Habte v The Minister for Justice and Equality ; Habte v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 04 February 2019
• Neutral Citation: [2019] IEHC 47
• Date: 04 February 2019
• Court: High Court
• Docket Number: [2017 No. 126 J.R.]

BETWEEN

MAHELET GETYE HABTE

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENT

AND

BETWEEN

MAHELET GETYE HABTE

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2019] IEHC 47

Humphreys J.

[2017 No. 126 J.R.]

[2017 No. 569 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Judicial Review – Asylum, Immigration and Nationality – Naturalisation – Applicant seeking judicial review of decision not to amend her certificate of naturalisation with the correct date of birth, and judicial review of proposal to revoke naturalisation – Whether error on the part of the applicant could give rise to an amendment of the certificate of naturalisation and whether there could be judicial review of a mere proposal

Facts: The appellant was born in Ethiopia and there was a discrepancy between the date of birth on her Ethiopian passport and her birth certificate. This was due to the use of the Ethiopian calendar, which is separate and distinct from the Gregorian calendar. The applicant applied for naturalisation as an Irish citizen and inserted her date of birth as it appeared in her Ethiopian passport. The applicant also enclosed a letter setting out the difference between the two calendars. Subsequently, the applicant sought to amend her certificate of naturalisation to reflect her date of birth as it appeared on her birth certificate. Her application to amend was refused and leave was granted for judicial review of this decision. The Department then notified the applicant that there was a proposal that her certificate of naturalisation be revoked. The applicant sought to amend the initial judicial review pleadings to challenge this decision. Leave was granted in the second judicial review proceedings.

Held by Humphreys J that the right to have one’s identity properly recorded by the State is a fundamental right protected as an unenumerated right in the Constitution, the ECHR, and the Charter on Fundamental rights in the EU. Humphreys J held that the Minister had jurisdiction to amend the certificate as provided by S.22 (3) of the Interpretation Act 2005 and that this power to amend was not impliedly excluded in the cases of mistakes made by the applicant. Humphreys J held that the question of whether to exercise the power to amend is a matter for the Minister provided lawful consideration is given to the application to amend. With respect to the first judicial review, Humphreys J provided that there be an order requiring the Minister to consider whether the applicant’s certificate be amended, i.e. cancelled and reissued with the correct date of birth.

In the second judicial review, Humphreys J held that it was a mere proposal, not an ultimate decision, and that the Court would only consider halting the continuation of such a proposal in exceptional circumstances. The proposal to revoke the applicant’s certificate of naturalisation was not ultra vires or motivated by an improper purpose. No exceptional circumstance had been established and therefore the matter was not ripe for judicial review. The appellant could make an application for judicial review under this heading once an ultimate decision was made. This relief was therefore refused without prejudice.

Relief granted in part and denied in part.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 4th day of February, 2019

1 Writing in October, 2017, John Stanley stated in Immigration and Citizenship Law (Dublin, 2017) p. 904 n. 155 that ‘ an online search of Iris Oifigiúil yields no indication that naturalisation has ever been revoked’. The present cases, heard together, therefore appear to be the first proceedings in which such a proposed revocation has given rise to litigation.

2 The subject matter of the case turns on interesting divergences between different calendars currently in use. The Gregorian calendar, being the one applicable in the State, is so universal internationally that one can overlook the fact that there are numerous other calendars used in other contexts and other places. Some background context will therefore be necessary.

3 While some calendars, such as the Hebrew, go back to the borders of pre-history, others are relatively modern. The Gregorian calendar has its origins in the Roman calendar, which came into use following the foundation of the City, conventionally by Romulus and Remus in 753 BC, or year 1 AUC ( ab urbe condita) (David Ewing Duncan, The Calendar (London, 1998) p. 40). The Roman calendar was reformed by Julius Caesar in 46 BC, in his role as Pontifex Maximus, the pontiff or chief priest of pagan Rome, with effect from 1st January 45 BC (see Hiram Morgan, ‘The Pope's new invention”: the introduction of the Gregorian calendar in Ireland, 1583-1782’, paper at “Ireland, Rome and the Holy See: History, Culture and Contact”, UCC History Department symposium at the Pontifical Irish College, Rome, 1st April, 2006). The reform was announced during Caesar's ‘ first months back in Rome’ after subduing Egypt (Duncan, p. 39), leaving ‘the pregnant Cleopatra [with] three Roman legions to protect her’ (p. 38).

4 This Julian calendar is still in use in some jurisdictions for some purposes. It involved moving the start of the year from March to January, reorganising the lengths of the months into alternating periods of 30 and 31 days (apart from February which had 29 days) in order to extend the year to 365 days, and adding leap years (February thus having 30 days in a leap year). The Senate named the month of July in his honour as a result (Duncan, p. 46). Further complication was then introduced when the Senate named the month of August in 8 BC for the Emperor Augustus, which had the knock-on effect that, to ensure that August did not have fewer days than the month named for Julius, a day was ‘ snatched from February’ (Duncan, p. 47) reducing it to 28 days, and the month lengths varied in a manner that ‘ wrecked Caesar's convenient system of alternating 30- and 31-day months’ (Duncan, p. 47).

5 The dating of years as AD (and in due course BC) (later alternatively CE or BCE) was introduced by St. Dionysius Exiguus in AD 525 (Duncan, p. 100), in the process of creating a table of Easter dates at the request of Pope John I.

6 In 1514, in the context of the Fifth Lateran Council, Pope Leo X established a commission on reform of the calendar (Duncan, p. 247), which sought views from interested parties, including Nicolaus Copernicus, who records his endeavours to assist in the dedication for De revolutionibus orbium coelestium (Nuremberg, 1543) (Duncan, p. 249). While that commission ‘ sputtered out’ (Duncan, p. 250), the process came to fruition six decades later with Pope Gregory XIII's calendar commission, established in the mid-1570s (Duncan, p. 261). The commission proposed a further adjustment of the Julian calendar, principally by modifying the dates of leap years, as well as eliminating ten days at the commencement of the calendar. The new system was introduced by Pope Gregory in the bull Inter gravissimas, signed on 24th February, 1582 and coming into effect at the end of 4th October, 1582. It is this Gregorian calendar that is universal today, as it was gradually adopted around the world in the following centuries. It took until 1752 for the Gregorian calendar to be adopted here, under the Calendar (New Style) Act 1750. Duncan comments that as regards the calendar being named after him, ‘ Gregory deserved this honour for the sheer bureaucratic feat of pushing through the reform when so many others had failed’ (p. 287).

7 The Ethiopian calendar, used where the applicant was born, derives from a much more ancient Egyptian solar calendar dating from around the reign of the Pharaoh Shepseskaf, approximately 2510 BC, which had twelve months of thirty days each and an intercalary month of five additional days representing the birthdays of the gods Osiris, Horus, Seth, Isis and Nephthys (Duncan, p. 20). This in turn followed from the earliest Egyptian calendar going back to 4241 BC, supposedly the first date in history (Duncan, pp. xx, 21). Likewise, the Ethiopian calendar has twelve months of thirty days each plus five or six additional days, added as a thirteenth month each year. The first calendar month is Mäskäräm which roughly starts on the 11th or 12th of September in Gregorian terms rather than in January. The Ethiopian calendar continues to add a leap year every four years, as did the Julian calendar, unlike the more accurate Gregorian calendar which does not count centuries as leap years unless they are divisible by 400. The Ethiopian calendar is currently approximately seven years behind the Gregorian calendar. According to the applicant's submissions, this is in part because the Ethiopian calendar is based on calculations made by Annianus of Alexandria in the fifth century which placed the date of the incarnation of Jesus Christ at what would be in Gregorian terms 29th August, AD 9, whereas the earlier calculations of Dionysius Exiguus dated the incarnation as approximately eight years earlier.

8 The applicant's Ethiopian birth certificate states her date of birth as ‘24/01/75’ in Ethiopian terms (although I note here that what month exactly is meant by ‘01’ is still unclear) and ‘04/10/82’ in Gregorian terms.

9 The applicant commenced working for an Irish family in Saudi Arabia as an au pair and then returned with the family to Ireland in 2003. In 2005 she was sponsored to work in a call centre. On 20th May, 2011, she was granted an Ethiopian passport which states her date of birth as ‘24 Sep 75’. She applied for naturalisation as an Irish citizen and inserted her date of birth as ‘24/09/1975’ on p. 1 of the relevant form, Form 8. The Form 8 application contains a section headed ‘ detailed guidance on filling out the application form’, in which it states the that identification...