Iurescu (A Minor) v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr Justice David Keane |
| Judgment Date | 19 July 2019 |
| Neutral Citation | [2019] IEHC 535 |
| Docket Number | [2017 No. 143 JR] |
| Court | High Court |
| Date | 19 July 2019 |
[2019] IEHC 535
THE HIGH COURT
JUDICIAL REVIEW
Keane J.
[2017 No. 143 JR]
AND
Judicial review – Certificate of naturalisation – Good character – Applicant seeking an order of certiorari quashing the decision of the respondent to refuse her a certificate of naturalisation – Whether the respondent’s decision took account of an irrelevant consideration, namely the bad character of the applicant’s father
Facts: The applicant (the child) sought, primarily, an order of certiorari quashing the decision of the first respondent, the Minister for Justice and Equality, dated 7 December 2016, to refuse her a certificate of naturalisation under s. 15 of the Irish Nationality and Citizenship Act 1956 because the Minister was not satisfied that the child’s father was a person of good character. The child submitted that: first, by basing that decision on the father’s failure to satisfy the Minister of his own good character, the Minister acted in breach of the child’s entitlement to natural and constitutional justice and fair procedures and unlawfully discriminated against the child; second, the Minister’s decision took account of an irrelevant consideration, namely the father’s bad character; third, the decision failed to take account of a relevant consideration, namely the child’s unblemished character; fourth, the decision was unreasonable, irrational, disproportionate, or a combination of some or all of those things; and fifth, if s. 15(1)(a)(ii) of the 1956 Act requires or permits a decision on the naturalisation of a minor to be taken on the basis of the character of the parent, guardian or person in loco parentis by whom the application is made, and not that of the minor concerned, then the section is unconstitutional.
Held by the High Court (Keane J) that, in concluding that it was a condition of the naturalisation of the child that the father satisfy the Minister of the father’s good character, the Minister erred in law in the decision, dated 7 December 2016, to refuse the child a certificate of naturalisation under s. 15 of the 1956 Act on the basis that the Minister was not satisfied of the father’s good character.
Keane J held that he would make an order of certiorari quashing the decision of the Minister, dated 7 December 2016.
Order granted.
The applicant (“the child”) seeks, primarily, an order of certiorari quashing the decision of the first respondent (“the Minister”), dated 7 December 2016, to refuse her a certificate of naturalisation under s. 15 of the Irish Nationality and Citizenship Act 1956, as amended (“the Act of 1956”) because the Minister was not satisfied that the child's father was a person of good character.
The child also seeks a declaration that s. 15 of the Act of 1956, properly interpreted, does not require the Minister to be satisfied of the good character of the parent, guardian or person in loco parentis applying on behalf of the minor, rather than of the good character of the minor concerned, as a condition precedent to the exercise of the Minister's absolute discretion to grant a certificate of naturalisation.
If s. 15 of the Act of 1956, properly interpreted, makes the good character of the parent, guardian or person in loco parentis applying on a minor's behalf a condition precedent to the exercise of the discretion to naturalise that minor, then the child seeks a declaration that the section is unconstitutional.
If the section is not found to be unconstitutional on that basis, the child seeks a declaration, under s. 5 of the European Convention on Human Rights Act 2003, that it is incompatible with Article 8 of the European Convention on Human Rights, either alone or in conjunction with Article 14 of that Convention.
The child was represented by Siobhan Phelan S.C. with Patricia Brazil B.L., instructed by the Independent Law Centre of the Immigrant Council of Ireland. The Minister was represented by Siobhán Stack S.C. with Alexander Caffrey B.L., instructed by the Office of the Chief State Solicitor. I am very grateful to counsel for the deftness and thoroughness of their submissions.
The child is a girl who was born in the State on 3 September 2010. The child's mother is a citizen of Moldova, born on 13 February 1989, who came to Ireland to seek employment in October 2007. The mother met the child's father in 2009 and later married him in 2011.
The father entered the State in 2002 and was residing here at the material time on what are known as “Stamp 4” conditions. “Stamp 4” is not a defined legal term, but one used by the Department of Justice and Equality (“the department”) as part of an administrative scheme that it operates, involving different categories of permission to reside in the State. According to the department's website, the type of residence permission denoted by a “Stamp 4” on a person's passport includes permission to take up employment; to engage in the practice of a profession; and to operate a business, as well as permission to access State funds when otherwise eligible to do so.
The mother was, in her words, undocumented when she arrived in Ireland in 2007. In October 2012, she applied for humanitarian leave to remain in the State. The mother avers that, during their relationship, the father prevented her from obtaining the legal advice necessary to seek to regularise her immigration status.
The mother alleges that the father was violent towards her on several occasions and that, on 17 July 2013, he physically assaulted her, forcing her to flee to a women's refuge with the child. The mother subsequently obtained a barring order against the father. The father now has court-ordered access to the child and pays court-ordered maintenance for the child's support on terms agreed with the mother.
On 30 September 2013, the Minister granted the mother permission to remain in the State on a Stamp 4 basis for a period of 3 years.
The father applied for naturalisation as an Irish citizen on 26 September 2014.
On 11 February 2016, while his own application for naturalisation was still pending, the father electronically submitted a completed application form for the naturalisation of the child as a minor. On 23 February 2016, the father made the necessary statutory declaration in support of that application. As directed by the Irish Naturalisation and Immigration Service, the father used Form 11, scheduled to the Irish Nationality and Citizenship Regulations 2011 ( S.I. 569 of 2011) and headed “APPLICATION BY A PARENT OR GUARDIAN OF, OR PERSON WHO IS IN LOCO PARENTIS TO, A MINOR BORN IN THE STATE WHO DID NOT AT BIRTH HAVE AN ENTITLEMENT TO IRISH CITIZENSHIP UNDER SECTION 6A (AS INSERTED BY SECTION 4 OF THE ACT OF 2004) OF THE ACT OF 1956”.
The details that the father provided in the application form included the following. In the sections for the provision of the present address and any previous addresses of both parent and minor, he gave his own current and prior addresses. He gave his date of arrival in the State as 6 February 2002. He provided the names and addresses of his own parents (the child's paternal grandparents), stating that each had been born in Moldova but had since become an Irish citizen. He confirmed that he had previously applied for naturalisation in his own right on 26 September 2014. He answered “yes” to each of the questions; “Have you ever committed any offences against the laws of Ireland or any overseas country?”, and “Do you have any convictions in the State or any other country (including traffic offences) or any civil judgments made against you?”. Finally, the father provided the following “additional details”:
“I do have traffic offences and public order offences but I have paid all the fines that have been imposed upon me, and also I have been convicted for assault, this information can be obtain (sic) from my application for Irish citizenship….
I have also stated the address where I am staying but my daughter is not all the time at this address as she is staying with mother at […] but I don't know the exact address.”
The INIS wrote to the father on 7 December 2016, informing him of the Minister's decision, in the exercise of the absolute discretion conferred by the Act of 1956, to refuse both his own application for a certificate of naturalisation and his separate application for a certificate of naturalisation on behalf of the child. A copy of the submission prepared for the Minister, with the Minister's refusal decision annotated upon it was enclosed. That submission is headed “Adult application for a certificate of naturalisation”. It recites in material part:
“Comments: [the father] has come to the attention of An Garda Síochána for (sic) respondent to a barring order, various motoring offences, intoxication in a public place and assault causing harm. He received his most recent conviction on 10/02/15, please see attached copy of Garda report, court orders and explanation from the applicant. All receipts of the fines paid have been submitted other than the €200 and €75 fines imposed on him at District Court 53 on 17/05/2004. The applicant advised that the fines were paid but he cannot obtain receipts, see explanation attached. He arrived in the State on 07/02/2002 and registered with [the Garda National Immigration Bureau (“GNIB”)] on 06/03/2002. He has been employed by various employers since entering the State. He is currently undergoing a FETAC Office Administration course. Prior to this he was in receipt...
To continue reading
Request your trial