Ali Charaf Damache v The Minister for Justice and Equality, Ireland and The Attorney General
| Jurisdiction | Ireland |
| Judge | Ms. Justice Dunne |
| Judgment Date | 10 February 2021 |
| Neutral Citation | [2021] IESC 6 |
| Court | Supreme Court |
| Docket Number | [Appeal No: S:AP:IE:2019:000141] |
| Date | 10 February 2021 |
and
[2021] IESC 6
Clarke C.J.
MacMenamin J.
Dunne J.
Charleton J.
O'Malley J.
[Appeal No: S:AP:IE:2019:000141]
THE SUPREME COURT
Certificate of naturalisation – Revocation – Irish Nationality and Citizenship Act 1956 s. 19 – Appellant seeking declaratory relief – Whether s. 19 of the Irish Nationality and Citizenship Act 1956 should be declared invalid
Facts: The Supreme Court delivered judgment on 14 October 2020 on foot of proceedings which concerned the provisions of s. 19 of the Irish Nationality and Citizenship Act 1956, and the procedure provided in that section to revoke a certificate of naturalisation granted to an individual on the grounds provided for in s. 19(1) of the 1956 Act. In the judgment it was found that the process provided for revocation in s. 19 does not provide the procedural safeguards required to meet the high standards of natural justice applicable to a person facing revocation of a certificate of naturalisation by reason of the absence of an impartial and independent decision maker. Submissions were made to the Court as to the precise form of order which it was appropriate to make in the light of the judgment of the Court. The first respondent, the Minister for Justice and Equality, urged the Court not to find s. 19 of the 1956 Act to be invalid in its entirety but to find those provisions of s. 19 which concern the process by which revocation takes place invalid leaving in place those provisions of the section which contain the power of revocation and certain other provisions of the section which relate to the consequences of revocation. The appellant, Mr Damache, contended that the entirety of s. 19, apart from s. 19(4), should be declared invalid. It was contended that it was necessary to strike down all the substantive provisions of s. 19 which provide for revocation, and not just those sections that deal with the process of revocation. It was pointed out that to do otherwise would be to leave in place a power of revocation without any of the safeguards which the Oireachtas considered necessary when the Act was passed in 1956.
Held by Dunne J that s. 19(4) is very much a stand-alone provision, and there was no reason why this provision should be struck down by reason of the invalidity of any other provision of s. 19. Accordingly, Dunne J was satisfied that there was no reason why that part of s. 19 of the 1956 Act could not be severed from the offending portions of s. 19. Dunne J noted that there was no issue on the part of the Minister that s. 19(3) must be struck down having regard to the judgment of the Court; the Minister argued that only part of s. 19(2) should be struck down. Dunne J held that s. 19(2) must also be struck down in its entirety, as it seemed to her to be very much a part of the process involved in the revocation of a certificate of naturalisation and as such, is so inextricably bound up with the part held invalid, that it cannot remain as part of s. 19. Dunne J did not think that it was possible to sever part of the language contained in s. 19(2), as contended for by the Minister, without doing violence to the legislative intent demonstrated by the Oireachtas when enacting those provisions. Dunne J proposed that s. 19(2) should also be declared to be invalid. Dunne J was satisfied that to strike down s. 19(1) would be to do more than was necessary for the purpose of dealing with the constitutional invalidity found in s. 19 regarding the process for revocation. Dunne J held that there was no reason why it was necessary to strike down the provisions of s. 19(5) and (6) following the finding of invalidity in respect of s. 19(2) and (3).
Dunne J held that she would grant a declaration to the appellant to the effect that s. 19(2) and (3) of the 1956 Act are invalid, having regard to the Constitution.
Declaration granted.
Judgment of Ms. Justice Dunne delivered the 10th day of February 2021
This Court delivered judgment on 14 October 2020 on foot of proceedings which concerned the provisions of s.19 of the Irish Nationality and Citizenship Act, 1956 (hereinafter referred to as “the Act of 1956”), and the procedure provided in that section to revoke a certificate of naturalisation granted to an individual on the grounds provided for in s.19(1) of the Act of 1956.
In the judgment it was found that the process provided for revocation in s.19 does not provide the procedural safeguards required to meet the high standards of natural justice applicable to a person facing revocation of a certificate of naturalisation by reason of the absence of an impartial and independent decision maker.
Submissions were made to this Court as to the precise form of order which it was appropriate to make in the light of the judgment of the Court. Ms. Stack, S.C., on behalf of the Minister, has urged the Court not to find s.19 of the Act of 1956 to be invalid in its entirety but to find those provisions of s.19 which concern the process by which revocation takes place invalid leaving in place those provisions of the section which contain the power of revocation and certain other provisions of the section which relate to the consequences of revocation. For example, it is said that there is nothing in the judgement which would necessitate the removal of s.19(6) which relates to the publication of notice of revocation of a certificate of naturalisation in Iris Oifigiúil.
Counsel for the Minister, therefore, proposed that the provisions of s.19(1), s.19(2), subject to the severance of certain words therein, s.19(4), s.19(5) and s.19(6) need not be declared invalid. It is conceded that the entirety of s.19(3) cannot stand in the light of the Court's judgment. The words which the Minister accepts should be excised from s.19(2) are as follows:
“and the right of that person to apply to the Minister for an inquiry as to the reasons for the revocation.”
The balance of s.19(2), after the deletion of those words, should read as follows:
“Before revocation of a certificate of naturalisation the Minister shall give such notice as may be prescribed to the person to whom the certificate was granted of his intention to revoke the certificate, stating the grounds therefor.”
The reason why the Minister accepts that the words referred to above should be excised from s.19(2) is because of the reference to a right to apply “ to the Minister” in the latter part of s.19(2), and it is accepted that those words would not satisfy the requirement set out in the judgment that the process of review would be independent of the Minister.
Insofar as the remainder of s.19 is concerned, it is contended that it would not be necessary for this Court to declare the remaining parts of s.19 to be unconstitutional. Sections 19(1), (5) and (6) are regarded by the Minister as being necessary to be considered together, in that they are bound up with the substantive power to revoke a certificate of naturalisation, the basis upon which the power may be exercised, the effect of the exercise of the power of revocation, namely, that once the certificate of naturalisation has been revoked, the person concerned shall cease to be a citizen and, finally, the publication of notice of the revocation of the certificate.
Equally, it is contended that s.19(4) does not, as such, deal with revocation, but simply relates to circumstances in which a child of a person who has been granted a certificate of naturalisation under the Irish Nationality and Citizenship Act, 1935 had their name entered on the certificate of naturalisation and that entry is deemed to be a certificate of naturalisation under the Act of 1935. Clearly, the deeming provision contained in s.19(4) has nothing whatsoever to do with the process of revocation and, therefore, it is contended that it is not necessary to declare that this part of s.19 is invalid, particularly bearing in mind that striking down this provision could have adverse effects on any such children who may have benefited from the deeming provision.
Finally, it is submitted on behalf of the Minister that in the event that this court was concerned about the provisions of s.19(1), (5) and (6) remaining operative without any procedural safeguards that an order of prohibition could be made pending the introduction of the procedural safeguards required by the judgment. It was envisaged on behalf of the Minister that this would be provided “ in the first instance, by way of administrative procedure which would be binding on the Minister.”
Ms. McDonagh, S.C. on behalf of the appellant, contends that the entirety of s.19, apart from s.19(4), should be declared invalid. It is contended that it is necessary to strike down all the substantive provisions of s.19 which provide for revocation, and not just those sections that deal with the process of revocation. It was pointed out that to do otherwise would be to leave in place a power of revocation without any of the safeguards which the Oireachtas considered necessary when the Act was passed in 1956. She made the point that in the intervening period following the passage of the Act, our understanding and appreciation of the parameters required to ensure fair procedures has grown. Thus, it is contended that it was never the intention of the Oireachtas that the section would be operated without any safeguards, and it is contended that the Minister's approach would have that effect.
Counsel for the appellant said that it was unclear from the Minister's approach whether it was sought to retain the power to make revocation orders under s.19(1) only in cases where revocation is not contested, or whether it was to be retained in all cases but subject to an appeal to an...
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