Jiad v Min for Justice

JurisdictionIreland
JudgeMr. Justice Cooke
Judgment Date19 May 2010
Neutral Citation[2010] IEHC 187
CourtHigh Court
Date19 May 2010
Jiad v Min for Justice
JUDICIAL REVIEW
MR JUSTICE COOKE
APPROVED TEXT
BETWEEN/
HASAN ABEDALI JIAD
APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT

[2010] IEHC 187

[No. 626 JR./2010]

THE HIGH COURT

IMMIGRATION

Naturalisation

Certificate of naturalisation - No reasons given - Absolute discretion - Necessity to give reasons - Absolute discretion of respondent in granting citizenship - Arguable case - Necessary proofs - Whether decision of respondent unlawful - Whether obligation on respondent to give reasons for decision where absolute discretion to make decision - Whether arguable case made out that refusal tainted by illegality - Whether entitlement to reliefs claimed established by applicant - Pok Sun Shum v Ireland [1986] ILRM 593, Mishra v Minister for Justice [1996] 1 IR 189 and Singh v MJELR [2010] IEHC 86 (Unrep, Cooke J, 17/2/2010) applied - B(A) v MJELR [2009] IEHC 449 (Unrep, Cooke J, 18/6/2009), H(LG) v MJELR [2009] IEHC 78 (Unrep, Edwards J, 20/1/2009) and R v Home Secretary, ex parte Fayed [1997] 1 All ER 228 distinguished - East Donegal Co-operative Livestock Mart Ltd v AG [1970] IR 317 considered - Irish Nationality and Citizenship Act 1956 (No 26) ss 14, 15, 16 - Illegal Immigrants (Trafficking) Act 2000 (No 29) s 5 - Leave refused (2010/626JR - Cooke J - 19/5/2010) [2010] IEHC 187

Jiad v Minister for Justice, Equality and Law Reform

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S14

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S16

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15(1)

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

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

B (A) v MIN FOR JUSTICE UNREP COOKE 18.6.2009 2009 IEHC 449

H (LG) v MIN FOR JUSTICE & AG UNREP EDWARDS 30.1.2009 2009 IEHC 78

R v SECRETARY OF STATE FOR THE HOME DEPT, EX PARTE AL-FAYED (NO 1) 1998 1 WLR 763 1997 1 AER 228

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

FREEDOM OF INFORMATION ACT 1997 S18

FREEDOM OF INFORMATION ACT 1997 S34(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

SINGH & SLEDEVSKA v MIN FOR JUSTICE UNREP COOKE 17.2.2010 2010 IEHC 86

1

JUDGMENT of Mr. Justice Cooke delivered on the 19th day of May, 2010.

2

1. The applicant applies to the Court ex parte for leave to seek judicial review of a decision of the respondent made on 23 rd November, 2009 refusing his application for a certificate of naturalisation under s. 14 of the Irish Nationality and Citizenship Act 1956 (as amended). In particular, leave is sought to apply for an order of certiorari to quash that decision together with an order of mandamus to compel the Minister to reconsider the application.

3

2. The applicant is a native of Iraq who came to Ireland as an asylum seeker in 1996. His application was unsuccessful but he was granted temporary leave to remain in the State in May 1997 which has since been renewed from time to time and currently stands extended until May 2011. He says that he has settled successfully in Ennis, Co. Clare and since 2003 has operated a small business in which he now employs five people.

4

3. The application the subject matter of this judicial review proceeding is the third application which he has made for a certificate of naturalisation. He first applied in September, 1999 but was refused in 2003, no reason for the refusal being given. He applied again in 2004 but was once more refused without stated reason in 2006. The application which is the subject of the contested refusal of 23 rd November, 2009 was made in September, 2006.

5

4. In the letter of 23 rd November, 2009 refusing the present application, the only explanation given by the Minister was in these terms:

"In reaching this decision, the Minster has exercised his absolute discretion, as provided by the Irish Nationality and Citizenship Acts 1956 - 1986, as amended. There is no appeals 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. Having said this, any further application will be considered taking into account all statutory and administrative conditions applicable at the time of the application."

6

5. In the statement of grounds proposed to be relied upon if leave is granted, the main grievance expressed, perhaps understandably, is directed at the fact that this is the third application which has been refused and that no reasons have been given. Thus, the following objections are raised:-

7

· Re-applying is pointless when the applicant has already applied three times and does not know the basis on which he has been refused;

8

· There appears to be no rational basis for refusal when the applicant has been living in this State for fourteen years;

9

· There is a failure to consider all material and relevant matters including the applicant's connections to the State, his financial position and so must be based upon some unknown or irrelevant factors;

10

· The applicant has not been afforded a fair procedure because the reason for the refusal has never been put to the applicant so as to allow him to respond;

11

· If no reasons are provided the Court cannot assess whether the decision has been taken in a manner compatible with the Constitution or the European Convention on Human Rights.

12

6. This application for leave is not one of those subjected to the limitations of s. 5 of the Illegal Immigrants (Trafficking) Act 2000 so that the ordinary standard for the grant of leave applies namely, that an arguable case must be demonstrated.

13

7. Section 14 of the 1956 Act (as amended) provides that Irish citizenship may be conferred upon a non-national by means of a certificate of naturalisation granted by the respondent. Section 15 of the Act upon which the present application turns reads as follows:-

14

2 "(1) Upon receipt of an application for a certificate of naturalisation, the Minister may, in his absolute discretion, grant the application, if satisfied that the applicant-

15

(a) (i) is of full age or

16

(ii) is a minor born in the State;

17

(b) is of good character

18

(c) has had a period of one years continuous residence in the State immediately before the date of the application and, during the eight years immediately preceding that period has had a total residence in the State amounting to four years;

19

(d) intends in good faith to continue to reside in the State after naturalisation; and

20

(e) has made either before a justice of the District Court in open court or in such manner as the Minster, for special reasons, allows, a declaration in the prescribed manner, of fidelity to the nation and loyalty to the State.

21

(2) The conditions specified in para. (a) - (e) of subsection (1) are referred to in this Act as conditions for naturalisation.

22

8. Section 16 of that Act also provides that the Minister may "in his absolute discretion" grant a certificate of naturalisation in a number of specific cases notwithstanding the fact that the conditions for naturalisation in s. 15 (or any of them) are not complied with. It is not contested that the absolute discretion relied upon by the Minster in the contested refusal in the present case is that of s. 15 (1). No question arises of the Minister having exercised the distinct discretion under s. 16 to refuse to grant the certificate notwithstanding the non-compliance with conditions.

23

9. In these circumstances the Court is satisfied that leave cannot be granted for the purpose of the application proposed to be made because no stateable case is established to the effect that the Minister's refusal in the decision of 23 rd November, 2009 is in any way unlawful. The position in law, as the Court sees it, is essentially this. The conferral of citizenship is a function of the sovereignty of the State. No non-national has a right to citizenship. The State grants citizenship as a privilege. The State has an absolute discretion as to whether or not it will accord that privilege to a non-national in any case and in the 1956 Act the Oireachtas has delegated that executive function to be exercised by the respondent Minister. Because there is no right on the part of any non-national to be granted citizenship and because the Oireachtas has empowered the Minister to grant certificates of naturalisation in his absolute discretion, the Minister cannot be under any obligation to give a reason for the refusal of the certificate in any given case where the absolute discretion is relied upon. To require the Minister always to state a reason peculiar to the circumstances of an applicant other than the exercise of the absolute discretion would be to deprive the basis upon which the statutory delegation had been enacted by the Oireachtas of its meaning and effect.

24

10. This Court is satisfied that the law as so stated is well settled and binding upon it. In particular, in his judgment in Pok Sun Shum and Others v. Ireland and Others [1986] I.L.R.M. 593, Costello J. (as he then was) said:

"There is no general rule of natural justice that in each case where a decision might be made adverse to an applicant, there must be disclosure. And I think that in this, because the nature of the discretion which the Statute gives to the Minister, he is...

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