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You are here: BAILII >> Databases >> Irish Court of Appeal >> Habte v Minister for Justice and Equality & Ors [2020] IECA 22 (05 February 2020)
URL: http://www.bailii.org/ie/cases/IECA/2020/2020IECA22.html
Cite as: [2021] 3 IR 627, [2020] IECA 22
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McGovern J.
Power J.
BETWEEN
THE COURT OF APPEAL
Neutral Citation Number: [2020] IECA 22
[2019/108]
MAHELET GETYE HABTE
APPLICANT/RESPONDENT
AND
MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT/APPELLANT
[2019/113]
BETWEEN
MAHELET GETYE HABTE
APPLICANT/APPELLANT
AND
MINISTER FOR JUSTICE AND EQUALITY
IRELAND
ATTORNEY GENERAL
RESPONDENTS
JUDGMENT of Ms Justice Power delivered on the 5th day of February 2020
Introduction
1. I adopt the account of the facts and the careful reasoning on the applicable law as set out
in the judgment of Murray J. and I agree with the conclusions reached therein. I also
agree with the order he makes and with his reasons for so doing.
2. This judgment deals only with one aspect of the appeal brought by the Minister for Justice
and Equality (‘the Minister’) in the first set of proceedings in respect of the High Court
judgment of 11 February 2019. It is identified as the first of three legal issues to be
determined and it is set out at para 31 (a) of the Minister’s submissions in his appeal in
case number CA 2019/108. It concerns the necessity and/or correctness of the trial
judge’s declaration that there exists an unenumerated Constitutional right to have one’s
identity recognised by the State, together with an implied right for there to be a correct
record of a person’s age. The trial judge, in fact, referred to ‘central aspects of personal
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identity’, including, a person’s age (paras. 43 to 50 of the judgment). Whilst the applicant
(‘Ms Habte’) before the High Court is the respondent in this appeal, I shall, for ease of
reference and to maintain consistency with the judgment of Murray J., hereinafter refer to
the respondent as the applicant.
High Court Judgment
3. The High Court (Humphreys J.) recalled that the right to registration of birth, and
implicitly to an accurate registration thereof, is recognised by Article 24(2) of the
International Covenant on Civil and Political Rights and Article 7 of the Convention on the
Rights of the Child. It found that the fulfilment of that right is closely related to the
enjoyment of several socio-economic and other rights. It also found that the right to
registration of birth, including the right to have the details of one’s personal identity
correctly recorded, arises under Article 8 of the European Convention of Human Rights.
The trial judge found that these rights were in issue, at least to some extent, in this case.
That the applicant must have a right to have her identity correctly recognised by the
State is so fundamental that ‘it must be recognised as an unenumerated constitutional
right’ (at para. 43 of the judgment.)
4. In the trial judge’s view, the right to registration of one’s birth and to an accurate
registration thereof also arises, to some extent, as a corollary of data protection
principles, including, those set out in the Charter of Fundamental Rights of the EU. Article
8 of the Charter provides that everyone ‘has the right of access to data which has been
collected concerning him or her and the right to have it rectified’. Similar rights are
included in s. 74 (3) of the Data Protection Act, 2018 and in s. 9 of the Freedom of
Information Act, 2014. The High Court considered that the fact that rights are provided
for by statute or European Law does not logically mean that corresponding rights cannot
also arise, at least in certain circumstances, under the Constitution. Humphreys J.
concluded that there is ‘an implied constitutional onus on the State arising from the
inherent dignity of the individual referred to in the Preamble and the personal rights of
the citizen in Article 40.3 of the Constitution to ‘accurately record and represent central
aspects of personal identity’ (at para. 44 of the judgment).
5. In coming to this view, the High Court observed that the exercise of a number of explicit
constitutional rights depend upon an individual’s age. To exercise the right to vote, for
example, one must be 18 or the right to stand in a general election, 21 or in a
presidential election, 35. On this basis, Humphreys, J was satisfied that there must,
therefore, exist an implied right to a correct record of one’s age if such constitutional
rights are to be exercised. Whilst acknowledging that identity is not an easily defined
concept, he noted that all the applicant was seeking was that her correct date of birth
(and, therefore, the age on which much treatment of her by organs of the State could
potentially depend) be accurately recorded. Although the primary onus to have recorded
the applicant’s date of birth correctly fell upon the Ethiopian authorities, that fact, in
itself, did not absolve this State from its duty to record her date of birth correctly within
its own records. Consequently, the High Court agreed with the applicant that the right to
have an accurate official record of one’s identity is an aspect of the personal rights of
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citizens under Article 40.3 of the Constitution and Article 8 of the European Convention on
Human Rights (‘ECHR’), as applied by the Human Rights Act, 2003 (para. 47 of the
judgment).
6. In support of the High Court’s finding in this regard, Humphreys J. acknowledged that he
had derived considerable assistance from the approach taken by Kearns P. in Caladaras v.
An tArd Chláraitheoir [2013] 3 IR 310 at pp. 319 to 320. In that case, the applicant had
provided what she believed to be her real or official name when registering her daughter’s
birth. However, it subsequently transpired that the name she provided was incorrect and
was, rather, the name of another woman whose birth certificate she had mistakenly
believed to have been her own. On an application to the Office of the Registrar for Births,
Deaths and Marriages to have her daughter’s birth certificate corrected, the Registrar
General refused to amend the certificate indicating that the register was a ‘historical
record of correct facts at the time the record was created’. In support of his position, he
had referred to the judgment of the High Court in Foy v. An tArd Chláraitheoir,
(Unreported, 9 July 2002) in which McKechnie J. had described a birth certificate as a
‘snap shot’ of matters on a particular day rather than a ‘continuum record of one’s travels
through life’. Since the certificate was, in the Registrar’s view, a correct representation of
the applicant’s details at the relevant time, no amendment could be permitted.
7. In Caladaras, Kearns P. was satisfied that the circumstances in Foy were ‘altogether
different’. The applicant in Caladaras was not seeking a retrospective amendment of a
birth certificate such as would reflect a change of sex following gender reassignment
surgery. An amendment of that nature did not involve an error of fact and was not
permitted by the Civil Registration Act 2004. Rather, the applicant in Caldaras was
seeking only an amendment to reflect the factually correct details at the time of her
daughter’s birth. Kearns P. held that the applicant was entitled to have the Register
amended, accordingly.
The Appeal
8. The Minister has argued that the learned High Court judge was incorrect in law in finding
it necessary to declare that there exists an unenumerated constitutional right to have
one’s identity correctly recognised by the State, together with an implied right for there to
be a correct record of a person’s age. He claimed that this is so particularly in
circumstances where the applicant was not born in the State and where the Minister has
no obligation to register her birth. Grounds 1 to 7 of the appellant’s Notice of Appeal
relate to this alleged error in law.
accepted the ‘general proposition’ that there is an unenumerated constitutional right to
have one’s identity accurately recorded. Such rights are necessary to ensure the dignity
and freedom of the individual and they inhere in the individual personality which
constitutes a vital human component of the social, political and moral order posited by
the Constitution. The Minister accepted that this would entail a right to have such State
documents as are required to live one’s life with dignity, including, a birth certificate and
a passport. However, he claimed that, in this case, the applicant had not relied on the
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provisions of the Constitution in her Statement of Grounds in the High Court nor had she
filed any submissions in relation to the notion of an unenumerated constitutional right to
recognition of one’s correct identity. Even though this substantial question had not been
encompassed by the pleadings in the case, the trial judge, nevertheless, in the Minister’s
view, went on to find that the applicant ‘must have a right to have her identity correctly
recognised by the State’.
10. The Minister advanced a number of arguments in support of his appeal. Firstly, he placed
reliance upon the fact that the applicant was not born in the State and that, consequently,
the Minister never had any obligation to register the details of her birth. He also argued
that the difficulties surrounding the applicant’s date of birth placed him in an exceptionally
difficult position, in terms of ascertaining, with certainty, the date upon which she was, in
fact, born. Furthermore, the Minister claimed that the approach of Humphreys J. had
involved a breach of the separation of powers because it had, in effect, provided for a
new ministerial function and power over and above the supervision of the reliability of a
certificate of naturalisation. Even if a legislative scheme were necessary for the
vindication of one’s personal identity rights, the role of the court, the Minister argued,
does not extend to creating such a scheme. He relied upon A.P. v. Minister for Justice
[2019] IESC 47, by analogy, in support of his claim in this regard.
11. From the perspective of European law, the Minister relied on Butt v. Norway App. No.
47017/09 (ECHR, 4 December 2012) in support of his contention that applicants have a
duty to provide correct details of personal identity. Whilst acknowledging that Butt related
to immigration, generally, he argued that the duty would apply a fortiori in the context of
the naturalisation process. Such a process can be a means whereby non-nationals acquire
not only Irish citizenship, but proof of identity, internationally. Given the difficulties
pertaining to ascertaining the correct date of the applicant’s birth, the Minister claimed
that any unenumerated right to have one’s date of birth recognised, formally, by the
State could not be relevant to or engaged by these proceedings. Even if he were incorrect
in this regard, he submitted that the alteration of the record of one’s date of birth
involves the alteration of a key personal identifier and that there must exist a
countervailing public interest in ensuring that a person cannot simply change his or her
identity.
12. The Minister claimed that the European Convention on Human Rights did not advance the
applicant’s case, significantly. Article 8 requires only that a deprivation of citizenship
should not be ‘arbitrary’ and that adequate procedural safeguards against arbitrariness
exist (Ramadan v. Malta, App. No. 763613/12 (ECHR, 21 June 2016.) He submitted that
the s. 19 process as provided for in the Irish Nationality and Citizenship Act 1956 (‘the
1956 Act’) demonstrates that the Minister’s actions have a legal basis and that decisions
taken in respect of citizenship are not ad hoc administrative acts. He claimed that there
were ‘ample procedural safeguards’ within the s.19 process, including, a right to request
an Inquiry by a Committee and a right to judicially review his decision.
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13. The case of Rottman v. Freistaat Bayern (Case C-135/08) was relied upon by the Minister
to demonstrate that the notion of an ‘arbitrary’ deprivation of citizenship under
international law does not extend to a deprivation for misrepresentation. In such a case,
it was argued, deprivation of citizenship could be justified even if it were to render a
person stateless. The Minister argued that Article 7 of the Charter is largely coextensive
with Article 8 of the Convention, and, in the absence of any evidence as to the effect on
the applicant’s private or family life, those Articles were not engaged in the decision to
notify her of the intention to revoke her citizenship. This was all the more so in
circumstances where the Minister had not, as yet, even decided to revoke the applicant’s
citizenship and may never do so as more information may come to light in the revocation
process. Finally, the Minister claimed that Article 8 of the Charter does not arise in the
circumstances of this case as there is no assertion let alone evidence, that the personal
data of the applicant would not be protected by the Minister during the revocation
process.
14. Against those arguments, the applicant submitted, firstly, that in the High Court
proceedings she had, indeed, relied on the right to have her correct identity officially
recorded and she referred the court, specifically, to her submissions in this regard. In
Caldaras, the High Court had recognised that the right to have a correct official record of
one’s identity was an aspect of the unenumerated personal rights both within the
Constitution and under Article 8 of the European Convention on Human Rights. Insofar as
the Minister had sought to argue that he had no obligation to register details of her birth
because she was not born in Ireland, this, she claimed, ignored the fact that the
successful applicant in Caldaras had been born in Romania. The Minister’s argument also
failed to acknowledge the nature of the applicant’s rights as an Irish citizen. The right to
have her identity correctly recorded was one which accrued to her regardless of where
she was born because by the time her application to amend the certificate had been
made, she was, in fact, a citizen of Ireland. There was no justification for the Minister’s
attempt to limit the application of this unenumerated constitutional right solely to persons
who were born in Ireland.
15. The applicant disputed the assertion that the trial judge had extended the Minister’s
powers and duties. She claimed that the judge’s finding was simply a corollary of the data
protection principles, including, those contained in Article 8 of the Charter of Fundamental
Rights of the EU, the Data Protection Act 2018 and the Freedom of Information Act 2014
under which all citizens have the right to rectification of their personal data. Further, the
trial judge had not breached the separation of powers principles but had correctly sought
to vindicate her constitutional rights and his approach was entirely consistent with
5.13). She submitted that, in this case, there had been no gap in the law per se. What
she was facing was an overly literal interpretation of s.19 of the 1956 Act matched with
an asserted policy that once a certificate of naturalisation issues, the Minister would not
correct it unless the error in question was a clerical one committed within the
Department. The applicant contended that the trial judge had been entirely correct in
finding that the Minister’s stated view that he could refuse to consider an amendment on
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the basis of such a policy without any regard to her rights was contrary to the
requirement that he act lawfully and in accordance with the Constitution.
The Legal Issue
16. It would appear that the specific right to recognition of one’s date of birth and to a correct
recording thereof has not, per se, been litigated before the Irish or the European courts.
To that extent, this appeal raises a somewhat novel point. That said, however, the legal
principles to be derived from case law in which the courts have considered the existence
or scope of the right to have other aspects of personal identity reflected in official records,
provide helpful guidance in approaching this appeal.
17. In this case, Humphreys J. found that the right to have one’s identity correctly recognised
by the State is ‘so fundamental that it must be recognised as an unenumerated
constitutional right’. Whilst the elevation of this right to constitutional status is a novel
feature of this case, the interaction between constitutional rights and the registration of
identity details, generally, has been examined before by the Irish courts in a number of
Caldaras v. An tArd Chláraitheoir [2013] IEHC 275, [2013] 3 IR 310, and, most recently,
18. Certain observations in the judgments of the Supreme Court in O.R. v. an tArd
Chláraitheoir provide a good starting point for considering the Minister’s specific complaint
under consideration in this judgment (see para. 2 above). In O.R., a married couple who
had availed of a surrogacy arrangement challenged the refusal by an tArd Chláraitheoir to
register the genetic mother—as distinct from the gestational mother—of twins as the
‘mother’ on the children’s birth certificates. The Supreme Court overturned an order of
the High Court which had declared that the genetic mother was entitled to be registered
as the ‘mother’. It held that the term ‘mother’ under the Civil Registration Act 2004 did
not extend to genetic mothers in surrogacy arrangements and that thus there existed a
lacuna in the law which was more appropriately filled by the legislature rather than by the
courts, due to the complex and sensitive nature of surrogacy arrangements.
Notwithstanding the reversal of the High Court order, McKechnie J. was satisfied that the
relationship of the genetic mother and the children and their relationship with the genetic
mother in the context of the reproductive process involved in their conception, was justly
deserving of recognition at constitutional level (at para. 393). The High Court had found
that chromosomal DNA material has a deterministic influence on the uniqueness of the
embryo, which carries into the inheritable characteristics upon which our individual sense
of self and identity is based. Such an input into creation, in the view of McKechnie J., was
so integral that it must command constitutional protection. He was satisfied that rights ‘at
the highest level of our legal order’ were involved in the circumstances as outlined. This
required that the natural and human association between mother and child and child and
mother must be recognised in law, in a way that reflects the fundamental reality of the
situation.
19. Clarke J. (as he then was) filed a dissenting judgment holding that the ‘least bad’ solution
to the case was for an tArd Chláraitheoir to put in place such administrative measures as
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would be necessary to record both the genetic mother and the gestational mother. He
found that the applicants had a constitutional entitlement to have the State recognise
their familial status, although the State may be entitled to properly regulate the
recognition of such status. His comments on the register of births, however, are worth
recalling in the context of the instant appeal. He said:
‘While not decisive, it is also worth noting that persons, understandably, place a
high value on the way in which their status is officially recognised. We do not
maintain, in this jurisdiction, any general register of persons which records matters
such as their age, gender and indeed, parentage. The closest we have is the
register of births, marriages and deaths. In those circumstances it is hardly
surprising that persons are concerned that the way in which their birth is registered
accurately reflects the legal situation, for it is, in normal circumstances, the only
official record of their status.’ (at para. 506)
20. The European Court of Human Rights has also considered the legal protection to be
afforded to features of personal identity, such as, name, gender and ethnicity, in a
number of cases. Its jurisprudence confirms that the question of the official record of
one’s personal data is a matter that falls within the scope of Article 8 of the ECHR (see
Goodwin v. UK App. No. 28957/95 (ECHR, 11 July 2002.) The key finding in Goodwin—a
case concerning gender identity—was applied, subsequently, in Grant v. UK App. No.
32570/03 (ECHR, 23 August 2006) which held that a refusal to recognise the gender
status of the applicant and to accord her the appropriate pension rights amounted to a
violation of her Article 8 rights from the date of the Goodwin judgment onwards.
21. In Ciubotaru v. Moldova, App. No. 271138/04 (ECHR, 27 April 2010) it was ethnicity as a
feature of personal identity that arose for the court’s consideration. The applicant sought
to change the registration of his ethnic origin in official records. The State’s failure to
examine his claim to belong to a certain ethnic group in the light of objectively verifiable
evidence amounted, in the court’s view, to a violation of his right to respect for his private
Court confirmed that Article 8 of the Convention is applicable to personal data pertaining
to private life even where such data is in the public domain. It found that ‘public
information’ can fall within the scope of ‘private life’ where it is systematically collected
and stored in files held by the authorities. It held that the retention and transmission of
an inaccurate police report constituted an interference with the applicant’s right to respect
for his private life within the meaning of that provision.
Discussion
22. As noted, Humphreys J. acknowledged that he had derived ‘considerable assistance’ from
the case of Caladaras in coming to his conclusions in this case. In Caladaras, Kearns P.
had distinguished the circumstances of correcting an error of fact on a birth certificate
from a retrospective amendment of a certificate to reflect a change of sex following
gender reassignment surgery. This Court considers that such a distinction can be
sustained. In Caladaras, the High Court was satisfied that constitutional and Convention
rights were engaged in the process of an application to amend a birth certificate so as to
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reflect correct personal identity details, confirming that both a parent and a child have the
right to have the correct identity of the parent recorded on a child’s birth certificate.
Kearns, P. stated:
“In terms of the Irish Constitution, the ‘double construction rule’ requires that
statutory provisions be given an interpretation which allows for the personal rights
of individuals to be respected. Furthermore, s. 2 of the European Convention on
Human Rights Act, 2003 provides that in interpreting and applying any statutory
provision or rule of law a court shall, insofar as is possible, subject to the rules of
law relating to such interpretation and application, do so in a manner compatible
with the State’s obligations under the Convention provisions.”
Kearns P. held that allowing such an amendment does not involve an interpretation of the
provisions of the Civil Registration Act 2004 in a manner that is fundamentally at variance
with a key or core feature of the statutory provision or rule of law in question. He found
that there was no requirement or test under the 2004 Act, such as would require that
only mistakes made by the Registrar General or his or her staff could be corrected. I
agree with Humphreys J.’s endorsement of the approach taken by Kearns P. and consider
that Caldaras provides a useful lens through which (to borrow a phrase from McKechnie J.
in O.R.) ‘the fundamental reality of the situation’ in issue in this appeal may be viewed.
23. The fundamental reality of the situation here is that the applicant claims that her date of
birth, as it appears on the certificate of naturalisation, is incorrect when calculated
according to the Gregorian calendar. Whilst the legal issue on personal identity rights in
this case is less complex and diverse than those arising in the area of assisted
reproduction, the reality, nevertheless, remains that the applicant’s date of birth is an
integral aspect of her personal identity. Although the Supreme Court in O.R. refrained
from making an order as to the registration entitlements of the applicants due to the
difficulties in making a democratically sound determination on the definition of ‘mother’ in
surrogacy arrangements, the judgments of the Court, nevertheless, affirm the importance
of maintaining an accurate register of births and recognise this as a prerequisite for the
vindication of numerous constitutional rights. The Supreme Court’s observations in this
regard apply, by analogy, to other official records of an individual’s personal data.
24. It is difficult to conclude that the Minister’s arguments for setting aside the trial judge’s
findings concerning the personal identity rights of the applicant are persuasive. The
Minister claims that he had no obligation to register the details of her birth because of the
fact that she was not born in the State. Whilst the Supreme Court has not, as yet,
determined the extent to which constitutional rights vest in persons who are non-citizens,
one can assert, at least as a general principle, that the most basic of fundamental human
rights are not dependent upon the place of one’s birth. They are not the gift of any State.
They inhere in the individual on the basis of his or her humanity. Whereas the chance
location of one’s place of birth may influence the extent to which fundamental human
rights are respected, it cannot and does not determine their existence. The applicant, in
this case, however, is an Irish citizen and the fundamental rights in issue in this appeal
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are related to matters concerning her personal identity. Any citizen whose personal
identity details are registered by the State has a right to have such registration recorded,
accurately, and in a manner that is factually correct. The State held personal identification
details on the applicant and she is entitled to a correct recording of those details. At the
time of the applicant’s request to amend her certificate of naturalisation, the legal reality
that obtained cannot be overlooked. The applicant, as the holder of such a certificate
(albeit one which recorded, in her view, a factual error in her birth date when calculated
according to the Gregorian calendar) was and remains an Irish citizen. Accordingly, she is
entitled to the protection of the Constitution on the same basis as every other Irish
citizen.
25. Furthermore, the contention that the approach of the learned High Court judge involved a
breach of the separation of powers principle—by providing for a new ministerial function
and power over and above the supervision of the reliability of certificate of
naturalisation—is not convincing. No new administrative power or function has been
created in this case. The trial judge made an order that ‘the Minister do consider if
appropriate in the light of any report of the committee of inquiry whether the applicant’s
certificate of naturalisation should be amended in the sense of being cancelled and
reissued with the correct date of birth’. I do not consider that in making this order he was
engaged in devising a legislative scheme and imposing it on the Minister. It would,
indeed, have been a breach of the separation of powers principle for a court to have done
5.21]. It is clear from the judgment of the High Court that Humphreys J. took the view
that it was for the Minister to make the final decision on the outcome of the s. 19 process
in this case. I consider that it was entirely within the remit of the trial judge to find that
the right to have one’s identity correctly recognised by the State is ‘so fundamental that it
must be recognised as an unenumerated constitutional right’. In finding that the applicant
was entitled to have her date of birth correctly recorded in official documents, the High
Court’s declaration constituted no more than a vindication of her constitutionally
protected rights, including, those rights, the exercise of which necessarily depends upon
the correct recording of a citizen’s age.
26. Having considered the case law relied upon by the Minister in support of his appeal, I am
not persuaded that it supports his position, greatly. If anything, the Supreme Court’s
Nor does the Strasbourg Court’s judgment in Butt v. Norway advance the Minister’s case,
in any way. In Butt, the applicants had resided in Norway from an early age except for a
short period in their lives when they and their mother had returned to Pakistan. They
were granted a settlement permit at a time when the Norwegian authorities were ignorant
of the three-year period spent in Pakistan and it was based on false information provided
by their mother that she and the applicants had continued to reside in Norway.
Notwithstanding the provision of such false information, the Strasbourg Court
nevertheless found that the respondent State had exceeded its margin of appreciation
when seeking to strike a fair balance between its public interest in ensuring effective
immigration control and the applicants’ interests in remaining in Norway to pursue their
Page 10 ⇓
private and family life. It concluded that the applicants’ deportation from Norway would
entail a violation of Article 8 of the Convention.
27. Whilst it is not for this court to determine that the applicant’s error was innocent (see
para. 85 of the judgment of Murray J.) I do not consider that it has been established, at
this stage of the proceedings, that there has been a deliberate concealment of a material
fact or a breach of the duty of full disclosure such as occurred in Butt. It must be recalled
that the applicant had enclosed with her application for naturalisation, a letter of 31 May
2014 setting out the differences between the Ethiopian and Gregorian calendars and that
she had furnished a telephone number at which she could be contacted in the event of
any questions. It must also be recalled that it was she who drew the Minister’s attention
to what, she claims, is an inaccuracy in the certificate of naturalisation.
28. Insofar as reliance was placed by the Minister on Rottman v. Freistaat Bayern (Case C-
135/08), I accept that this case may be authority for the proposition that an ‘arbitrary’
deprivation of citizenship under international law does not extend to deprivation for
misrepresentation. In that case, the CJEU held that it is not contrary to European Union
law, in particular to Article 17 EC, for a Member State to withdraw from a citizen of the
Union the nationality of that State acquired by naturalisation when that nationality was
obtained by deception, on condition that the decision to withdraw observes the principle
of proportionality (emphasis added). Again, it has not been established, at this stage of
the proceedings, that the applicant’s naturalisation has been based on deception or
material misrepresentation. That is a matter for the Minister to decide. However, as
Murray J. notes (at para. 49 of his judgment) it cannot be said that the issue of a
certificate on foot of information provided by an applicant which is incorrect has for that
reason alone been ‘procured ... by misrepresentation’ in the sense in which the phrase is
used in section 19(1) of the Act of 1956.
Decision
29. I am satisfied that the recognition by the State of a person’s date of birth is engaged both
as an unenumerated constitutional right and under the ‘private life’ limb of Article 8 of the
ECHR. Whilst it would appear that there is no specific case on point in either in Irish or
European law, the trial judge’s declaration is not inconsistent with principles arising in
cases which deal with other aspects of personal identity. Such principles, to my mind,
may be applied, by analogy, with equal force to the facts of this case.
Strasbourg court held that a name constitutes a means of personal identification and a
link to a family, so it can be accepted that a person’s date of birth also constitutes an
important means of personal identification. One need only observe, how in the medical
sphere and health care systems, for example, a person’s date of birth is routinely used as
an important cross-check to confirm his or her identity.
31. I am led to conclude that a person’s date of birth is a significant aspect of his or her
personal identity and constitutes an important link to his or her family. The right to have
one’s date of birth recognised by the State and recorded accurately must fall within that
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category of rights which are at what McKechnie J describes as ‘the highest level of our
legal order’ (O.R. at para. 393). Consequently, I am satisfied that the trial judge did not
err in law in finding that personal identity rights are engaged in the process in issue in
this case. He was entitled to come to the view that the applicant’s right to have her
identity correctly recognised by the State is so fundamental that it must be recognised as
an unenumerated constitutional right. He was further entitled to conclude that there
exists an implied constitutional onus on the State, arising from the inherent dignity of the
individual referred to in the Preamble and the personal rights of the citizen in Article 40.3
of the Constitution, to ‘accurately record and represent central aspects of personal
identity’.
32. In these circumstances and for the reasons set out above, I dismiss the Minister’s appeal
on this point.
Result: Dismiss appeals.