A.J.A. v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 15 November 2022
• Neutral Citation: [2022] IEHC 624
• Court: High Court
• Docket Number: 2022 No. 163 J.R.

Between

A.J.A.

Applicant

and

The Minister for Justice and Equality

Respondent

[2022] IEHC 624

2022 No. 163 J.R.

THE HIGH COURT

Certificate of naturalisation – Fair procedures – Adequacy of reasons – Applicant challenging the respondent’s decision to refuse an application for a certificate of naturalisation – Whether fair procedures were observed in the decision-making process

Facts: The applicant challenged a decision of the respondent, the Minister for Justice and Equality, to refuse an application for a certificate of naturalisation pursuant to the Irish Nationality and Citizenship Act 1956 (as amended). The Minister refused the application on the grounds that the applicant had not satisfied the “good character” criterion under s. 15(1)(b) of the Act in circumstances where the passport, which had been submitted as part of the application, had been falsified by the inclusion of a counterfeit page. The principal issue for determination in the judicial review proceedings was whether fair procedures were observed in the decision-making process. In particular, complaint was made that the formal submission and recommendation furnished to the ultimate decision-maker did not make adequate reference to the fact that the applicant herself had informed the Minister that the passport, which she said she had obtained in good faith, might not be valid nor that she had offered an explanation for the submission of same.

Held by the High Court (Simons J) that the decision to refuse to grant a certificate of naturalisation in the case was invalid on the following two grounds: first, the submission/recommendation furnished to the ultimate decision-maker did not comply with the standard of fair procedures identified by the Court of Appeal in A.A. v Minister for Justice and Equality [2019] IECA 272, Talla v Minister for Justice and Equality [2020] IECA 135, and M.N.N. v Minister for Justice and Equality [2020] IECA 187; secondly, the decision did not meet the legal test for the adequacy of reasons as set out by the Supreme Court in Mallak v Minister for Justice Equality and Law Reform [2012] IESC 59, and, more recently, in A.P. v Minister for Justice and Equality [2019] IESC 47.

Simons J made an order of certiorari setting aside the decision of 7 December 2021, and remitted the matter to the Minister, pursuant to Order 84, rule 27, with a direction to reconsider it and reach a decision in accordance with the findings of the High Court. As to costs, Simons J’s provisional view was that the applicant, having been “entirely successful” in her proceedings, was entitled to recover her costs as against the Minister in accordance with the default position under s. 169 of the Legal Services Regulation Act 2015; such costs would be adjudicated, in default of agreement, pursuant to Part 10 of the 2015 Act.

Application granted.

Appearances

Conor Power, SC and Tríona Jacob for the applicant instructed by Daly Lynch Crowe & Morris

Sarah Cooney for the respondent instructed by the Chief State Solicitor

JUDGMENT of Mr. Justice Garrett Simons delivered on 15 November 2022

INTRODUCTION

1 These proceedings involve a challenge to a decision to refuse an application for a certificate of naturalisation pursuant to the Irish Nationality and Citizenship Act 1956 (as amended). The Minister for Justice and Equality refused the application on the grounds that the Applicant had not satisfied the “ good character” criterion under Section 15(1)(b) of the Act in circumstances where the passport, which had been submitted as part of the application, had been falsified by the inclusion of a counterfeit page.

2 The principal issue for determination in these judicial review proceedings is whether fair procedures were observed in the decision-making process. In particular, complaint is made that the formal submission and recommendation furnished to the ultimate decision-maker did not make adequate reference to the fact that the Applicant herself had informed the Minister that the passport, which she says she had obtained in good faith, might not be valid nor that she had offered an explanation for the submission of same.

LEGAL FRAMEWORK

3 Part III of the Irish Nationality and Citizenship Act 1956 (as amended) makes provision for the acquisition of citizenship by naturalisation. Section 15 of the Act provides that the decision on whether to grant a certificate of naturalisation is to be made by the Minister for Justice and Equality. Upon receipt of an application for a certificate of naturalisation, the Minister may, in his or her “ absolute discretion”, grant the application, if satisfied that the applicant fulfils the conditions of naturalisation.

4 The conditions of naturalisation are defined for the purpose of the Act as follows:

• (a) The applicant must either (i) be of full age, or (ii) be a minor born in the State;

• (b) The applicant must be of good character;

• (c) The applicant must have had a period of one year's continuous residence in the State immediately before the date of the application, and, during the eight years immediately preceding that period, must have had a total residence in the State amounting to four years;

• (d) The applicant must intend in good faith to continue to reside in the State after naturalisation; and

• (e) The applicant must (i) have made a declaration, in the prescribed manner, of fidelity to the nation and loyalty to the State, and (ii) undertaken to faithfully observe the laws of the State and to respect its democratic values.

5 The Act provides that the decision on whether or not to grant a certificate of naturalisation is one within the “ absolute discretion” of the Minister. This does not mean, however, that the Minister's decision is immune from judicial review. The Supreme Court in Mallak v. Minister for Justice Equality and Law Reform [2012] IESC 59, [2012] 3 I.R. 297 emphasised that persons affected by administrative decisions should have access to justice, that they should have the right to seek the protection of the courts in order to see that the rule of law has been observed, that fair procedures have been applied and that their rights are not unfairly infringed. On the facts of Mallak, the Supreme Court held that the Minister was under a duty to provide reasons for a decision to refuse an application for naturalisation. It further held that the Minister's failure to do so deprived the applicant of any meaningful opportunity either to make a new application for naturalisation or to challenge the decision on substantive grounds.

6 The Court of Appeal, in M.N.N. v. Minister for Justice and Equality [2020] IECA 187 (at paragraph 52), has since provided the following authoritative statement of the principles governing the exercise of the “ absolute discretion” to grant or refuse a certificate of naturalisation:

“The following emerges from the caselaw:

• (i) in describing the Minister's discretion as ‘absolute’, the Oireachtas intended to emphasise that the grant of a certificate of naturalisation involves the conferring of a privilege;

• (ii) the fact that naturalisation is the grant of a privilege does not mean that an applicant enjoys inferior legal protection when pursuing such an application;

• (iii) the Minister's absolute discretion to grant naturalisation only arises if satisfied that an applicant is of ‘good character’ and, extensive as that competence may appear, it does not release the Minister of the obligation to operate within the rule of law and his determination is amenable to judicial review;

• (iv) in determining the criteria to be considered when assessing ‘good character’ an applicant's character and conduct must be assessed against reasonable standards of civic responsibility gauged by reference to contemporary values;

• (v) the connection between character and criminality can only be established when the Minister has all relevant information, including, context and mitigating factors, in connection with a crime;

• (vi) information that is presented to the Minister in a Submission or recommendation must be accurately recorded, complete and seen in context and considered in full by the decision maker before reaching a determination; and

• (vii) in deciding whether an applicant fulfils the ‘good character’ requirement of the Act, the Minister must undertake a comprehensive assessment of an applicant as an individual and must consider all aspects of character.”

7 Point (vi) above is of especial relevance to the present case, having regard to the arguments advanced by the Applicant. It is necessary, therefore, to consider this aspect of the Court of Appeal's judgment in more detail. On the facts of the case, an internal document, described variously as a “ submission” or “ recommendation”, had been prepared by more junior officials within the Minister's department and then furnished to the ultimate decision-maker. The Court of Appeal ( per Power J.) emphasised the need for such an internal document to be accurate and complete. The Court of Appeal held that where serious and damaging allegations appear on the face of a submission or recommendation, basic fairness and natural justice require that any information that may assist in ruling out concerns in respect of an applicant's good character should be highlighted, specifically, for the decision-maker's attention. In principle, it is not sufficient that important contextual and exculpatory information in relation to an applicant's character is to be found somewhere in the file to which a submission is attached.

8 Similar sentiments had been expressed by the Court of Appeal in its earlier judgments in A.A. v. Minister for Justice and Equality [2019] IECA 272 and Talla v. Minister for Justice and Equality [2020] IECA 135. Both of these judgments also emphasise the importance of the Minister considering all relevant material, and that the information in any...