Habte v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Murray,Ms Justice Power
• Judgment Date: 05 February 2020
• Neutral Citation: [2020] IECA 22
• Date: 05 February 2020
• Court: Court of Appeal (Ireland)
• Docket Number: [2019/108]

BETWEEN

MAHELET GETYE HABTE

APPLICANT/RESPONDENT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT/APPELLANT

BETWEEN

MAHELET GETYE HABTE

APPLICANT/APPELLANT

AND

MINISTER FOR JUSTICE AND EQUALITY

IRELAND

ATTORNEY GENERAL

RESPONDENTS

[2020] IECA 22

McGovern J.

Power J.

Murray J.

[2019/108]

[2019/113]

THE COURT OF APPEAL

Judicial review – Naturalisation – Declaratory relief – Applicant seeking judicial review – Whether the applicant was entitled to declaratory relief

Facts: The applicant, Ms Habte, in the first judicial review proceedings, sought an order declaring her correct date of birth to be 4th October 1982, together with an order of certiorari quashing the refusal of the respondent, the Minister for Justice and Equality, to amend her certificate of naturalisation to insert that date of birth. An order of mandamus requiring him to do so, was also sought. The essential grounds on which this relief was claimed were that the Minister had failed to comply with the provisions of the Irish Citizenship and Nationality Act 1956 and Regulations made thereunder; that he acted unlawfully in applying a fixed policy against amending certificates of naturalisation once they had issued; that by refusing to amend the certificate on the basis of a blanket policy and having regard to the nature of the error, he acted irrationally; and that he denied the applicant fair procedures by failing to consider her application to amend the certificate on an individualised basis. In the second proceedings the principal relief sought was an order of certiorari quashing ‘the decision to form an intention to revoke’ the applicant’s certificate of naturalisation as communicated in the letter to her of 22nd June 2017. That relief was claimed because it was said that there were not sufficient facts on the basis of which the Minister could have concluded that the certificate was procured by misrepresentation, that in commencing the revocation procedure the Minister had acted irrationally, and that the Minister had exercised his powers for an improper purpose and in bad faith. Declaratory relief was also sought to the effect that s. 19 of the Act was invalid having regard to the provisions of the Constitution and European law. The High Court order made in the first proceedings was that ‘the Minister do consider if appropriate in the light of any report of the committee of inquiry whether the applicant’s certificate of naturalisation should be amended in the sense of being cancelled and reissued with the correct date of birth’. In the second proceedings, the reliefs sought by the applicant were refused, without prejudice to the applicant’s right to raise any point in the event of a challenge to the ultimate decision of the Minister.

Held by the Court of Appeal (Murray J) that the applicant’s essential contention in the first proceedings – that the Minister is empowered to cancel a certificate of naturalisation and issue a new certificate so as to correct an error on that certificate – was well placed and that the applicant was entitled to a declaration to that effect. Murray J held that it was not appropriate to grant to the applicant an order declaring her date of birth or quashing the refusal of the respondent to amend the certificate of naturalisation, or the other declaratory relief sought in the first proceedings. Murray J held that the applicant had not made out a basis for any of the relief sought in the second proceedings.

Murray J held that the Court would make an order dismissing both appeals, but would make in addition to the order made by Humphreys J in the first set of proceedings, an order as follows: “A Declaration that pursuant to the provisions of the Irish Nationality and Citizenship Act 1956 as amended, the respondent is empowered to cancel a certificate of naturalisation and issue a new such certificate where satisfied that the former contains a material error of fact.”

Appeals dismissed.

JUDGMENT of Mr. Justice Murray delivered on the 5th day of February 2020

I THE ISSUES

1 The applicant was born in Ethiopia. She is a naturalised Irish Citizen. The certificate of naturalisation as issued to her on 23rd January 2015 records her date of birth as 24th September 1975. This reflects the date she provided when she applied for naturalisation. For reasons more fully explained below, she believes this date to be wrong. She has requested the first named respondent (‘the Minister’) to correct the certificate by the insertion of what she says she now believes to be her correct date of birth – 4th October 1982. The Minister has adopted the position that pursuant to the relevant legislation - the Irish Citizenship and Nationality Act 1956 as amended, (‘the Act’) – he does not have the power to amend the certificate in this way. His consequent refusal to make the amendment sought by the applicant prompted the first set of proceedings giving rise to this appeal, in which the Minister was the sole respondent (2017 126 JR). In those proceedings, the applicant sought an order declaring her date of birth to be 4th October 1982, together with orders requiring the provision to her by the Minister of a true and accurate certificate of naturalisation, and an order of certiorari quashing the decision of the Respondent refusing to amend her certificate of naturalisation. She also sought with other related declaratory relief. In that first action, the essential argument advanced by the applicant was that the Minister did enjoy such a power of amendment, and that he had acted unlawfully in refusing to exercise it.

2 While declining to make a declaration as to the applicant's date of birth, Humphreys J. agreed with the applicant's contention that the Minister had a power – in effect – to amend a certificate of naturalisation. He adopted the view that this could be done by the cancellation of the existing certificate and the immediate re-issue thereof with the correct date of birth. He made certain orders directing how the Minister should consider the exercise of that power. The Minister has appealed that determination.

3 Following the institution of the first action, the Minister proceeded to initiate the process described in section 19 of the Act for the revocation of the applicant's certificate of naturalisation (‘the section 19 procedure’). The section 19 procedure is operative inter alia where a certificate of naturalisation has been procured by misrepresentation – whether fraudulent or innocent. It is the position of the Minister that this is the only course of action open to him when it comes to his attention that a certificate of naturalisation has been issued based upon and recording incorrect identifying information, at least where that information originated with the applicant for the certificate.

4 The initiation of that process prompted the second set of proceedings (2017 569 JR). In those proceedings, in which the Minister, Ireland and the Attorney General were the respondents, the applicant contended that the commencement of the section 19 procedure was unlawful on a variety of grounds. It was also contended that section 19(1)(a) of the Act is invalid having regard to the provisions of the Constitution. Humphreys J. rejected these arguments and refused any of the relief claimed in those proceedings. He did so without prejudice to the applicant's right to raise any point in the event of a challenge being brought to the ultimate decision of the Minister at the conclusion of that process. The applicant has appealed against this decision. The respondents have cross appealed parts of the High Court judgment which identified features of the events giving rise to the revocation process which the trial Judge characterised as favourable to the applicant.

5 While a wide range of reliefs were claimed, and issues raised, in the course of these appeals, it appears to me that the essential questions across both cases (resolved in a single judgment [2019] IEHC 47) were three-fold. First, whether it is appropriate to imply into the Act a power on the part of the Minister to amend a certificate of naturalisation. This issue, as it was addressed in the High Court, presented the question of whether the applicant enjoyed any constitutional, European Convention on Human Rights or other European law-based right which grounded an entitlement to have the personal details on her certificate of naturalisation correctly recorded. Second, whether in the circumstances that presented themselves in this case it was appropriate for the Court to grant relief by way of Judicial Review in respect of the initiation of a process that might lead to revocation of a certificate of naturalisation pursuant to section 19 of the Act. Third, whether the Minister acted unlawfully in initiating that procedure because (a) there was no evidential basis on which he could conclude that it was appropriate so to do, (b) because he failed to afford the applicant fair procedures before so doing, (c) because he initiated the procedure in the mistaken belief that he did not have the power to amend the certificate, or (d) because section 19(1)(a) of the Act is invalid having regard to the provisions of the Constitution.

II BACKGROUND

6 Naturalisation is applied for by completion and submission of a form known as the Form 8. The form is prescribed by the Irish Nationality and Citizenship Regulations SI 569 of 2011. The contents of the Form 8 must be attested to by the applicant in an accompanying statutory declaration. The form is headed with a warning that the information to be supplied must be true and correct. It advises that the provision of false or misleading information on the form may constitute an offence, and that the certificate may be revoked if procured by fraud, misrepresentation (innocent or fraudulent) or concealment of material facts or circumstances. The information notes to the form advise applicants...