B (A) v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 18 June 2009
• Neutral Citation: [2009] IEHC 449
• Docket Number: [No. 1080 J.R./2008]
• Court: High Court
• Date: 18 June 2009

[2009] IEHC 449

THE HIGH COURT

[No. 1080 J.R./2008]

B (A) v Min for Justice

JUDICIAL REVIEW

BETWEEN/

A.B.

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S14

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S16

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15(1)(B)

UNHCR CONVENTION & PROTOCOL RELATING TO THE STATUS OF REFUGEES 1951 ART 34

SHUM v IRELAND & ORS 1986 ILRM 593 1986/4/1484

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15(1)

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S16(1)

IMMIGRATION

Naturalisation

Citizenship - Certificate of naturalisation - Refusal to reconsider application - Being of good character - Absolute discretion of respondent - Claim that applicant came to adverse attention of garda - Disputed claim - Applicant not charged or convicted of any offence - Irrationality of decision - Non compliance with conditions of naturalisation -Whether decision immune from judicial review in light of absolute discretion of respondent - Pok Sun Shun v Ireland [1986] ILRM 593 distinguished - Irish Nationality and Citizenship Act 1956 (No 26), ss 14, 15 & 16 - Relief refused (2009/1080 JR - Cooke J - 18/6/2009) [2009] IEHC 449

B(A) v Minister for Justice

JUDGMENT of

Mr. Justice Cooke

1 delivered on the 18th day of June, 2009.

2 1. By order of Finlay Geoghegan J. of 6^th October, 2008, the applicant was granted leave to apply to the court for an order of certiorari to quash a decision ("the Contested Decision") dated 21^st July, 2008, in which the respondent ("the Minister") refused to reconsider an earlier decision of 13^th March, 2008, which had rejected an application by the applicant for a certificate of naturalisation under s. 14 of the Irish Nationality and Citizenship Act 1956 (as amended). The order also granted leave to seek additional reliefs including a declaration that the contested decision had been made in breach of the applicant's rights to constitutional and natural justice and an order of mandamus requiring the Minister to reconsider the original application.

3 2. The provisions of the 1956 Act which are relevant to the issues raised in this application are contained in sections 14, 15 and 16, as follows:-

4 2 "14. Irish citizenship may be conferred on a non-national by means of a certificate of naturalisation granted by the Minister.

5 3 15(1) Upon receipt of an application for a certificate of naturalisation, the Minister may, in his absolute discretion, grant the application, if satisfied that the applicant -

a (a)(i) is of full age or

2 (ii) is a minor born in the State;

(b) is of good character

6 (c) has had a period of one year's continuous residence in the State immediately before the date of the application and, during the eight years immediately preceding that period has had a total residence in the State amounting to four years;

7 (d) intends in good faith to continue to reside in the State after naturalisation; and

8 (e) has made, either before a justice of the district court in open court or in such manner as the Minister, for special reasons, allows, a declaration in the prescribed manner, of fidelity to the nation and loyalty to the State.

9 a (2) The conditions specified in paragraphs (a) to (e) of subsection (1) are referred to in this Act as conditions for naturalisation.

10 16. The Minister may in his absolute discretion grant an application for a certificate of naturalisation in the following cases, although the conditions for naturalisation (or any of them) are not complied with:

11 (g) where the applicant is a person who is a refugee within the meaning of the United Nations Convention relating to the status of refugees of 28^th July, 1951, and the protocol relating to the status of refugees of 31^st January, 1967, or is a stateless person within the meaning of the United Nations Convention relating to the status of stateless persons of 28^th of September, 1954."

12 3. Leave was granted to seek those reliefs on the basis of the grounds set out in Section 5 of the proposed statement of grounds for judicial review. The four grounds in question are set out in largely narrative form in subparas. (a) - (d) of Section 5 so as to incorporate both matters of fact and argument rather than as precise definitions of specific illegalities; but the challenge to the Contested Decision can be described as effectively directed and the validity of the reason stated by the Minister for the original refusal of the certificate as contained in his letter of 13^th March, 2008, namely, that the Minister did not consider that the applicant fulfilled the naturalisation condition of being of "good character" as required by subpara. (b) of section 15(1).

13 4. The factual background which gives rise to this claim can be briefly summarised as follows:

14 a "(a) The applicant was born in Nigeria in 1973 but fled to this country in 2002 and successfully applied for refugee status which was granted on 15^th May, 2003;

15 (b) On 7^th July, 2005, he applied to the Minister for a certificate of naturalisation as an Irish citizen in accordance with s. 14 of the Act.

16 (c) By letter of 13^th March, 2008, the Minister refused that application. The letter stated:

17 'The Minister has considered your application under the provisions of the Irish Nationality and Citizenship Acts1956-1986 and has decided not to grant a certificate of naturalisation. A copy of the submission that was prepared for the Minister with his decision annotated thereon is enclosed for your information. In reaching this decision the Minister has exercised his absolute discretion, as provided for by the Irish Nationality and Citizenship Acts 1956 and 1986. There is no appeals process provided under this legislation. However you should be aware that you may reapply for the grant of a certificate of naturalisation at any time. When considering making such a reapplication you should give due regard to the reasons for refusal given in the attached submission. Having said this, any further application will be considered taking into account all statutory and administrative conditions applicable at the time of application.'

18 (d) Attached to that letter of refusal was a file note in which the Citizenship Section of the department recommended to the Minister that the certificate be refused and the reason for the recommendation was given under the heading 'other relevant information' as follows:

"Mr. B. has come to the adverse attention of An Garda Síochána. On 15/02/2006 at District Court 51, Mr. B. was charged with no driving licence and failed to produce a driving licence - outcome - non-conviction, case not called in court."

19 (e) This stated reason for the refusal came as a surprise to the applicant who was not aware of having come to such "adverse attention" and upon making further enquiry he learned that it arose from an occasion when he had been stopped at a checkpoint by Garda Emer O'Doherty on 8^th May, 2005;

20 (f) According to the information supplied by the garda í, on that occasion the applicant had been asked to produce his driving licence and, as he apparently did not have it on him at the time, he was required to produce it within ten days at a garda station;

21 (g) when he failed to do so Garda Doherty apparently applied to issue a summons in the District Court but this was never served or proceeded with and no conviction was recorded.

22 5. The applicant has, according to Dublin City Motor Tax Office, held a provisional driving licence since May 2003, and therefore held such a licence on 8^th May, 2005.

23 6. The applicant concedes that he did not have the original driving licence on him on the occasion in question but claims that he showed a photo-copy of it to the garda and that he was not asked to produce the original within ten days as a result.

24 7. Having assembled written confirmation of this background from the gardaí and the Motor Tax Office the applicant had his solicitor write to the Citizenship section of the Department on 11^th July, 2008, placing the...