter alia:
“…there is no evidence to date to prove that this birth occurred in Ireland as stated…. In addition some independent documentary evidence confirming her presence here will be required….”
53. Likewise, the letter of 20th September 2012 stated:
“….independent documentary evidence that a birth occurred in Ireland is required to register a birth in Ireland….The Registrar General must be satisfied beyond doubt that a birth has occurred [in Ireland].” (emphasis supplied)
54. I cannot avoid thinking that some of this language might have been more happily expressed. First, it is not correct to say that there is no evidence to prove that the birth took place in Ireland. The existence of the 1940 Soviet birth register stating that the appellant was born in Ireland is certainly evidence of that fact: the real question is rather whether, in the special historical circumstances which pertained in September/October 1940, it is sufficient evidence of that fact.
55. Second, neither is it correct to say that An tArd-Chláraitheoir must be satisfied “beyond doubt” that the birth occurred in Ireland. As An tArd-Chláraitheoir himself subsequently recognised in the affidavits filed in the High Court, there was no basis for importing the standard of proof used in criminal trials in the context of the civil standard, namely, the balance of probabilities.
56. Third, it is also incorrect to say that the appellant was required to provide independent documentary evidence that the birth occurred in Ireland: in many circumstances, the existence of a foreign birth certificate recording the birth as being in Ireland might well be sufficient in and of itself for this purpose.
57. The task confronting An tArd Chálaraitheoir in a case such as this was to review and to evaluate the evidence provided and to arrive at a conclusion based on the balance of probabilities as to whether the applicant for registration has established that he or she was born in Ireland. As this was a case where both parents of the child were dead, then the task of An tArd Chláratheoir for the purposes of a late registration application under s. 19(5) of the 2004 Act such as the present one was to cause the birth to be registered on production of “such evidence as he or she considers adequate for the purpose.” Given the remarkable lapse of time since the birth was registered abroad and the other unusual features of the case, it might be thought that a particular onus rested upon the applicant in this case to satisfy An tArd Chláratheoir by reference to all the circumstances of the claim which was now being advanced that there was, in fact, adequate evidence of a birth in Dublin in 1940.
58. What, then, was that evidence? As I stated at the outset of this judgment, the unusual facts of this case make any evaluation of this evidence particularly problematic. How, then, should the documentary and other evidence presented by Mr. Chesnokov be evaluated, not least having regard to the exceptionally long interval since September/October 1940? There is, of course, the singular fact that Mr. Chesnokov’s Russian birth certificate gives the location of his birth as Ireland. To this must be added the fact that, as Hedigan J. pointed out, the integrity of that birth certificate has never been questioned.
59. In ordinary circumstances, this evidence would probably be enough to lead to the inference that the Russian birth certificate correctly stated the facts such that any appeal against an adverse decision on the part of An tArd Chláraitheoir should succeed. After all, it is hard to see what possible benefit there would have been to this family recording with the Soviet authorities in 1940 the existence of a foreign birth in Ireland. Given, moreover, the extreme paranoia and suspicion with which Stalin’s Soviet Union viewed Western Europe - not least a country such as Ireland, which the Soviet nomenklatura would doubtless have viewed at the time as being bourgeois, clericalist and decidedly anti-communist - the act of registration of such a foreign birth was, if anything, likely to bring unwelcome attention to the family from the Soviet authorities.
60. It is true, of course, that Mr. Chesnokov can point to a variety of other documents - such as a trade union card, wedding licence and so forth - which also record Dublin as his place of birth. This admittedly shows a consistent and habitual use of official or semi-official documents throughout Mr. Chesnokov’s life which record what must have been for a Russian of his vintage the decidedly unusual fact of having been born in Dublin. To that extent only (i.e., the consistent and habitual usage) these subsequent documents provide some limited support for Mr. Chesnokov’s claim. But these documents scarcely provide any independent support for this claim of birth in Dublin in September 1940, since these documents are essentially derivative from the original birth certificate.
61. Balanced against this evidence, however, must be the circumstances which historically prevailed in Europe in September and October 1940. It is certainly possible to envisage that the appellant’s mother could have travelled with her young infant from here to the United Kingdom. But even this journey would have presented considerable difficulties given that the mother was (presumably) travelling on a Soviet passport and would thus have required a visa to enter the United Kingdom. In addition, the birth had not been registered, so that the mother would have had no passport or other papers for her child.
62. Even if one then allows that the mother and her son could have arrived in the UK in the very early days of October 1940, the question then arises as to how they could have proceeded further on a trip back to Moscow. All cross-channel shipping between Britain and continental Europe had been suspended. Even if - against all odds - they somehow managed to cross the channel, they would have faced almost insuperable difficulties in proceeding further from the French or Belgian costal areas in which they had landed. The alternative would have been an ultra-hazardous trip across the North Sea to either Denmark or Norway. But as there was no passenger shipping then plying a trade between Britain and Scandinavia, it is hard to see how this could have been achieved.
63. I do not doubt but that, as Hedigan J. observed in his judgment, war-time events have thrown up many instances of remarkable stories, not least where civilians have escaped from one area of conflict to a peaceful destination. The presence in this State of many who have escaped from troubled countries such as Afghanistan, Libya and Syria provides its own contemporary testament of this. There were no doubt many instances where, even during the Second World War, refugees managed to escape from one area of conflict to a zone of safety, such as from Nazi Germany into Switzerland or from Vichy France into Franco’s Spain. But all such trips were hazardous, hugely problematic and invariably required arduous trips through remote areas - often on foot or by night - into neighbouring or adjoining countries.
64. This is where, one feels, the appellant’s case breaks down since it obliges us to accept that his mother and an undocumented new-born could leave Dublin in late September 1940 and arrive in Moscow some two weeks later. It is also important to stress that the entire case proceeds on the basis that it was the mother who returned to Moscow by mid-October 1940. This, in any event, is what is stated by Ms. Zhirnova in her formal statement and, just as importantly, the appellant expressly states that it was his mother who “registered my birth in accordance with the requirements of the USSR on 14 October 1940.”
65. In these circumstances, called upon as I am to review the documentary evidence and thereby effectively to step into the shoes of An tArd Chláraitheoir and consider whether the evidence to support the late registration is “adequate” for the purposes of s. 19(5), then, given the statutory context and the general purposes of the 2004 Act, I cannot agree that Mr. Chesnokov has established on the balance of probabilities that he was born in Dublin on 28th September 1940. Inasmuch as Hedigan J, concluded otherwise, I fear that this is not borne out by a review of the documentary evidence for the reasons given elsewhere in this judgment and that his conclusions amounted, with respect, to an error of law.
66. I accordingly consider that this appeal from the High Court must be allowed. I would therefore uphold the decision of An tArd Chláraitheoir, albeit for somewhat different reasons than those given by his office. There was and is evidence that the appellant was born in Ireland, since this is what the Soviet birth certificate (whose authenticity has never been challenged) actually states.
67. As I have already indicated, this might well have been enough in other circumstances to have enabled the conclusion that the applicant for registration was born in this State to be drawn. The difficulty relates to the other un-contestable, historical evidence arising from the particular year in question. The sheer physical difficulty of movement during World War II means that it almost impossible to see how the mother could have travelled with an admittedly undocumented new-born child from Dublin to Moscow within the space of some 16 days, particularly given the absence of any shipping services for passengers from Britain for onward travel, even assuming in the first place that the mother as a Soviet citizen could herself have travelled to the United Kingdom from Ireland for this purpose.
68. One might add that it is striking that no explanation at all is available as to how this trip might have taken place. I naturally accept the point made by Hedigan J. that even in the post-Stalin era Soviet citizens might have been reluctant to talk about matters such as this. It is nonetheless curious that, for example, Ms. Zhirnova, gave no such details when she made her statement in support of this application in 2010 when the communist-era repression was by that stage long over. Nor does she even explain how she - i.e., Ms. Zhirnova - came to return to the then USSR, even though this must have been a matter entirely within her own knowledge.
69. The same could be said of the formal declaration made by Mr. Gribkov who referred to the conversations he recalled from his childhood in the 1950s and the discussions between his mother who was friendly with Mr. Chesnokov’s mother, about the circumstances of Mr. Chesnokov’s birth. As I have noted, Mr. Gribkov said that his mother had stated that “because of the war between England and Germany”, Ms. Chesnokova “being pregnant turned up in Dublin and as a result she gave birth to her son Sergey in Dublin” and that,“later on, experiencing great difficulties, they travelled to Moscow.” But what is not explained is how Ms. Chesnokova could simply have “turned up” in Dublin in September 1940 or what precisely what the nature of the “great difficulties” they encountered as they returned to Moscow actually were.
70. One can equally make the same point regarding Mr. Dumess’ statement. He attributes the comments made by Ms. Chesnokova to a discussion in 1990 at a time when there ought to have been no concerns about revealing the fact the background to the trip to Dublin in 1940. Other than saying that Ms. Chesnokova told him of the trip to Dublin in 1940 and that the appellant was born there, Mr. Dumess really adds nothing more to the existing story.
71. The final statement comes from the appellant’s son, Alexey Sergeevich Chesnokov, who made a formal statement on 29th April 2010:
“My grandmother told me that she was afraid of coming back to the Soviet Union because of the started active warfare between Great Britain and Germany, but at the same time she was afraid of staying in Ireland because there was a communist regime in the Soviet Union at that time and her husband - my grandfather, Anatoly Ivanovich Chesnokov and herself could be pronounced ‘the enemies of the Soviet People” by the repressive authorities of state security, and later to be put in prison and probably shot dead. That is why [my] father’s birth was not registered in Ireland and my grandmother returned to the Soviet Union at the first opportunity and registered the birth of the baby according to the laws and regulations of the USSR.
In my childhood I remember that she used to keep some papers related to Ireland, but I do not know what the papers were and what happened to them later. At present we only have some Irish coins of that time, a child medallion with a three-pence coin, pins and an English spoon.”
72. Again, this statement does not explain how Ms. Chesnokova managed to travel to Ireland and how she returned to the Soviet Union within such a short period of time.
73. All of this is simply to say that while there is evidence from the Soviet birth register to the effect that Mr. Chesnokov was indeed born in Dublin, I am nevertheless not satisfied, on the balance of probabilities, that this fact has indeed been established by him. The known particular historical circumstances of that particular period which I have already mentioned - and of which this Court can take judicial notice - weigh heavily against this as a possibility. To this may be added the fact that really no possible explanation has been offered at all in any of the formal statements adduced by the appellant as to how Ms. Chesnokova could have travelled with an undocumented new born within a sixteen day period from Dublin to Moscow between 28 September 1940 and 14 October 1940. Putting this another way, I am not satisfied on the balance of probabilities that, for the purposes of the s. 19(5) application for late registration to An tArd Chláraitheoir, Mr. Chesnokov has adduced adequate evidence to support his claim that he was indeed born in Dublin on 28th September 1940.
74. For my part, in arriving at that conclusion I place particular emphasis on the known historical facts and the inability of civilians to undertake journeys of that kind during that particular war at that particular time, together with the absence of any real detail regarding the circumstances of the trip to and from Dublin to Moscow in September and October 1940. If, for example, the claim was that the appellant had been born in Dublin, on, say, 28th September 1970 and there was a similar Soviet birth registration on 14th October 1970, the evaluation of the available evidence and whether this was “adequate” for the purposes of s. 19(5) of the 2004 Act might well have brought about a different result.
Conclusions
75. In summary, therefore, I believe that the documentary record in this matter was such that An tArd-Chláraitheoir was entitled to reach the conclusion that the appellant has not established on the balance of probabilities that he was born in Dublin on 28 September 1940 by the production of adequate evidence for the purpose of s. 19(5) of the 2004 Act, albeit that my reasons for that conclusion differ somewhat from those advanced by An tArd Chláraitheoir.
76. While I agree (subject to minor reservations specified elsewhere in the judgment) with the legal analysis of s. 60(8) of the 2004 Act contained in the judgment of the High Court, I fear that I must disagree with respect with the conclusions which Hedigan J. drew from the documentary record for the reasons set out at length in this judgment. It is, however, for that reason - and that reason alone - that I consider that the appeal should be allowed.