Can I argue in a court that initial conditions which were agreed, are broken? (by a Country)

Question

Have a look at this hypothetical case:

Assume that I apply for Irish Immigrant Investor Program. See page number 15, where in bold font, it is mentioned:

The Immigrant Investor Programme recognises that investors who benefit from the programme may have substantial business and financial interests outside of Ireland. Therefore, actual physical residence in Ireland is not a condition for renewal of your residency permission under the Immigrant Investor Programme. This condition applies to both investors and their nominated family members. The programme simply requires investors and their family members to visit Ireland at least once per calendar year.

Now assume that I apply for it and get a permission to live in Ireland based on my investment. The document mentions that the permission will be renewed every 5 years subject to the following conditions:

• You have not become a financial burden on the Irish State.
• You have not been investigated, indicted or convicted in relation to any criminal offence in any jurisdiction.
• Spend 1 day per year physically in Ireland

Now, these are the current guidelines. If I have held such a permission to enter/remain in Ireland for 10 years (2 renewals) without actually residing in the country except 1 day stays each year (due to my business commitments outside Ireland and the fact that my primary home isn't Ireland), but suddenly Irish policy changes, and they tell me to start residing in Ireland within x amount of years (say within 1 year or within 2 years or may be within 6 months?), or tell me that this was your last 5 year renewal after which you will have to physically stay in Ireland to maintain your permission to stay and further renewals, can I approach an Irish court to argue that I had the right to stay in Ireland without any conditions except the 3 conditions above, regardless of the policy changes of Ireland because I invested (and made decisions about it) based on the conditions provided at that time?

That is, are the conditions for renewal of the Immigrant Investor Programme (that are written in bold font) a good proof in a court to argue that no matter Ireland's policy changes, I entered the programme under those conditions and agreements and those conditions can't change for the people like me (who took the decision to choose Ireland because of the relaxed residency requirement)?

In simpler words, imagine that a mother promises her child that she will buy her ice creams on demand every year if he (her son) excels in his final exams this year. Assume that the lured son does excel. And now imagine that her mother buys him ice cream this year, but next year changes her mind and thinks that her child should excel again the next year for next years' ice creams (which were not part of the original deal). In law, are such changes allowed when someone was explicitly and in bold font, told that the only physical residence condition was once a year?

I want to know whether such changes/amendment of rules applied on people who were shown previous rules legit? If no, but if the Govt does apply it on me, can I approach a court to argue that I entered the Immigrant Investor Programme based on the conditions presented at that time and not based on the new rules?

PS: By conditions, I chiefly mean the 1 day per year residence requirement. This one is important to me as I have business and family outside Ireland, so if they say sometime in the future to choose between start residing in Ireland to preserve my residence status (while abandoning my life abroad) vs lose my residence status, I will feel being cheated by changing the original set of conditions and requirements that were shown to me.

I want to know whether such things are legally allowed or can I argue in a court on this matter? Can this be considered a legal breach of contract, for example?

Any help will be appreciated greatly. Thank you

Answer 1

No

Governments have sovereign power. Subject to constitutional and legislative constraints, governments can change laws as they wish. That includes legislative changes and administrative policies.

Most governments tend not to use this power arbitrarily because it tends to make investors wary - economists call this sovereign risk. Like any other risk, the higher it is, the greater return an investor expects - countries with high sovereign risk get less foreign investment and pay more for it.

Further, most governments don’t make laws that are retrospective but unless there is a constitutional prohibition (like there is in the United States, for example), they can. So Ireland could not only change the rules going forward, they could change the rules that applied in the past (assuming the Irish constitution doesn’t prohibit this, which I don’t know enough about).

If Ireland were to change this law, it’s likely there would be plenty of forward notice.

The arrangement you spell out between mother and son is not enforceable unless it’s a contract and the presumption is that such familial agreements are not contracts. Such a presumption can be overcome by an explicit declaration by the mother and the son that they intend for it to be legally binding, preferably in writing.

Now, governments can and do enter contracts which are enforceable by the courts but that is a one-on-one relationship between a government and a contractor; not a decree that must be followed by everyone. Unless, of course, they are the sort of government that doesn’t follow their own laws - I’m sure you can think of some - but they are huge sovereign risk.

Answer 2

Of course you can argue that, if the conditions really were broken.

Historically governments were immune to prosecution but somehow, recent generations have enlightened the courts of most countries.

That broadly makes governments as a whole legally comparable to their own departments and agencies, to companies, corporations or charities or to you and me.

If initial conditions were agreed as a contract, the party breaking those conditions can be sued in court and normally, that's all there is to it.

Where that rule falls down is in the "dark" areas, including most obviously national security