Ezeani & Allen v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly
• Judgment Date: 12 July 2011
• Neutral Citation: [2011] IESC 23
• Docket Number: Appeal Number: 38/2006
• Court: Supreme Court
• Date: 12 July 2011

Ezeani & Allen v Min for Justice & Ors

JUDICIAL REVIEW

MATTHEW EZEANI ELIZABETH ALLEN

Applicants/Respondents

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM COMMISSIONER OF AN GARDA SÍOCHÁNA ATTORNEY-GENERAL AND IRELAND

Respondents/Appellants

[2011] IESC 23

Denham J.

Hardiman J.

Fennelly J.

Appeal Number: 38/2006

THE SUPREME COURT

IMMIGRATION LAW

Citizenship

Acquisition of citizenship on marriage - Declaration that couple living together as husband and wife - Whether acquisition of citizenship automatic on presentation of declaration - Administrative procedure - Fair procedures - Whether applicants given reasonable notice of matters of concern to first respondent - Whether first respondent obliged to offer applicants opportunity to cross examine witnesses - Kelly v Ireland [1996] 3 IR 537; Akram v Minister for Justice (Unrep, Finnegan J, 21/12/1999) approved - In re Haughey [1971] IR 217; Flanagan v University College Dublin [1988] IR 724 distinguished - Irish Nationality and Citizenship Act 1956 (No 26), s 8 - Irish Nationality and Citizenship Act 1986 (No 23), s 3 - Appeal allowed (28/2006 - SC - 12/7/2011) [2011] IESC 23

Ezeani v Minister for Justice, Equality and Law Reform

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S8

IRISH NATIONALITY & CITIZENSHIP ACT 1986 S3

IRISH NATIONALITY & CITIZENSHIP ACT 2001 S4

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S8(3)

KELLY v IRELAND 1996 3 IR 537

AKRAM v MIN FOR JUSTICE UNREP FINNEGAN 21.12.1999 (NO TRANSCRIPT AVAILABLE)

AKRAM v MIN FOR JUSTICE 2004 1 IR 452

HAUGHEY, IN RE 1971 1 IR 217

POK SUN SHUN v IRELAND 1986 ILRM 599

FLANAGAN v UNIVERSITY COLLEGE DUBLIN 1988 IR 724

Mr. Justice Fennelly

Judgment delivered by Fennelly J. [nem diss]

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 Section 4 of the Act of 2001 repealed the procedure subject to a transitional provision for existing cases.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 anex tempore judgment of 11^th 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:

5 (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-

6 a (a)the marriage is subsisting at the date of lodgment of the declaration, and

7 b (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.

8 c (2) A person who lodges a declaration under subsection (1) shall be an Irish citizen from the date of lodgment.

9 5. Sub-section 3 of the section is not relevant.

10 6. 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 3^rd March 1999.

11 7. On 28^th 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.

12 8. The first-named appellant applied to the Minister for Irish citizenship on the basis of that declaration on 15^th May 2002.

13 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 14^th 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 28^th 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.

14 10. The appellants applied, by way of judicial review, for an order of certiorari of the Minister's decision of 14^th November 2003, thus conveyed, and a declaration that the first-named appellant is entitled to a declaration of post-nuptial citizenship.

15 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:

16 1. the Minister acted ultra vires and committed other errors of law;

2. there was bias on behalf of the Minister;

17 3. the Minister infringed the constitutional rights of the appellants and in particular wrongly required them to attend separately for interview.

18 12. By order sated 20^th May 2004, the High Court (O'Caoimh J) granted leave to apply for judicial review on the grounds advanced.

19 13. The appellants claimed before the High Court that the Minister's decision was flawed because:

20 i) there was no, or no sufficient evidence before the Minister that the appellants were not living together as husband and wife;

21 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;

22 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;

23 iv) the Minister imposed an incorrect burden of proof.

24 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.

25 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.

26 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.

27 17. The Minister, in the form of Mr McConnell's letter of 14^th November 2003, gave the following reasons for his conclusion that the appellants were not living together as husband and wife:

28 (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;

29 (ii) On four occasions between September and November 2002, members of the Garda Síochána made unannounced visits to 30 Silverdale Estate, Clara Co Offaly. The appellant was not present on any occasion;

30 (iii) On 29^th September 2002, the then Immigration Officer attached to Tullamore Garda Station formed the opinion, having spoken to Ms Elizabeth Allen, that the appellant and Ms Allen were not living together as husband and wife;

31 (iv) During the course of an interview with members of the Garda Síochána on 17 November 2002, Ms Elizabeth Allen stated that she and the appellant had lived together on and off for about a year after the marriage. She further stated that the appellant lived in Clara for about 3 months in 1999 and then went to the UK for 6 weeks after which he lived mainly in Dublin setting up his business. She went on to state that he and she had not been living together as husband and wife and that she was in a relationship with another man, Billy Fitzpatrick. Mr Fitzpatrick's home address, as recorded by the Gardai on 28 August 2002, was 30 Silverdale, Clara;

32 (v) The appellant's two children, Christian and Cecilia (Chinenye), who commenced school in Dublin in September and October 2002, are...