A.A. v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms Justice Baker
• Judgment Date: 29 October 2019
• Neutral Citation: [2019] IECA 272
• Docket Number: Appeal No. 2017/416
• Court: Court of Appeal (Ireland)
• Date: 29 October 2019

BETWEEN/

A. A.

APPELLANT

- AND -

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2019] IECA 272

Baker J.

Costello J.

Kennedy J.

Appeal No. 2017/416

THE COURT OF APPEAL

Judicial review – Naturalisation – Rationality – Appellant seeking judicial review – Whether the respondent’s conclusion was irrational

Facts: The appellant appealed to the Court of Appeal against the order of O’Regan J made on 26 July 2017, following delivery of a written judgment ([2017] IEHC 491) by which she refused judicial review by way of certiorari in respect of a decision of the respondent, the Minister for Justice and Equality, refusing the appellant a certificate of naturalisation under s. 15A of the Irish Nationality and Citizenship Act 1956. The appellant submitted that: (1) the decision did not flow from the material on which the decision maker relied, and failed to have regard to all of the material facts; (2) the trial judge erred in coming to the conclusion that the Minister had given sufficient reasons for her decision and had no obligation to give the appellant an opportunity to comment upon, explain or adduce further evidence on the matters to which she had regard; and (3) the trial judge erred in her approach to the discretionary power of the Minister in s. 16 of the 1956 Act to waive any of the statutory conditions.

Held by Baker J that the appellant had made out a case that the trial judge was in error in one respect, and that the decision of the Minister must be quashed on the grounds that the conclusion to which she came was irrational and did not flow from the facts before her, and was not based on a consideration of the facts necessary to come to the conclusion to which she came.

Baker J held that she would allow the appeal on that ground only.

Appeal allowed.

JUDGMENT of Ms Justice Baker delivered on the 29th day of October, 2019

1 This is an appeal against the order of O'Regan J. made on 26 July 2017, following delivery of a written judgment, A. A. v. Minister for Justice and Equality [2017] IEHC 491, by which she refused judicial review by way of certiorari in respect of a decision of the respondent, the Minister for Justice and Equality (“the Minister”), refusing the appellant a certificate of naturalisation under s.15A of the Irish Nationality and Citizenship Act 1956 as amended (“the 1956 Act”).

2 The appellant was born in Sudan and came to Ireland and applied for asylum here in 2006. The decision of the Refugee Applications Commissioner in 2007 refusing her application for asylum was unsuccessfully appealed to the Refugee Appeals Tribunal (the “RAT”), but the decision of that body was quashed by order of the High Court made on 24 November 2008 and remitted for re-hearing by the RAT before different tribunal members.

3 In the meantime, on 3 August 2007, the appellant married her husband, also from Sudan, who had at that time been granted refugee status in Ireland. The appellant's husband was granted a certificate of naturalisation on 26 April 2010. In those circumstances, and because she was granted a right of residence in the State on 29 January 2009 based on the fact of her marriage, the appellant withdrew her appeal from the naturalisation decision on 11 December, 2009.

4 The appellant and her husband have two children born in 2008 and 2011 respectively, both Irish citizens.

5 The appellant applied for a certificate of naturalisation on 30 September 2010, and her application was refused some six years later, on 3 June 2016. Some of the delay arose from questions and enquiries made regarding the background facts, but much of the delay is unexplained, or is partly explained by resource difficulties and the burden of work in the Office of the Minister. The possible consequence of the delay is a factor in my reasoning, as will later appear at para 61 et seq.

6 The application for judicial review was commenced on 15 August 2016 on the pleaded ground that the Minister's decision was irrational, unreasonable, “unlawfully opaque”, and wrong in law, that the applicant was held to a standard of good character which was unreasonable, and that her rights to fair procedure were breached. The alternative, but overlapping, ground is that the Minister either failed to weigh all relevant factors or did not sufficiently identify her reasons for rejecting the positive factors which supported the application including that the appellant had been lawfully resident in the State for ten years, had been married for nine years to an Irish citizen, a recognised refugee from his own country of origin, and that the couple had two Irish born children. It is also asserted that the decision failed to recognise that the matters on which the Minister relied had occurred more than ten years ago, before the appellant married her husband and settled in Ireland, and when she was a young woman in difficult personal circumstances. Finally, there is a plea that the Minister erred in not considering whether to exercise her statutory power under s. 16 of the 1956 Act to waive the conditions for the grant of a certificate of naturalisation.

7 By order of 20 October 2016, Humphreys J. granted leave to apply for judicial review on the grounds pleaded.

8 The respondent served a statement of opposition on 31 March 2017. The application is opposed, inter alia, as being out of time (but this plea was not advanced at trial or on appeal) and substantively that the provisions of the 1956 Act give the Minister an absolute discretion regarding the assessment of applications for a certificate of naturalisation. It is pleaded that a certificate of naturalisation is a privilege and not a right and the criteria to be applied are entirely a matter for the Minister, and that fair procedures were afforded to the appellant in the course of the correspondence leading up to the decision. It is pleaded that the decision is not opaque and is reasonable, just, and appropriate.

The impugned decision

9 The decision sought to be impugned was communicated to the appellant by letter from the Irish Naturalisation and Immigration Service (INIS) on 3 June 2016. It was accompanied by a recommendation set out in a short memorandum signed by three persons, being the Assistant Principal, an Executive Office and a Higher Executive Officer of the LSR team and whilst the formal decision does not say so, the Minister relied on and accepted the recommendation that a certificate of naturalisation not be granted. In those circumstances it is possible to discern two bases on which the Minister came to her decision.

10 The first basis expressly mentioned is the reliance by the Minister on what she describes as her “absolute discretion”. The second basis must be understood to be the reasons set out in the recommendation contained in the memorandum from the LSR team, that the appellant lacked credibility and that she was, therefore, not “of good character”.

11 The recommendation was that naturalisation be refused and it is useful to set out the entire short text:

“The appellant arrived in the State as an asylum seeker and that she has since returned to Sudan along with the fact that refugee status was refused indicates a lack of credibility of her asylum claim. She has admitted that her passport [PASSPORT NUMBER] was issued based on incorrect information. These are matters that go to character. I am not satisfied that the appellant is of good character. I would not recommend that the Minister grant a certificate in this case.”

12 The factual basis for the conclusion that the appellant lacked credibility was the fact that she returned to Sudan to visit her family in November 2010 for almost two months and later in August 2013 for a little over two weeks, suggesting a lack of credibility in the matters relied on in her application for asylum based on the political conditions in that country in 2006.

13 The other factual basis concerned the application made to the Sudanese authorities for a passport. A passport had previously issued in the name of the appellant and had been used in her application for a UK visa in 2006, but the appellant asserted that she had not applied for that passport, knew nothing of it having issued, and suspected that her identity was used by the gang of people smugglers who had assisted her in escaping from Sudan. It seems that a friend of hers who used to work for the Sudanese immigration authority had wrongly and, it seems, for reasons of convenience, reported it as lost and had cancelled it before herself making the application for a new passport on behalf of the appellant. These circumstances led to the conclusion in the recommendation from the LSR team that the passport on which the appellant relied to ground her application for naturalisation “issued based on incorrect information”.

The decision of the High Court

14 Having reviewed the relevant authorities and the arguments of the parties, O'Regan J. came to the conclusion, in reliance, in particular, on the judgment of Humphreys J. in A. M. A. v. Minister for Justice & Equality [2016] IEHC 466, at para. 60, that the decision maker “is not obliged in the naturalisation process to give advance notice to an appellant of an adverse consideration of which the appellant is already aware”. She concluded on the facts that the appellant was “well aware” of the reasons for the rejection of her application and that the Minister regarded her submissions to be internally inconsistent. O'Regan J. held that the Minister was entitled to make a finding of a lack of veracity and the fact that a mere eleven months had elapsed from the time when the appellant withdrew her application for asylum and her first return to Sudan to visit her family constituted a reasonable, rational, and factually correct basis for the decision. She held that the appellant had not made out a case that the Minister had acted in an arbitrary, capricious, or...