Court of Appeal: Lack of documentary evidence proved fatal to citizenship claim

About this case:

• Judgment:
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Reversing the decision of the High Court, Mr Justice Gerard Hogan found particular difficulty with the lack of documentary evidence produced by the man, and with the contention that the man’s mother would have been able to make such a journey with an undocumented new born in the midst of the Second World War.

Background

Mr Sergey Chesnokov endeavoured to claim Irish citizenship on the contention that he was born in a house in on 28th September 1940, and that his mother was attended by his aunt during the delivery.

The applicant freely acknowledged that his entire family was Russian and that they were all otherwise citizens of the then USSR.

If able to prove that he was indeed born in Ireland in 1940 then he would have been automatically entitled to Irish citizenship by reason of such birth, pursuant to s. 6(1) and s. 6(3) of the Irish Nationality and Citizenship Act 1956 – the jus soli rule which was amended by the 27th Amendment of the Constitution Act 2004 and the Irish Nationality and Citizenship Act 2004.

In September 2014, An tArd-Chláraitheoir – the Registrar General notified Mr Chesnokov that his application for the late registration of his birth as having taken place in Ireland in1940, under the provision of s. 19(5) of the Civil Registration Act 2004, had been rejected.

In the High Court, Mr Chesnokov successfully appealed that decision under s. 60(8) of the Civil Registration Act 2004

Court of Appeal

In the Court of Appeal, An tArd-Chláraitheoir sought to appeal the High Court order made by Justice Hedigan which had reversed their decision to reject Mr Chesnokov’s application.

Three issues arose on appeal:

Whether the appeal was out of time

An tArd-Chláraitheoir argued that Justice Hedigan was incorrect to find that the appeal was within time

According to Justice Hogan, even if the appeal was out of time “it would nonetheless be appropriate to extend time to permit Mr Chesnokov to appeal”.

Varying the order made by Justice Hedigan, Justice Hogan formally extended the time for the purposes of Order 84C, rule 2(5)(b) so as to enable the appeal.

The scope of the appeal

The next issue was the scope of the appeal created by s. 60(8) of the Civil Registration Act 2004: “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”.

Justice Hogan described s.60(8) as “quite laconic” in that “it simply provides that a person who is dissatisfied with any decision of an tArd-Chláraitheoir may appeal against it to the High Court” – thus providing no guidance as to the type of appeal envisaged by the Oireachtas.

After considering several decisions seeking to determine the proper scope of appeal, including Dunne v. Minister for Fisheries I.R. 230 and Fitzgibbon v. Law Society IESC 48, 2 I.L.R.M. 202; Justice Hogan stated that he was in agreement with the analysis of Justice Hedigan.

Finding that the appeal was one on the record, Justice Hogan stated that the issue then becomes whether An tArd Chláraitheoir was correct in the decision to which he arrived on the evidence before him.

Whether the decision of An tArd Chláraitheoir should have been reversed

The task confronting An tArd Chálaraitheoir 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.

Given the “remarkable lapse of time since the birth was registered abroad and the other unusual features of the case”, Justice Hogan was satisfied that a particular onus rested upon Mr Chesnokov in this case to satisfy An tArd Chláratheoir that there was adequate evidence of a birth in Dublin in 1940.

Justice Hogan found particular difficulty in accepting that, in the middle of the Second World War, Mr Chesnokov’s mother and an undocumented new-born would have been able to leave Dublin in late September 1940 and arrive in Moscow some two weeks later.

Disagreeing with Justice Hedigan on this point, Justice Hogan stated that he was not satisfied, on the balance of probabilities, that this fact has been established by Mr Chesnokov.

Conclusions

Justice Hogan held that the documentary record in this matter was such that An tArd-Chláraitheoir was entitled to reach the conclusion that Mr Chesnokov had not established on the balance of probabilities that he was born in Dublin by the production of adequate evidence for the purpose of s. 19(5) of the 2004 Civil Registration Act 2004

Thus, while agreeing with the legal analysis of s. 60(8) of the Civil Registration Act 2004 contained in the judgment of the High Court, “subject to minor reservations”, Justice Hogan stated that he disagreed with the conclusions which Justice Hedigan drew from the documentary record.