Damache v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 31 May 2019
• Neutral Citation: [2019] IEHC 444
• Court: High Court
• Docket Number: [2019 No. 17 J.R.]
• Date: 31 May 2019

BETWEEN

ALI CHARAF DAMACHE

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

NOTICE PARTY

[2019] IEHC 444

[2019 No. 17 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Citizenship – Revocation – Applicant seeking certiorari of the notice of intention to revoke the applicant’s citizenship – Whether s. 19 of the Irish Nationality and Citizenship Act 1956 is contrary to the Constitution

Facts: The applicant, Mr Damache, filed proceedings on 11th January, 2019. The first two reliefs sought were certiorari of the notice of intention to revoke the applicant’s citizenship dated 18th October, 2018 and an order of prohibition restraining the first respondent, the Minister for Justice and Equality, from revoking the applicant’s citizenship. The statement of grounds went on to claim a number of declarations, specifically that s. 19 of the Irish Nationality and Citizenship Act 1956 is contrary to the Constitution, the ECHR (as applied by the European Convention of Human Rights Act 2003) and EU law, including the EU Charter on Fundamental Rights. Damages for breach of ECHR rights were also sought, although the 2003 Act was not specifically cited in that context. The High Court (Humphreys J) granted leave on 14th January, 2019 together with an ex parte stay on the revocation of citizenship. When the matter next came before the court on 21st January, 2019, the stay was extended. The order on that date had been perfected, although it was not included in the book of pleadings furnished to the court. It provided that the pre-existing stay on revocation of citizenship was extended until the determination of the proceedings. A statement of opposition was filed on 22nd March, 2019.

Held by Humphreys J that, insofar as the case involved a challenge to the legislation in principle, it was fundamentally misconceived and failed. Humphreys J held that, insofar as it involved a challenge to the legislation as applied to the applicant, this had not been made out. Humphreys J held that it ignored the presumption of constitutionality and the requirement of a conforming interpretation; it asserted disproportionality in the context where the facts had yet to be found, a decision had yet to be made and indeed the applicant had yet to come clean on a range of factual matters. Much as in Habte v Minister for Justice and Equality [2019] IEHC 47, the applicant sought a pre-emptive order to cut off at the knees an inquiry that had yet to even begin; Humphreys J held that this was not an appropriate procedure. Humphreys J noted that the legislature had provided for the procedure of an independent committee of inquiry chaired by a judicial figure to report prior to any decision on the revocation of the applicant’s nationality. Humphreys J held that this process should be allowed to continue and indeed to conclude. Accordingly, Humphreys J dismissed the proceedings and the respondents were released from any requirement to continue to extend time for the making of an application for an inquiry. Humphreys J held that if such application was made it could of course be without prejudice to any steps that may be taken in the proceedings in any other forum if that arose. Subject to hearing counsel, Humphreys J was minded to extend the stay on the actual revocation of citizenship.

Humphreys J held that, having heard counsel on the question of costs, on the one hand the proceedings did raise a general issue, but on the other hand it was not one of any great legal merit. Humphreys J held that there was a distinct element of prematurity to the proceedings which furthermore were primarily taken to advance the applicant’s personal interest rather than out of civic concern for the general welfare of society. Humphreys J held that there was also an element of lack of disclosure of the applicant’s full circumstances. Humphreys J held that overall the circumstances were not really sufficient to displace the default rule that costs follow the event, so that would be the order.

Proceedings dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 31st day of May, 2019

1 On 18th August, 2007, a Swedish regional newspaper published a cartoon depicting the Islamic prophet Muhammad. That editorial decision was to trigger events that had a far-reaching effect on Irish constitutional jurisprudence, an effect that continues to be felt in the present case nearly 12 years later.

2 The applicant, who gives his address as Federal Detention Centre, Philadelphia, has already left something of a trace on jurisprudence in that he has been involved in eleven sets of proceedings in this jurisdiction alone, leaving aside proceedings in Spain and the U.S. He has instituted nine of those sets of proceedings (mainly judicial reviews but also including Article 40 applications and plenary proceedings), and has been the respondent or defendant in the other two proceedings (one criminal and one extradition application). Three of his judicial reviews, including the present one, involved constitutional challenges to legislation. He has been before every ordinary court in the land at all five levels and has been responsible for seven written judgments already, this being the eighth. The number of different judges of the Superior Courts he has been before is well into double figures and it will, thus, be necessary to explain the procedural history in some detail. A certain amount of background information in relation to the applicant's history appears in the other judgments in these proceedings. His personal and family situation is also somewhat complicated, involving at least three wives of one sort or another, and I will come to those in due course.

3 Before getting into the history, it may be helpful as a thumbnail guide to start by listing the nine cases instituted by the applicant.

(i). Damache v. D.P.P. [2010 No. 1501 J.R.]: a challenge to the constitutionality of s. 29 of the Offences Against the State Act 1939 which arose out of criminal proceedings against the applicant.

(ii). Damache v. Governor of Cork Prison [2010 No. 2404 S.S.]: an ex parte application by way of habeas corpus which was refused by Butler J.

(iii). Damache v. Governor of Cork Prison [2011 No. 308 J.R.]: that began as a judicial review in which leave was granted on 11th April, 2011, but the proceedings were then converted to plenary proceedings on 31st January, 2012 and are referred to further below.

(iv). Damache v. D.P.P. [2012 No. 998 J.R.]: a proposed judicial review against the D.P.P. which does not ever appear to have been moved, and certainly leave is not recorded as having been granted.

(v). Damache v. Governor of Cork Prison [2012 No. 1490 P.]: this appears to be the plenary version of the earlier judicial review, and culminated in an order striking out the proceedings with no order as to costs on consent, made by Dunne J., on 23rd July, 2013.

(vi). Damache v. Governor of Cloverhill Prison [2012 No. 1633 S.S.]: another ex parte habeas corpus application which was refused.

(vii). Damache v. D.P.P [2013 No. 670 J.R.]: the applicant's first judicial review regarding the failure of the D.P.P. to prosecute in this jurisdiction in respect of matters for which his extradition was sought.

(viii). Damache v. D.P.P. [2014 No. 112 J.R.]: the applicant's second judicial review in relation to his non-prosecution in the State.

(ix). Damache v. Minister for Justice and Equality [2019 No. 17 J.R.]: being the present proceedings.

Applicant's early immigration history

4 The applicant appears to have been born on 21st August, 1965 in Algeria and to be an Algerian citizen by birth. He claims to have moved to France aged about six and to have grown up there. He claims to have been married in France but does not say when or to whom, or what his wife's name was or what citizenship she held. He claims to have children living in France, although he does not say how many children, who their mother is, their names, ages, dates of birth or who they are living with at the moment. Nor does he give any information about the ongoing relationship, if any, that has with the children. He claims the children are French citizens, although does not explain how that is so, whether by birth, descent or otherwise. He says that he left France when his wife died. He does not say when she died or indeed how. Overall, his affidavit as to his family circumstances is pitifully inadequate.

5 He moved to the State when he was 35 years old in 2000 and applied for asylum at Dublin Airport on 28th July of that year. That fleeting application would normally be an appropriate basis to anonymise the proceedings; but given that he has been named in all of the proceedings to date, the applicant's side in this case agrees that he can be named in the present judgment. He completed his asylum questionnaire in French. As is apparent from that questionnaire, he asserted that he was unmarried and had no children, that his only relative was his mother in Algeria and that he had lived in Algeria until 1998, travelling to Ireland via Turkey, Greece and Italy.

6 The asylum claim was rejected and the applicant duly appealed to the Refugee Appeals Tribunal. That appeal was also rejected and the applicant was so notified on 30th October, 2002. The asylum application was then formally refused by the Minister on 3rd December, 2002. On 12th December, 2002, not long after the asylum claim had been refused and at a time, therefore, when the applicant had no legal basis whatsoever for his presence in the State, he married Ms. Mary Cronin, an Irish citizen by birth, who was then a 25-year-old young woman. No ongoing relationship appears to exist with her but I am informed that there has been no formal divorce.

7 On 26th July, 2006, the applicant applied for Irish citizenship using the...