G.K.N. v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Colm Mac Eochaidh
• Judgment Date: 22 October 2014
• Neutral Citation: [2014] IEHC 478
• Court: High Court
• Date: 22 October 2014

N (GK) v Min for Justice

JUDICIAL REVIEW

IN THE MATTER OF THE IRISH NATIONALITY AND CITIZENSHIP ACT 1956 (AS AMENDED) AND

IN THE MATTER OF APPLICATION FOR JUDICIAL REVIEW

BETWEEN

G. K. N.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2014] IEHC 478

[No. 705 J.R./2013]

THE HIGH COURT

Judicial Review – Minster of Justice and Equality – Naturalisation – Criminal Conviction – Good Character – Procedure – Minister”s Discretion

This case involved an application for judicial review of the Minister of Justice and Equality, the respondents”, decision refusing the applicant's application for naturalisation. The applicant is married to an Irish citizen and is the father of two Irish citizen children. The applicant made three previous applications for naturalisation that were made in 2003, 2008 and 2009, and which were refused, notably the applicant had and still has a criminal conviction against his name. The applicant sought to have the decision by the respondents, refusing naturalization, to be quashed. The issue came before Mac Eochaidh J. in the High Court.

Mac Eochaidh J. analysed the procedural decision made by the respondents and the submissions made by both parties. The applicant argues the respondent failed to consider the fact that the episode which resulted in a criminal conviction was a very minor incident involving the grazing of a vehicle by the applicant's vehicle. In addition, it is said that critical facts were not weighed by the Minister, including the fact that the applicant was married, that he had two Irish children, the date of his refugee status and that he was tax compliant. Mac Eochaidh J. examined the documents relied upon by the Minister, which he found to be merely a very short summary of the application and recommendation. Mac Eochaidh J. concluded that the documents before the Minister did not indicate that the injury in this instance was not to a person, but to a vehicle. Neither did the document indicate that the injury was of a very minor nature involving only the grazing of the vehicle in question. In addition, the recommendation contained an ambiguous statement which asserted the serious nature of the offence. Mac Eochaidh J. applying Hiri v Secretary of State for the Home Department focused on not only criminal convictions but also the weight of good character of the defendant. Eochaidh J. decided that the incident could not be sufficient to negate the good character that the State has required to be established by an applicant. Eochaidh J. stated that given that I have decided that the minor nature of the: events had not been drawn to the Minister's attention, it would be meaningless to determine the argument as to rationality which assumes that the Minister was aware that the incident in question was allegedly very minor in nature. The respondents relied on Tabi v. The Minister for Justice, Equality and Law Reform to justify their decision making in the naturalization application, however Mac Eochaidh J. rejected this test and reiterated that in cases such as this a full and fair description of the facts relating to the applicant's character is necessary. Mac Eochaidh J ruled that the decision of the Minister refusing naturalisation be quashed.

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S16

ROAD TRAFFIC ACT 1961 S106

R (HIRI) v SECRETARY OF STATE FOR THE HOME DEPT 2014 ACD 97 2014 AER (D) 165 (FEB) 2014 EWHC 254 (ADMIN)

TABI v MIN FOR JUSTICE UNREP COOKE 16.4.2010 2010/49/12241 2010 IEHC 109

1 JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 22nd day of October 2014

2 1. This is an application for judicial review of the respondent's decision of 2 ^nd July 2013, refusing the applicant's application for naturalisation.

3 2. The applicant was declared to be a refugee on 27 ^th November 2002. He is married to an Irish citizen and is the father of two Irish citizen children.

4 3. Three previous applications for naturalisation were made in 2003, 2008 and 2009, which were refused. The present application was made on 1 ^st September 2010. The letter submitting the application for naturalisation stated:

"We wish to draw to your attention that the applicant was in a minor road traffic incident, and as a result of same was disqualified from driving for a period of two months in January 2007. The applicant has had a clean driving history since them and has not come to the gardaí's attention in respect of any other matters."

5 4. The application form for naturalisation was accompanied by a Tax Clearance Certificate, a Bank Statement, proof of refugee status, and a Certificate of Marriage (from the Republic of Kenya).

6 5. On 14 ^th August 2012, the applicant's solicitors asked to be updated in relation to the application. On 12 ^th December 2012, the respondent's Immigration Service (INIS) wrote to the applicant's solicitor, saying:

"I would be obliged if he could confirm that the fine of €300 (hit and run) imposed on your client at Galway Circuit Court on 23/01/2007 has been paid and forward receipt of payment to confirm this."

7 With reference to the incident recorded by the gardaí on the above date, please; provide further information on same."

8 6. Other information was also sought.

9 7. The applicant's (new) solicitors replied to the respondent on 9 ^th January 2013, enclosing a receipt from Galway District Court confirming payment of a fine of €300, and saying:

"With respect to the hit and run incident on 23 ^rd January 2007, this occurred when our client grazed a parked Jeep in his own motor vehicle. This occurred at 11.00pm at night. Our client stopped and tried to locate the owner of the Jeep. However, there was no-one in the vicinity and after a while he drove off."

10 The incident was reported to the gardaí and our client was subsequently arrested and convicted of hit and run and leaving the scene of the accident. He was fined €300 in respect of both of these offences which he duly paid and there was €700 compensation to effect repairs to the damaged vehicle which was also paid, and all these are demonstrated by the receipt from the District Court."

11 8. On 2 ^nd July 2013, the respondent wrote to the applicant's solicitors saying:

"The Minister, having considered your application and the offences referred to in the attached report, has decided not to grant you a Certificate of Naturalisation."

12 A copy of the submission that was prepared for the Minister, with his decision annotated thereon, is enclosed for your information."

13 9. The submission referred to in the letter of 2 ^nd July 2013 is very short. In its operative part, it says as follows:

"Comments"

14 This applicant has come to the adverse attention of the gardaí, see report attached. The resulting fine has been paid. He has two Irish-born children and is a self-employed taxi driver. Given the serious nature of the offence, I would not recommend this applicant for a Certificate of Naturalisation."

15 The submission bears the initials of the Minister with the handwritten annotation 'Refuse App'.

16 10. The garda report attached to the submission is also very short. It records that on 23 ^rd January 2007, at Galway Circuit Court, an offence of "Hit and Run (Failing To Stop)" resulted in a fine of €300 and "Disqualification Order Consequential 2Mths" and it records "Hit and Run (Failing To Remain At Scene)" resulting in "Fine €300, Compensation €700".

Statutory Provisions

17 11. Section 15 (as amended) of the Irish Nationality and Citizenship Act, 1956 provides that on an application for naturalisation, "the Minister may, in his absolute discretion, grant the application, if satisfied that the applicant … (b)…is of good character".

18 12. Section 16 of the Act, as amended, provides, that the Minister, in his absolute discretion, grant a Certificate for Naturalisation, notwithstanding that the conditions for naturalisation (established by s. 15) are not...