Damache v The Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 10 February 2021
• Neutral Citation: [2020] IESC 63
• Date: 14 October 2020
• Court: Supreme Court
• Docket Number: Appeal No: S:AP:IE:2019:000141

BETWEEN:

ALI CHARAF DAMACHE

APPELLANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

AMICUS CURIAE

[2020] IESC 63

Clarke C.J.

MacMenamin J.

Dunne J.

Charleton J.

O'Malley J.

Appeal No: S:AP:IE:2019:000141

THE SUPREME COURT

Judicial review – Revocation of citizenship – Irish Nationality and Citizenship Act 1956 s. 19 – Appellant seeking an order prohibiting the respondent from revoking his citizenship – Whether s. 19 of the Irish Nationality and Citizenship Act 1956 is unconstitutional

Facts: The appellant, Mr Damache, filed judicial review proceedings in which he sought, inter alia, an order of certiorari of the notice of the intention of the first respondent, the Minister for Justice and Equality, to revoke his citizenship, an order prohibiting the respondent from revoking his citizenship and a declaration that s. 19 of the Irish Nationality and Citizenship Act 1956 is unconstitutional and incompatible with the State’s obligations under Union Law and under Arts. 6 and 13 of the ECHR. The matter came before the High Court, where Humphreys J refused the relief sought but ordered a stay on the revocation. The appellant appealed to the Supreme Court, contending that s. 19 of the 1956 Act is unconstitutional on the basis of his argument that only the judiciary can legally revoke a person’s citizenship and that the revocation of citizenship cannot be an administrative power. The reason the appellant advanced for the latter argument was that the revocation could not be fairly ‘adjudicated’ upon by the respondent because he was not a disinterested party by virtue of the fact that he was seeking that very revocation. The appellant argued that this violates the principle contained in the maxim nemo iudex in causa sua, and that on that basis the respondent could not exercise that power.

Held by Dunne J that the issue with s. 19 comes from the fact that the process provided for does not provide the procedural safeguards required to meet the high standards of natural justice applicable to a person facing such severe consequences as were at issue in these proceedings; in particular, an individual facing the prospect of revocation of a Certificate of Naturalisation must be entitled to a process which provides minimum procedural safeguards including an independent and impartial decision-maker. In the circumstances, Dunne J concluded that s. 19 does not meet the high standards of natural justice required and is therefore invalid having regard to the provisions of the Constitution.

Dunne J held that the appeal from the decision of the High Court would be allowed.

Appeal allowed.

Judgment of Ms. Justice Dunne delivered the 14th day of October 2020

Background

1 This appeal relates to s. 19 of the Irish Nationality and Citizenship Act, 1956 (hereinafter “the Act of 1956”) and the procedure to revoke Irish citizenship. At the heart of the appellant's case is the contention that s. 19 of the Act of 1956 is a category of power that can only be exercised lawfully by the courts. The appellant (hereinafter referred to as “the appellant” or “Mr. Damache”) argues that the power to revoke citizenship falls outside the saving provisions in Art. 37 of the Constitution, and that, as a result, any conferral onto the executive of such power is unconstitutional.

2 The circumstances in which this issue came to light concern a situation in which the first named respondent (the Minister) formed an intention to revoke the citizenship of the appellant. The appellant was born in Algeria and he is an Algerian national by birth. He came to Ireland in July, 2000, claimed asylum and following an unsuccessful appeal to the Refugee Appeals Tribunal, was informed by the Minister by letter of the 3rd December 2002 that his application for asylum was refused. On the 12th December 2002, the appellant married an Irish citizen by birth. He applied for naturalisation on the 26th July 2006 on the basis of his marriage and became naturalised as an Irish citizen pursuant to s. 17 of the Irish Nationality and Citizenship Act, 1956 on the 3rd November, 2008 when he made a declaration of fidelity to the State in the District Court. He was furnished with a Certificate of Naturalisation dated the 27th November 2008 which was transmitted to him by letter dated the 1st December 2008, a letter which drew attention to the terms of s.19 of the Act of 1956 and advised that there was a power to revoke the Certificate of Naturalisation on the grounds set out in s. 19.

3 It transpired that the appellant while resident in Ireland was involved in terrorism related activities and ultimately, following his extradition to the United States, in July, 2018, he pleaded guilty before a federal court in Philadelphia, United States to having conspired to materially assist an Islamist terrorist conspiracy. He was then sentenced in October, 2018 to a term of 15 years imprisonment and as a result of that the respondent informed the appellant of his intention to revoke his citizenship on 18th October 2018, by statutory notice in terms of s 19(2) of the Act of 1956.

4 S. 19(2) and (3) of the 1956 Act sets out the process to be followed after such an intention to revoke citizenship has been formed by the Minister. Generally, if the intention to revoke is opposed by a person subject to the intended revocation, a committee of inquiry will consider the case. The committee then issues a recommendation upon which the Minister makes his final decision. In this case however, the process has not proceeded beyond the respondent informing the appellant of his intention to revoke his citizenship.

5 After becoming aware of the respondent's intention, the appellant filed judicial review proceedings in which he sought, inter alia, an order of certiorari of the notice of the respondent's intention to revoke his citizenship, an order prohibiting the respondent from revoking his citizenship and a declaration that s. 19 of the Act of 1956 is unconstitutional and incompatible with the State's obligations under Union Law and under Arts. 6 and 13 of the ECHR. The matter came before the High Court, where Humphreys J. refused the relief sought but ordered a stay on the revocation.

6 As mentioned, this appeal is concerned with the contention by the appellant that s. 19 of the Act of 1956 is unconstitutional. The basis of this contention is the appellant's argument that only the judiciary can legally revoke a person's citizenship and that the revocation of citizenship cannot be an administrative power. The reason the appellant advances for the latter argument is that the revocation cannot be fairly ‘adjudicated’ upon by the respondent because he is not a disinterested party by virtue of the fact that he is seeking that very revocation. The appellant argues that this violates the principle contained in the maxim nemo iudex in causa sua, and that on that basis the respondent cannot exercise that power.

7 In making an application for leave to appeal to this Court in circumstances where leave was sought directly from the High Court (a “leapfrog” appeal), the appellant argued that this case raises issues of general public importance and an appeal would be in the interests of justice, and also that exceptional circumstances exist justifying the leapfrog appeal. The appellant argued this case would inter alia provide clarity on the question of whether a particular power is an administrative, executive function or a judicial function. The appellant also contended that some conflicting authorities exist on this point and a number of other cases dealing with revocation of citizenship would stand to benefit from clarity from this Court. Although the respondent contended that the appellant may be premature in seeking relief (given that the Minister has not yet given a final decision in this matter), he only opposed the application in part and the Determination of this Court notes that in light of the effect on other revocation matters, the respondent appeared to concede that it would be in the interests of justice that the constitutionality of s. 19 be authoritatively settled. Other issues were brought to the attention of the Court and these are more fully set out in the Determination but it suffices to say that in all the circumstances the Constitutional threshold for a leapfrog appeal was met, with the Court placing some reliance on the position of the respondent that clarity would be desirable.

8 It is worth noting that the Determination made it very clear that the focus of this appeal should be the arguments advanced by the appellant “… that challenge the general constitutionality of the power conferred by s. 19 as it would be exercised in every case that comes before the respondent. In other words, the applicant here launches a systemic attack upon the section.” It is therefore the broader question of the constitutionality of s. 19 which formed the basis of this Court granting leave to appeal.

The High Court Judgment

9 At para 7 of the judgment, Humphreys J. sets out the details of the appellant's naturalisation and they are repeated herein because they are helpful in understanding the precise circumstances in which the Minister formed his intention to revoke the citizenship of the appellant. Humphreys J. explained that on 26th July, 2006, the appellant applied for Irish citizenship using the appropriate form for naturalisation known as Form 8, prescribed by s. 17 of the Irish Nationality and Citizenship Act 1956 and the Irish Nationality and Citizenship Regulations 2002 (S.I. No. 567 of 2002). The application was made on the basis of the appellant being married to an Irish citizen. The process of naturalisation requires an applicant to make a declaration of fidelity to the nation and loyalty to the State as provided for by s. 15(1)(e) of the 1956 Act...