Ezeani & anor v MJLR, [2011] IESC 23 (2011)

Docket Number:38/06
Judge:Fennelly J.

THE SUPREME COURTJUDICIAL REVIEWAppeal Number: 38/2006Denham J.Hardiman J.FennellyJ.MATTHEW EZEANIELIZABETH ALLENApplicants/RespondentsANDTHE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORMCOMMISSIONER OF AN GARDA SÍOCHÁNAATTORNEY-GENERAL AND IRELANDRespondents/AppellantsJUDGMENT of Mr. Justice Fennelly delivered the 12th day of July 2011. 1. Acquisition of citizenship on marriage or “post-nuptial citizenship,” was permitted by section 8 if the Irish Nationality and Citizenship Act, 1956 as amended by section 3 of the Act of the same name of 1986. Section 4 of the Act of 2001 repealed the procedure subject to a transitional provision for existing cases. To that extent, the present case deals with the application of a section of merely historic interest.2. In the present case, the first-named appellant (whom I will call “the Minister”) rejected the declaration of post-nuptial citizenship made by the first-named respondent on the ground that the couple were not living together as man and wife for the required three years.3. Hanna J, in an ex tempore judgment of 11th October 2005, held that the Minister had not observed fair procedures. The Minister now appeals against that judgment.4. Section 8 of the Act of 1956, as amended in 1986, provided:(1) A person who is an alien at the date of that person's marriage to a person who is, or who after the marriage becomes, an Irish citizen (otherwise than by naturalisation or by virtue of this section or section 12) shall not become an Irish citizen merely by virtue of the marriage, but may do so by lodging, not earlier than three years from the date of the marriage or from the date on which the person last mentioned became an Irish citizen (otherwise than as aforesaid), whichever is the later, a declaration in the prescribed manner with the Minister, or with any Irish diplomatic mission or consular office, accepting Irish citizenship as post-nuptial citizenship: provided that—(a) the marriage is subsisting at the date of lodgment of the declaration, and(b) the couple are living together as husband and wife and the spouse who is an Irish citizen submits an affidavit to that effect when the declaration is being lodged.(2) A person who lodges a declaration under subsection (1) shall be an Irish citizen from the date of lodgment.5. Sub-section 3 of the section is not relevant.Appellants’ marriage and declaration6. The first-named appellant is a citizen of Nigeria. The second-named appellant is an Irish citizen. The appellants were married to each other at the Hendon Register Office in the London Borough of Barnet on 3rd March 1999.7. On 28th April 2002, the first-named appellant made a declaration of that marriage on a prescribed form. The declaration was, as required, supported by an affidavit sworn by the second-named appellant in which she swore that the appellants were then living together as husband and wife, that their marriage was subsisting and that no proceedings for divorce or annulment of the marriage had been or were about to be commenced.8. The first-named appellant applied to the Minister for Irish citizenship on the basis of that declaration on 15th May 2002.9. Following a lengthy period of correspondence, Mr Gerry McConnell, Assistant Principal of the Immigrant and Citizenship Division of the Department of Justice Equality and Law Reform gave notice on behalf of the Minister on 14th November 2003 to the first-named appellant that he was refusing his application. He stated that he was not satisfied that the appellants were living together as husband and wife on 28th April 2002, notwithstanding the fact that their marriage was subsisting at that time. The reasons for that conclusion are set out in the letter and will be considered later.The proceedings10. The appellants applied, by way of judicial review, for an order of certiorari of the Minister’s decision of 14th November 2003, thus conveyed, and a declaration that the first-named appellant is entitled to a declaration of post-nuptial citizenship.11. The Statement required to Ground an Application for Judicial Review of 15th of December 2003 sought an order of certiorari of the Minister's decision setting forth 12 grounds which can be summarised as follows:1. the Minister acted ultra vires and committed other errors of law;2. there was bias on behalf of the Minister;3. the Minister infringed the constitutional rights of the appellants and in particular wrongly required them to attend separately for interview.12. By order sated 20th May 2004, the High Court (O’Caoimh J) granted leave to apply for judicial review on the grounds advanced.13. The appellants claimed before the High Court that the Minister’s decision was flawed because:i) there was no, or no sufficient evidence before the Minister that the appellants were not living together as husband and wife;ii) the Minister had granted residency permits to the first-named appellant accepting that the first-named appellant was resident at the home of the second-named appellant for most of all of the relevant three year period;iii) the Minister had failed to observe fair procedures in not disclosing to the appellants evidence which was taken into consideration in determining the application;iv) the Minister imposed an incorrect burden of proof.14. Hanna J decided the application on the single basis that the Minister had not observed fair procedures. He noted that the Minister's decision was founded on a disbelief in the truthfulness of the appellants. This was particularly serious for the first-named appellant, since he is a solicitor. The learned judge thought that no effort had been made to confront him in any meaningful way and to enable the appellants to challenge the evidence offered against them. They should have been allowed an opportunity to cross-examine members of An Garda Síochána. The appellants had not, therefore, been afforded fair procedures.15. In so far as the deciding officer had, at one point in the correspondence, indicated a requirement that he should be satisfied beyond reasonable doubt, Hanna J found that he had been corrected in this view and that he did not apply an inappropriate burden of proof. The learned judge was not satisfied, on the evidence, that there was any evidence of bias shown on behalf of the deciding officer.16. In short, the learned judge was particularly concerned that the decision of the Minister amounted to a finding that the appellants were untruthful and that the Minister had not attached sufficient weight to the potential criminality thereby implied.Consideration by the Minister17. The Minister, in the form of Mr McConnell’s letter of 14th November 2003, gave the following reasons for his conclusion that the appellants were not living together as husband and wife:(i) In June 2002, enquiries with the local Gardaí at Clara revealed that Ms Allen was living with Mr Billy Fitzpatrick at that time (some 6 weeks after the lodgement of the declaration). The Clara gardai were aware that Ms Allen had married a Nigerian national but were of the opinion that this person was not residing at the address in Clara;(ii) On four occasions between September and November 2002, members of the Garda Síochána made unannounced visits to 30 Silverdale...

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