Akram v Minister for Justice

JurisdictionIreland
JudgeMr. Justice Kearns
Judgment Date05 March 2004
Neutral Citation[2004] IEHC 33
CourtHigh Court
Docket Number[2001 No. 754 J.R.]
Date23 June 2004

[2004] IEHC 33

THE HIGH COURT

754 JR/2001
AKRAM v. MINISTER FOR JUSTICE & ORS

BETWEEN

SOHAIL AKRAM
APPLICANT

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, THE MINISTER FOR FOREIGN AFFAIRS, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

Citations:

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S8

A (A) V MEDICAL COUNCIL UNREP SUPREME 19.12.2003

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S3

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S3(A)

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S3(B)

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S19

KELLY V IRELAND 1996 3 IR 537

HENDERSON V HENDERSON 1843 3 HARE 100

MEDICAL PRACTITIONERS ACT 1978 PART V

JOHNSON V GORE WOOD 2001 2 WLR 72

WOODHOUSE V CONSIGNA 2002 2 AER 737 2002 1 WLR 2558

Synopsis:

IMMIGRATION

Asylum

Judicial review - Mandamus - Issue estoppel - Res judicata - Citizenship - Declaration of post nuptial citizenship - Whether previous determination of same issue - Whether applicant precluded from raising issue of respondents” statutory jurisdiction not put forward by him in previous proceedings - Fair procedures - Whether principles of fair procedures required that applicant be afforded oral hearing with legal representation prior to making of decision - Irish Nationality and Citizenship Act 1956, section 8 (2001/754JR - Kearns J - 5/3/2004)

Akram v Minister for Justice, Equality and Law Reform - [2004] 1 IR 452

Facts: the applicant applied, inter alia, for an order of mandamus compelling the respondent to issue him with a fresh passport. The background to that application was that the applicant was a Pakistani who came to Ireland and married an Irish citizen in 1984. In 1987, he had made a post-nuptial declaration pursuant to section 8 of the Irish Nationality and Citizenship Act 1956 whereby he accepted Irish citizenship. In 1993 an inquiry into that declaration was precipitated whereby his passport was impounded and his former Irish wife provided information to the respondents, which information had not been passed to the applicant. In 1997 the first respondent informed the applicant that the acceptance of his declaration of citizenship was withdrawn. He then commenced separate judicial review proceedings wherein the High Court granted an order of certiorari by virtue of the respondent’s failure to furnish the applicant with a statement from his Irish wife which statement had been relied upon by the respondent in reaching its decision in question. The applicant then applied for a fresh passport which was refused on the grounds that the first respondent was not satisfied that his marriage satisfied the provisions of section 8 of the Act of 1956. He then sought to judicially review that decision on the grounds that the decision was made without jurisdiction given the absence of any express statutory provision in the Irish Nationality and Citizenship Act 1956 empowering the respondents to withdraw an acceptance of a declaration of post nuptial citizenship and that the principles of fair procedures required that the applicant be afforded an oral hearing with legal representation prior to the making of any such decision. The defendants contended that the first issue was res judicata as it had been decided in the first set of judicial review proceedings brought by the applicant or alternatively that the applicant was precluded from raising the issue by virtue of the rule in Henderson v. Henderson. Finnegan J in the first set of proceedings held that the first respondent had the power to investigate the circumstances surrounding the marriage and if satisfied on the evidence, having complied with the requirements of natural and constitutional justice, that the requirements of section 8 of the Act of 1956 had not been complied with, could determine that the lodging of his declaration pursuant to section 8 was ineffective to confer Irish citizenship.

Held by Kearns J in refusing the relief sought, 1, that the issue of statutory power under section 8 of the Act of 1956 to revisit the question of citizenship had been effectively decided in the prior judicial review proceedings brought by the applicant and was res judicata as the decision of Finnegan J. therein that there had been a want of fair procedures in failing to make certain statements available to the applicant was a finding necessarily premised on the existence of a valid statutory power to act in the first place.

2. That the applicant was, in any event, estopped from raising the issue by virtue of the rule in Henderson v. Henderson which is to the effect that the plea of res judicata applies to every point which properly belonged to the subject of prior litigation involving the parties and which they, exercising reasonable diligence, might have brought forward at that time.

In rejecting the applicant’s contentions that fair procedures were breached, that the rule in Henderson v. Henderson applied equally to any failure on the part of the applicant to address any particular aspect of the procedures adopted prior to the judgment of Finnegan J. and that the only issue still extant was whether there had been a want of fair procedures since that date. In respect of that period, the applicant was aware that the first respondent was purporting to comply with his obligations on foot of that judgment.

Reporter: P.C.

1

JUDGMENT of Mr. Justice Kearns delivered the 5th day of March, 2004.

2

This is a case which concerns the power of the first named respondent under s. 8 of the Irish Nationality and Citizenship Act, 1956to decide that the applicant herein did not fulfil the statutory requirements for making a declaration of post nuptial citizenship.

3

On 12 th November 2001 the High Court (O'Neill J.) gave leave to the applicant to apply for the following reliefs:-

4

(a) an order of certiorari quashing the decision of the respondents communicated by letter dated 27 th June 2001 in which it was indicated that the applicant herein did not fulfil the statutory requirements for making a declaration of post nuptial citizenship as set out in s. 8 of the Irish Nationality and Citizenship Act, 1956arising from the concerns of the respondent in relation to the applicant's marriage to one Kathleen Kelly, an Irish citizen.

5

(b) a declaration that the failure on the part of the respondents to advise the applicant of the actual procedure then being employed to arrive at a decision with respect to its citizenship constituted a breach of his right to fair procedures and constitutional and natural justice.

6

(c) an order of mandamus directing the respondents to issue a passport to the applicant.

7

The amended statement of grounds in the case sets out much of the history of the matter and the arguments advanced on behalf of the applicant in support of his claims.

8

The applicant was born in Pakistan on 10 th January 1959. He came to Ireland in 1982 where he married Kathleen Kelly, an Irish citizen, in Dublin on 11 th July 1984. There are no children of this marriage. Some few months after this marriage, the applicant went to Pakistan where he married a second time, on this occasion to one Ansa Butt, a citizen of Pakistan, following which he returned to Ireland where, he contends, he co-habited with Kathleen Kelly until they separated in 1990. He then returned to Pakistan and brought Ansa Butt to Denmark where he presently resides. A son of this union was born on 3 rd May 1993 in Denmark.

9

The applicant made a post nuptial declaration pursuant to the provisions of the Nationality and Citizenship Act, 1956on 13 th July 1987 whereby he accepted Irish citizenship. Following the birth of his child in 1993, the applicant applied to the Irish Embassy in Denmark to register the child as an Irish citizen. This application precipitated an inquiry by the Department of Justice as a result of which the applicant's passport was impounded in 1993. As part of that inquiry, contact was made with Kathleen Kelly who provided certain information to the first named respondents by way of statements which were not, however, furnished to the applicant.

10

On 7 th March 1997, the first named respondent informed the applicant that the acceptance of his declaration of citizenship had been withdrawn and that passport facilities would not be extended to him.

11

Thereafter the applicant commenced judicial review proceedings (JR 450/1997) wherein on 21 st December 1999 the High Court (Finnegan J.) granted an order of certiorari by virtue of the failure of the respondents to comply with principles of natural and constitutional justice, in particular, in arriving at a decision the respondent had failed to furnish the applicant with a statement from the applicant's Irish wife which said statement had been considered and relied upon the respondent in arriving at the decision in question.

12

Following the order of the High Court, which was perfected on 12 th January 2001, the applicant on 27 th January 2000 applied for a fresh passport. A considerable period of delay then followed during which there was no decision as to whether or not the applicant was in the opinion of the respondent entitled to a passport. By letter dated 21 st February 2000, Ms. Anne Hopkins from the Citizenship Section of the Department of Justice wrote to the applicant enclosing a statement from his Irish wife, Kathleen Kelly. The applicant's views on her statement were sought as were his views as to whether or not he was entitled to Irish citizenship. It was indicated in the letter that the Minister might not be in position to make a decision on whether or not to issue an Irish passport to the applicant until the completion of all correspondence in relation to the matter.

13

By letter dated 10 th May 2000, the applicant purported to respond to the said letter. His solicitors wrote a follow up letter on 27 th September, 2000, in the absence of any reply, pointing out that Finnegan J., in granting...

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