Whether, for the purposes of section 10 of the FOI Act, the Department has provided an adequate statement of reasons to the applicant for the decision to refuse him three-year permission to remain in the State on the basis of parentage of an Irish citizen child

13 August 2019

Background

All references to “the applicant” in this decision can be taken to refer to the applicant and/or his partner, as appropriate. On 1 November 2018, the applicant submitted a request to the Department for access to all records relating to applications he had made to the Irish Naturalisation and Immigration Service (INIS) in 2016 and 2018 and a statement of reasons for its decision to refuse him three-year permission to remain in the State on the basis of parentage of an Irish citizen child in respect of his 2018 application.

On 19 December 2018, the Department provided the applicant with a statement of reasons for the refusal. On 22 December 2018, the applicant sought an internal review of that decision on the basis that he was not satisfied with the adequacy of the statement provided and that he had not been given access to the records sought. The Department issued its internal review decision on 21 January 2019 wherein it affirmed its original decision in relation to the statement of reasons given and granted access to all records relating to his 2016 and 2018 applications. On 25 January 2019, the applicant sought a review by this Office in relation to the statement of reasons provided to him under section 10.

During the course of the review, and following correspondence with this Office on the matter, the Department issued a further statement of reasons to the applicant. Following receipt of that statement, the applicant made additional submissions to this Office. Having regard to those submissions I consider it appropriate to conclude this review by way of a formal, binding decision.

In conducting my review, I have had regard to the correspondence between the Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter.

Scope of Review

This review is concerned solely with whether the Department has provided an adequate statement of reasons to the applicant, under section 10 of the FOI Act, in relation to its decision to refuse him three-year permission to remain in the State on the basis of parentage of an Irish citizen child.

Preliminary Matters

During the course of the review the applicant raised issues that are not capable of consideration by this Office. This Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Neither does this Office's remit extend to examining the appropriateness or otherwise of the particular act(s) or decision(s) for which statements of reasons are sought.

It is also important to note that a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision. As such, I consider it appropriate to have regard to the supplementary statement issued by the Department during the course of the review to determine if the Department has, at this stage, provided an adequate statement of reasons to the applicant.

Analysis and Findings

Section 10 of the FOI Act provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act. The “act” for which a statement of reasons was sought in this case was the decision of the Department to refuse the applicant three-year permission to remain in the State on the basis of parentage of an Irish citizen child.

This Office takes the view that a statement of reasons should be intelligible and adequate having regard to the particular circumstances of the case. It should be sufficiently clear to enable an applicant to understand without undue difficulty why the FOI body acted as it did. However, it does not necessarily have to contain a detailed clarification of all issues identified by an applicant as relevant to a particular act or decision, nor is there a requirement that it be in a particular form.

In the statement provided to the applicant on 19 December 2018, the Department explained that, as outlined on the INIS website, permission to remain in the State can be granted for a period of six months and up to a maximum of three years, depending on a number of factors, including the applicant’s role in the Irish citizen child’s life and his/her immigration history in the State. It stated that the Minister made a decision to grant the applicant permission to remain in the State for one year based on the information and documentation on hand at the time of his application.

It went on to describe the applicant’s immigration history which it said it had regard to. It stated that when considering his application, it was noted that he entered the State in 2006 without the necessary visa and thereafter remained in the State illegally for over six years until early 2013 on receipt of temporary permission while awaiting a decision on his EU Treaty Rights application. It stated that in light of this, the Minister took the view that the granting of permission to remain in the State for a one-year period was the most appropriate course of action.

In his application for review, the applicant stated that the statement provided did not explain why he and his partner had been asked to submit additional documentation in order to consider a three-year application and yet based its decision on information that was already available to the INIS, and why it had not considered the substantial medical documentation submitted in connection with the application.

Following correspondence with this Office on the matter, the Department issued a supplementary statement of reasons to the applicant on 27 June 2019 which expanded on its original statement. The Department explained why it was not obliged, by law, to grant the applicant permission to remain in the State as the parent of an Irish child. It stated that the medical circumstances of a child would be taken into account when the Minister is determining whether or not the parent should be granted permission to remain in the State and that in this case, the child’s medical history played a vital role in the decision to grant the applicant permission to remain, rather than refuse his application.

It again stated that when making the decision to grant the applicant permission to remain in the State for one year, it took into consideration the applicant’s immigration history as described above.

In summary, therefore, it is the Department’s position that

• the Minister made a decision to grant the applicant permission to remain in the State for one year based on the information and documentation on hand at the time of his application,
• the child’s medical history was taken into account when deciding to grant the applicant permission to remain in the State, and
• the decision to grant a one-year period instead of a three-year period was based on his immigration history.

In essence, the applicant’s argument appears to be that the medical evidence submitted should have been considered by the Department in relation to the question of whether or not he should have been granted access to remain for a three-year period.

As I have outlined above, this Office has no role in examining the appropriateness, or otherwise, of the decisions taken in this case. Rather, our role is confined to determining whether the Department has adequately explained why it took those decisions. Therefore, notwithstanding the concerns expressed by the applicant in his recent submissions, I am satisfied that the statements provided by the Department to the applicant, when taken together, explain adequately, in a clear and intelligible manner why he was refused three-year permission to remain in the State. I find, therefore, that the Department has complied with the requirements of section 10 in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department on the ground that it has provided the applicant with an adequate statement, for the purposes of section 10, of the reasons as to why he was refused three-year permission to remain in the State on the basis of parentage of an Irish citizen child.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator