Ni Chuinneaghain's (Caoimhe) Application
| Jurisdiction | Northern Ireland |
| Judge | McCloskey LJ |
| Neutral Citation | [2022] NICA 56 |
| Date | 07 October 2022 |
| Court | Court of Appeal (Northern Ireland) |
1
Neutral Citation No: [2022] NICA 56
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: McC11949
ICOS No: 20/050867/01/A01
Delivered: 07/10/2022
IN HIS MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
___________
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
IN THE MATTER OF AN APPLICATION BY CAOIMHE NI CHUINNEAGAIN
FOR JUDICIAL REVIEW
___________
Before: McCloskey LJ, Horner LJ and Colton J
___________
Representation
Appellant: Mr Ronan Lavery KC and Mr Mark Bassett of counsel, instructed by
Brentnall Legal
Respondent: Mr David Blundell KC and Mr Yaaser Vanderman, of counsel, instructed
by the Crown Solicitor
___________
McCloskey LJ (delivering the judgment of the court)
Index
Subject Paragraph No
Introduction 1
Procedural Considerations 2
Factual Matrix 3-4
Statutory Framework 5-7
The Appellant’s Case 8-20
The Respondent's Riposte 21-30
The Issues 31
Procedural Issues 32-33
The Judicial Review Leave Test 34-44
The Article 8 ECHR Challenge 45-57
Article 8 ECHR and the Belfast and British-Irish Agreements 58-68
Article 8(2) ECHR: [1] Protection and [2] Interference 69-93
Article 8(2) ECHR: Proportionality 94-105
Our Conclusions 106-109
2
Introduction
[1] The effect of the British Nationality Act 1981 is that every person born in the
territory of the United Kingdom following the commencement of that statute
(1 January 1983) becomes a British citizen provided that upon birth their father or
mother is a British citizen or is settled in the United Kingdom or in a qualifying
territory. Caoimhe Ni Chuinneagain (“the appellant”), now aged 19, is a British
citizen by virtue of this statute, having been born in the United Kingdom,
specifically Northern Ireland. She objects to this on cultural and related grounds.
While she is also an Irish citizen and while she has available to her a legal
mechanism for renouncing her British citizenship (infra) her quest is to secure a legal
status which would recognise her as an Irish citizen only. She seeks to achieve this
status via these proceedings. The public authority against whom she has chosen to
proceed is the Secretary of State for the Home Department (the “Home Secretary”),
being the Minister of the Crown with responsibility for citizenship and immigration
matters. Her application for leave to apply for judicial review was dismissed at first
instance. By her appeal to this court the appellant challenges this decision.
Procedural Considerations
[2] This being a challenge to a first instance decision refusing leave to apply for
judicial review there are certain material considerations of a procedural nature. We
address these in para [32]ff infra.
Factual Matrix
[3] The factual matrix is both uncomplicated and uncontentious. The court
gratefully adopts paras [4]–[7] of the judgment of Scoffield J. We reproduce paras
[5]-[7]:
“The applicant was born in Belfast and lives here. She is
an Irish citizen and has an Irish passport, on which she
has previously travelled abroad on a number of occasions.
Her parents are also Irish citizens and she has a number
of relatives who live in the Republic of Ireland, as well as
in the border area. She lives in Belfast and attends an
Irish-medium school. She has described in her affidavit
evidence that she has a keen interest in Gaelic and Irish
culture, and believes that she is “fully immersed in all
aspects of Irish national culture.” Irish is her first
language and she is a player of traditional Irish music.
The applicant also avers that she has never presented
herself as a British citizen in any context or for any reason
and says that she would not do so. She objects to the
notion of ‘British citizen or subject’ being applied to her.
3
Although the applicant accepts that it is open to her
(particularly now that she has attained the age of 18) to
renounce her British citizenship, she has averred that she
does not wish to do so as she considers that doing so
would represent an acceptance that she was born a British
citizen, in addition to having to pay the administrative
cost involved.”
In addition to the foregoing, the appellant deposes that she has possessed an Irish
passport, for some unspecified period, which she has invariably utilised for the
purpose of external travel. She avers that she has “zero affinity with British
identity.”
[4] It is convenient to interpose here that the appellant’s Irish citizenship, in
common with her British citizenship, also derives from law, being a combination of
constitutional provisions and primary legislation – belonging to the jurisdiction of
the Republic of Ireland – and, further, is a product of where she was born, namely on
the island of Ireland.
Statutory Framework
[5] The relevant provisions of the British Nationality Act 1981 (the “1981 Act”)
are these:
Sections 1 and 2:
“1.— Acquisition by birth or adoption.
(1) A person born in the United Kingdom after
commencement, or in a qualifying territory on or after the
appointed day, shall be a British citizen if at the time of
the birth his father or mother is—
(a) a British citizen; or
(b) settled in the United Kingdom or that territory.
…
2.— Acquisition by descent.
(1) A person born outside the United Kingdom and
the qualifying territories after commencement shall be a
British citizen if at the time of the birth his father or
mother—
(a) is a British citizen otherwise than by descent;
…”
To continue reading
Request your trial
20 cases
-
Carlin's (Sean) Application and in the matter of a decision of The Office of Communications (Leave stage)
...challenge below, applying the test for the grant of leave recently confirmed by the Court of Appeal in Re Ni Chuinneagain’s Application [2022] NICA 56, at para [42]. The ultra vires challenge [44] I have little hesitation in concluding that the applicant’s first central ground of complaint ......
-
JR216, Raymond Fitzsimons and The Police Federation for Northern Ireland; Applicant A, Applicant B and Raymond Fitzsimons and The Police Federation for Northern Ireland and JR217’s Applications and in the matter of decisions of The Police Ombudsman for Northern Ireland (Leave stage)
...leave to apply for judicial review has recently been authoritatively clarified by the Court of Appeal in Re Ni Chuinneagain’s Application [2022] NICA 56. It is that test which I apply in these cases. Accordingly, references to ‘arguability’ below are to be construed as a reference to arguab......
-
Huang (Huaqin) Application for Judicial Review (Leave stage)
...[87] However, for the reasons set out above the court concludes that the threshold for leave set out in the case of Ni Chuinneagain [2022] NICA 56 of an arguable case having a real prospect of success has not been met. [88] Therefore, leave for judicial review is refused. ...
-
Graham (Kathleen) Application for Judicial Review (Leave Stage)
...investigative opportunities. The Test for Leave [7] As recently confirmed by the Court of Appeal in Re Ni Chuinneagain’s Application [2022] NICA 56 an applicant must satisfy the court at the leave stage that there is an arguable case with a realistic prospect of success and which is not sub......
Request a trial to view additional results