Ezeani and Another v Minister for Justice, Equality and Law Reform
 IEHC 478
THE HIGH COURT
Administrative law - Post-nuptial citizenship application - Judicial review - Inquisitorial process - Fair procedures - Burden of proof - Bias - Whether the applicants were afforded fair procedures
The applicants applied inter alia for an order of certiorari by way of judicial review quashing the decision of the respondent to refuse the first applicant post-nuptial citizenship. The respondent refused the application on the grounds that the applicants were not living together as husband and wife. The applicants contended that the respondent failed to determine their rights in a manner that complied with their constitutional rights.
Held by Hanna J. in allowing the application that the applicants were not afforded fair procedures. Serious allegations were made and the applicants had a legal and constitutional right to properly confront those allegations.
EX TEMPORE JUDGMENT of Mr. Justice Hanna delivered on the 11th day of October, 2005
I'd ask the parties to note that this is an ex tempore judgment. However, the services of a stenographer have been provided should either of the parties require the judgment in transcript form.
The applicants, Matthew Ezeani and Elizabeth Allen, are applying for, among other things, an order of certiorari by way of judicial review, quashing the decision of the Minister for Justice, Equality and Law Reform to refuse Mr. Ezeani post-nuptial citizenship - they are a married couple. Mr. Ezeani is a Nigerian national currently residing in the State. He was resident in London for a period of time working as a trainee solicitor. He met Ms. Allen, his wife, in or around March, 1998 and they married on the 3rd March,1999. She is a citizen of Ireland. Initially their plan was that he would relocate to Ireland to be with his wife and continue his legal training there. He applied for and was granted a resident's permit for that purpose and the pair live together in Clara, Co. Offaly.
By reason of the rules and regulations pertaining to the legal profession in this jurisdiction Mr. Ezeani was unable to complete his training and was obliged to return to London in order that he may finish it there. According to his affidavit Mr. Ezeani commuted between London and Clara between September,2000 and January,2002, whereupon he qualified as a solicitor. He qualified as a solicitor in Ireland in March,2002 and was enrolled into the Law Society of Ireland. In the meantime he was further registered as residing with his wife by the local immigration registration officer on an annual basis until February,2004.
The applicants made a declaration of post-nuptial citizenship in April,2002, pursuant to s. 8 of the Irish Nationality and Citizenship Act, 1956, as amended. Mr. Ezeani who had setup a law firm based in Dublin was required to move up to Dublin because according to affidavit his practice began to grow and the commute became impossible. At all times the applicants have maintained that they are living together as husband and wife. The respondents on the other hand assert that at the time of the declaration on the 29th April, 2002, the applicants were not living together as husband and wife, their application was thus refused.
The applicants have obtained leave to bring judicial review proceedings by order of Ó Caoimh J. dated 20th May, 2004. In the making of this application and subsequently thereto and in the course of these proceedings the parties have generated multiple affidavits and hundreds of pages of documentation. Nevertheless, it is important that we focus on events between the making of the post-nuptial citizenship declaration on 29th April, 2002 and the decision handed down by the Minister's lawful agent on the 14th November, 2003. It is upon that latter decision that the applicants have been given leave to seek to quash by way of certiorari and also to seek a declaration that refusal of the first named applicant's declaration of post-nuptial citizenship was unlawful and ultra vires. The applicants were also given leave to seek a declaration as to the first named applicant's entitlement to post-nuptial citizenship, the grounds upon which leave to seek such relief were set out in the order of Mr. Justice Ó Caoimh and I will not repeat them here.
The first named applicant made a declaration pursuant to the Irish Nationality and Citizenship Act, 1956, on the 29th April, 2002. The application was made before one Thomas F. Farrell, a solicitor of Tullamore in Co. Offaly, to whom the first applicant was identified by the second applicant. The first applicant made an appropriate affidavit, again before Mr. Farrell, and he declared that he had personally known the second applicant for twenty-five years. Thereafter a very substantial body of communication by way of correspondence and a telephone conversation built up between Mr. Ezeani and the citizenship section of the first named respondent - chiefly in the person of one Mr. Gerry McConnell and members of An Garda Siochana.
Running parallel to a citizenship application it appears that Mr. Ezeani was alleging difficulties amounting at times to what he alleged to be racial abuse and interference with his lawful function as a solicitor both in connection with his work as a specialist in immigration law and also in connection with his application for citizenship. I am informed that there are separate proceedings before this court dealing with, if I may so put it, Mr. Ezeani's professional relationship with members of An Garda Siochana concerned with immigration and as such I do not intend to pass any comment upon the veracity or otherwise of Mr. Ezeani's allegations, that is for another day in another court. As such these allegations have no bearing on Mr.Ezeani's application for citizenship insofar as he alleges inter alia bias on the part of the first respondent in making the decision which the first applicant seeks to impugn. Mr. McConnell forwarded correspondence and material relevant to Mr. Ezeani's complaints. His purported attitude to such complaints were that these were operational matters for An Garda Siochana and not for him. He admitted that he did cause An Garda Siochana, when deemed necessary, to investigate applications for citizenship from time to time. Mr. Crystal, senior counsel on behalf of Mr. Ezeani, urged that after Mr. Ezeani's first letter of complaint to An Garda Siochana, 21st October, 2002, the evidence revealed a change of sorts in the attitude being adopted by the first named respondent's department. This is the root of the bias of which he complains. It would be impractical to set out the full extent of the correspondence and other communications by way of telephone which passed between the parties hereto. It is extensive and bound up with Mr. Ezeani's parallel difficulties, as he perceives them, with An Garda Siochana and with which we are not concerned here save solely insofar as they impinge onto the question of bias.
What we are concerned with here is whether or not the applicant was afforded fair procedures and a consideration of material available to Mr. McConnell when he made his decision. The clear focus of the inquiry for the first named respondent was whether or not the applicants were living together as man and wife, in particular on the 28th April, 2002, the date when the application for citizenship was formally made. In the decision of 14th November, 2003, Mr. McConnell came to the conclusion that the applicants were not so living together. He set out the reasons for that decision in the said letter. These are enumerated and a number will be referred to subsequently in setting out the applicant's response.
"The reasons for my decision in this matter are as follows:"
1. In June2002 inquiries with the local Gardai of Clara revealed that Ms. Allen was living with Billy Fitzpatrick at that time some six weeks after the lodgment of your declaration. The Clara gardaí were aware that Ms. Allen had married a Nigerian national, but were of the opinion that person was not residing at the address in Clara.
2. On four occasions between September and November2002 members of An Garda Siochana made unannounced visits to 30 Silver Dale Estate, Clara, Co. Offaly - you were not present on any occasion.
3. On 29th September, 2002, the then immigration officer attached to Tullamore Garda Station formed the opinion, having spoken to Ms. Elizabeth Allen, that yourself and Ms. Allen were not living together as husband and wife.
4. During the course of an interview with members of An Garda Siochana on the 17th November, 2002, Ms. Elizabeth Allen stated that you and she had lived together on and off for about a year after your marriage. She further stated that you lived in Clara for about three months in 1999 and then went to the UK for six weeks after which you lived mainly in Dublin setting up your business. She went on to state that you 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 gardaí on 28th August, 2002, was 30 Silver Dale, Clara.
5. Your two children, Christian and Cecilia-Sinead who commenced school in Dublin in September and...
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