H (L G) v Min for Justice & AG

JurisdictionIreland
JudgeMr. Justice John Edwards
Judgment Date30 January 2009
Neutral Citation[2009] IEHC 78
CourtHigh Court
Date30 January 2009

[2009] IEHC 78

THE HIGH COURT

[No. 1438J.R./2007]
H (L G) v Min for Justice & AG

BETWEEN

L. G. H.
APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15

TESCO STORES LTD v SECRETARY OF STATE FOR THE ENVIRONMENT 1995 1 WLR 759 1995 2 AER 636 1995 70 P & CR 184

MISHRA v MIN FOR JUSTICE 1996 1 IR 189 1996/13/4227

STATE (KUGAN & ANOR) v O'ROURKE (FITZGIBBON ST GARDA STATION) 1985 IR 658 1986 ILRM 95 1985/8/2405

SHUM v IRELAND & AG 1986 ILRM 593 1986/4/1484

IMMIGRATION

Naturalisation

Statutory requirements - Whether decision irrational - Whether irrelevant considerations taken into account - Absolute discretion of Minister - Whether reasons for refusal should have been given in circumstances despite no general requirement to give reasons - Whether Minister acted judicially in exercise of absolute discretion - Whether Minister incorrect to have regard to character of applicants' sons in consideration of application for naturalisation - Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759, Misha v Minister for Justice [1996] 1 ILRM 189, State (Keegan) v O'Rourke [1986] ILRM 95 and Pok Sun Shum v Ireland [1986] ILRM 3 considered - Irish Nationality and Citizenship Act of 1956 (No 26), s 15 - Certiorari granted, matter remitted for reconsideration (2007/1438JR - Edwards J - 30/1/2009) [2009] IEHC 78

H (LG) v Minister for Justice Equality and Law Reform

Facts: the applicant was granted asylum by the State along with her sons. She later applied for naturalisation. That application was refused by the respondent without giving explicit reasons therefor. However, attached to the refusal letter was a document in which "other relevant material" pertaining to the application was cited by the respondent, including a reference to the fact that the applicant's sons had criminal convictions for minor offences. The refusal letter also stated that the applicant could re-apply for naturalisation but that she should have due regard in any new application to the reasons for the refusal on this occasion. The applicant was granted leave to judicially review that refusal on the grounds that the respondent had taken irrelevant matter into consideration in refusing the application and that the decision was irrational.

Held by Mr Justice Edwards in quashing the refusal of the respondent to grant the applicant a certificate of naturalisation that, while the respondent had absolute discretion in considering whether to grant a certificate of naturalisation on application to him therefor, he had to act judicially in the exercise of that discretion.

That it was offensive to notions of justice that a person could be prejudiced on account of her family associations, in circumstances where the person concerned was of acknowledged good character, and the mere fact that the applicant was related to persons who had acquired convictions was not something to which any consideration could legitimately be given. The respondent accordingly was incorrect to have regard to the character of the applicant's sons when making his decision.

That, whilst the respondent was not generally obliged to give reasons for his decisions on naturalisation applications, in the particular circumstances of the case he ought to have given reasons having regard to the fact that he had issued a letter to the applicant suggesting that she might re-apply but that she should have due regard in any new application to the reasons for his refusal on that occasion.

Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759, Mischa v Minister for Justice, Equality & Law Reform [1996] 1 ILRM 189, The State (Keegan) v O'Rourke [1986] 1 ILRM 95 and Pok Sun Shum v Ireland [1986] ILRM 3 considered.

Reporter: P.C.

1

JUDGMENT of Mr. Justice John Edwards delivered the 30th day of January, 2009

2

The applicant in this matter is a Chinese national who arrived in the State on or about the 30th March 2000, as a programme refugee. It is understood that sometime in 2005, the applicant applied to the first named respondent for a Certificate of Naturalisation; that is, to become an Irish citizen.

3

The application was made pursuant to s.15 of the Irish Nationality and Citizenship Act of 1956 as amended. It took some time to process her application but, eventually, she received a decision communicated to her in a letter dated the 18th May, 2007 from the first named respondent.

4

That letter was exhibited, and I now quote the relevant portion thereof:

5

I am directed by the Minister for Justice, Equality and Law Reform, to refer to your application for a Certificate of Naturalisation. The Minister has considered your application under the provisions of the Irish Nationality and Citizenship Acts of 1956 to 1986, and has decided not to grant a Certificate of Naturalisation. A copy of the submission that was prepared for the Minister for his decision thereof is enclosed for your information. In reaching this decision the Minister has exercised his absolute discretion as provided by the Irish Nationality & Citizenship Acts, 1956 to 1986. There is no appeal process provided under this legislation. However, you should be aware that you may reapply for the grant of a Certificate of Naturalisation at any time.

6

When considering making such a reapplication, you should give due regard to the reasons for refusal given in the attached submission. Having said this, any further application will be considered, taking into account all statutory proofs and conditions applicable at para. 18."

7

The document accompanying that letter and described as a submission, is a two-page document under the signature of a civil servant in the citizenship section of the Minister's department. It is dated the 23rd April 2007, and commences by setting out the personal details of the applicant, including her name, address, date of birth, nationality, martial status and the nationality of her spouse. It also includes the details of her children and the number of her children. It provides for the notation on the document of any representations made in respect of the application; in this instance there were none. The document then goes on to state that the Irish Nationality & Citizenship Act, 1956, as amended in 1986 and 2001, provides that the Minister may, in his absolute discretion, with the words "absolute discretion" underlined, grant a Certificate of Naturalisation, if satisfied that the applicant fulfils the following conditions:

8

a A. Is of full age?

9

In this instance, the answer to that question is recorded "yes".

10

b B. Is of good character?

11

In this instance the answer to that question is recorded as "yes".

12

c C. Fulfils the statutory residency requirement?

13

In this instance the answer to that question is recorded as "yes".

14

d D. Intends in good faith to continue to reside in the State after naturalisation?

15

In this instance the answer to that question is recorded as "yes".

16

The document concludes with a section headed "Other Relevant Information," and in this section the following material is recorded. It states, quote:

"Mrs. L.G.H. has not come to the adverse attention of the Garda Siochana. A file is attached relating...

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