AP v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Clarke C.J.,MacMenamin J.,Charleton J.
• Judgment Date: 25 September 2018
• Neutral Citation: [2018] IESCDET 131
• Docket Number: A:AP:IE:2016:000411 [2018] IECA 112
• Court: Supreme Court
• Date: 25 September 2018

[2018] IESCDET 131

An Chúirt Uachtarach

The Supreme Court

Clarke C.J.

MacMenamin J.

Charleton J.

A:AP:IE:2016:000411 [2018] IECA 112

DETERMINATION

BETWEEN

AP

Applicant

AND

The Minister for Justice and Equality

Respondent

Citizenship – National security – Points of law of general public importance – Applicant seeking citizenship – Whether the grant of citizenship was within the unfettered discretion of the respondent

Facts: The applicant, originally from the Islamic Republic of Iran, obtained refugee status. He sought citizenship of Ireland on several occasions and was always refused. No reason was supplied by the respondent, the Minister for Justice and Equality, in refusing his application and under freedom of information legislation, the applicant sought those reasons. A judicial review application as to the failure to supply reasons was heard in the High Court. As a preliminary, the applicant sought before McDermott J to inspect relevant documents. McDermott J gave judgment on his inspection of the documents on which the Minister had reached the relevant conclusion to refuse citizenship and ordered limited disclosure. Following that judgment, a further application was made for citizenship by the applicant and that was refused, the reason being that of national security. Since only part of the documentation on which the refusal was based had been disclosed, the applicant sought to overturn the decision on grounds related to the right to be heard. The High Court upheld the approach of the Minister by judgment of Stewart J of 19 July 2016 stating that the “applicant has failed to discharge the burden of proving that there was an error in the decision-making process engaged in by the respondent in this case.” On appeal to the Court of Appeal, Peart, Hogan and Gilligan JJ, the judgment of the High Court was upheld in the judgment of Gilligan J. In a separate judgment, Hogan J considered that the nature of the public interest in security was such that immunity could properly be claimed and that consequently no claim could be made that the decision of the Minister was contrary to law despite the absence of an opportunity for the applicant to contest any material put forward for ministerial decision. The applicant sought leave to appeal to the Supreme Court. A point of law of general public importance was contended by the applicant to be a procedure which allegedly cut across his right to a good name and which was in effect said to be unchallengeable by legal process. The applicant contended that what was involved was “a secret process”. A further point argued was the applicability of the EU Charter to Irish citizenship and the contention that rights thereunder inure to the benefit of applicants for citizenship.

Held by Clarke CJ, MacMenamin J and Charleton J that the following issues were central to any appeal: 1) whether the grant of citizenship is within the unfettered discretion of the Minister and, if so, whether any procedures inure to the benefit of an applicant; 2) whether national security issues need to be disclosed to an applicant for citizenship in such a way as to enable that applicant to meet, or at least make any relevant representations that may be thought appropriate, those concerns prior to any decision against a grant of citizenship is made; 3) whether fairness of procedures demands that a decision internal to the Department of Justice and equality to refuse citizenship be reviewed externally and by what mechanism; 4) whether the European Union Charter of Fundamental Rights and Freedoms governs the application for and refusal of citizenship by the Minister for Justice and...