AA v The Minister for Justice and Equality

JurisdictionIreland
JudgeMs. Justice Stewart
Judgment Date21 July 2016
Neutral Citation[2016] IEHC 416
Docket Number[2014 No. 679 J.R.]
CourtHigh Court
Date21 July 2016
BETWEEN
A.A. (Algeria)
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT

[2016] IEHC 416

[2014 No. 679 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – S.15 of the Irish Nationality and Citizenship Act 1956 – Refusal to grant certificate of naturalisation – certiorari – Exercise of ministerial discretion Involvement in crime

Facts: The applicant sought an order of certiorari for quashing the decision of the respondent for refusing to grant certificate of naturalisation to the applicant. The applicant also sought certain other declatory reliefs. The respondent contended that given the nature and gravity of the offences committed by the applicant, it was not deemed appropriate to grant him that certificate.

Ms. Justice Stewart refused to grant the desired reliefs. The Court held that the respondent had been vested with absolute discretion under s. 15 of the Irish Nationality and Citizenship Act 1956 to refuse to grant the certificate. The Court held that unless it was shown that the respondent had acted in breach of fair procedures or acted in an arbitrary manner, the decision of the respondent would stand. The Court, however, noted that in the light of new legislation, the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016, the respondent could reconsider the application under the new guidelines referred therein.

JUDGMENT of Ms. Justice Stewart delivered on 21st day of July, 2016.
1

This is an application seeking judicial review by way of, inter alia, an order of certiorari quashing the decision of the respondent to refuse to grant a certificate of naturalisation to the applicant, pursuant to s. 15 of the Irish Nationality and Citizenship Act 1956 (as amended).

Background
2

The applicant is an Algerian national who left Algeria in May, 2000 and arrived in this State on 1st July, 2000. He sought asylum on 16th July, 2000, and was duly granted refugee status on 15th October, 2002. On 1st May, 2003, the applicant married his partner. The couple have two children, both of whom are Irish citizens. In the last 11 years, he has applied several times for a certificate of naturalisation. The impugned decision is the third such refusal of an application from this applicant.

Leave granted
3

On 17th November, 2014, the applicant applied ex parte for leave to seek judicial review by way of certiorari to quash the respondent's decision dated 24th June, 2014. Leave was granted by MacEochaidh J. with the order perfected on 21st November, 2014. The Notice of Motion was issued on 25th November, 2014, with Statement of Grounds and the applicant's Affidavit sworn on 13th November, 2014.

Reliefs sought
4

The applicant seeks the following reliefs:-

a. An order of certiorari quashing the respondent's decision to refuse the applicant's application for a certificate of naturalisation;

b. A declaration that the respondent's exercise of her discretion to refuse the applicant's application lacks reasonable grounds, is not factually sustainable and is not in accordance with law;

c. A declaration that the failure on behalf of the respondent and her servants/agents to take into account relevant representations and submissions made by and on behalf of the applicant is in breach of fair procedures, the applicant's rights, natural law and constitutional justice;

d. If required, an order of mandamus directing the respondent and/or her servants/agents to review the applicant's application for a certificate of naturalisation, as well as the representations referred to above; and,

e. If necessary, an order of mandamus directing the respondent to provide information to the applicant about the factors that might affect further applications made by him for a certificate of naturalisation, so as to catalyse his naturalisation as an Irish citizen.

Previous court appearances
5

On 16th July, 2003, the applicant appeared before the District Court sitting in Macroom, Co. Cork, charged with possession of certain articles pursuant to ss. 6 and 7 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 (as amended). These charges were subsequently struck out by District Justice James O'Connor.

6

On 17th December, 2003, the applicant appeared again before the District Court sitting in Macroom, charged with custody of a false instrument under s. 29 of the 2001 Act. District Justice Terence Finn deemed it appropriate to apply s. 1(1)(i) of the Probation of Offenders Act, 1907, not only to the s. 29 charge, but also to the charges under ss. 6 and 7 of the 2001 Act, as all charges derived from the same incident.

7

On 10th May, 2004, the applicant appeared before the District Court sitting in Cork city, charged with failure to produce an insurance certificate and driving without insurance pursuant to the Road Traffic Acts, 1961-2014 (as amended). The applicant was convicted of driving without insurance. He received a €300.00 fine and a three year endorsement on his driving licence.

8

On 10th November, 2009, the applicant again appeared before the District Court sitting in Cork city, charged with failing to produce an insurance certificate and driving without insurance. Upon attending the District Court, the applicant produced his insurance certificate and a €400.00 fine was imposed. Both of the above fines were paid by the applicant.

Naturalisation applications
9

In August, 2005, the applicant first applied for a certificate of naturalisation. On 13th March, 2008, the respondent informed the applicant of the decision to refuse his application, pursuant to the respondent's absolute discretion pursuant to s. 15 of the 1956 Act, on grounds of dissatisfaction with to the applicant's good character. The second application, which was submitted in 2009, was refused in February, 2013 on the same grounds. The letter received by the applicant from the respondent, which communicated this second refusal, also stated that the applicant was entitled to re-apply at any time in the future.

10

The applicant acted upon this invitation and submitted a third application seeking a certificate of naturalisation. The applicant notes that he made full disclosure of his two previous summary convictions on the application form for his third application. On 6th February, 2014, the applicant received a letter from the respondent's agents which referred to incidents/offences contained in an attached Garda report and pertaining to the applicant. The respondent's letter requested submissions from the applicant in relation to the incidents/offences and confirmation that the fines imposed were paid by the applicant. The letter also requested details of the applicant's employment history and a copy of his Garda National Immigration Bureau card. On 14th February, 2014, the applicant replied to the letter, informing the respondent that all fines imposed in relation to road traffic offences had been paid. The applicant also re-emphasised that the charges in relation to his Macroom District Court appearances in 2003 had been dismissed and confirmed that he had not come to the adverse attention of An Garda Síochána since 2009.

11

On 24th June, 2014, the applicant received a letter from the respondent's agents informing him that his third application was unsuccessful on the grounds that the respondent had exercised her absolute discretion as provided by the Irish Nationality and Citizenship Acts 1956 and 1986. This refusal document stated that '[G] iven the nature of the offences, I am not satisfied that the applicant is of good character and I would not recommend that the Minister grant a certificate of naturalisation in this case.'

12

The applicant was 'dismayed' by the respondent's decision. On 10th August, 2014, the applicant's solicitor wrote to the respondent requesting, inter alia, that the respondent revise the decision to refuse the applicant's naturalisation application on foot of the following mitigating circumstances;

- With regard to the applicant's conviction of 10th November, 2009, for driving without insurance, he did possess insurance at the time,

- The offences with which the applicant was charged in 2003 were dismissed under 1907 Act,

- The applicant's wife is now a citizen of Ireland, having been granted a certificate of naturalisation on 31st March, 2014. Thus, he is the only member of his family that is not a citizen,

- The applicant satisfied the requirement as set out in Hussain v. Minister for Justice [2011] IEHC 171, that the ' applicant's character and conduct must match up to reasonable standards of civic responsibility as gauged by reference to contemporary values', and;

- Four character references of the applicant included with the letter, one of which was the applicant's wife.

13

On 11th August, 2014, the respondent replied to the applicant acknowledging receipt of the letter of the previous day. It appears that the applicant was unsure from the contents of that letter as to whether the respondent would consider the contents of the applicant's letter of 10th August. On 13th August, 2014, the applicant's solicitor again wrote to the respondent requesting that the representations contained in the letter dated 10th August be considered by the respondent.

14

On 18th August, 2014, the respondent wrote to the applicant acknowledging the representations contained within the letter of 10th August. The respondent also stated that correspondence was not submitted to the respondent for her consideration. That same letter also noted that there is no appeals process provided under the 1956 Act and again invited the applicant to re-apply at any time in the future.

Applicant's submissions
15

Mr. de Blacam, S.C., along with Ms. O'Leary, B.L., for the applicant, argued that the respondent acted in breach of law, the principles of European law and the guarantee of democratic government contained in...

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