JO (Nigeria) v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Ms. Justice Stewart |
| Judgment Date | 11 November 2016 |
| Neutral Citation | [2016] IEHC 759 |
| Docket Number | [2015 No. 585 JR] |
| Court | High Court |
| Date | 11 November 2016 |
[2016] IEHC 759
[2015 No. 585 JR]
THE HIGH COURT
JUDICIAL REVIEW
Asylum, Immigration & Nationality – S.15 of the Irish Nationality and Citizenship Act 1956 (as amended) – Refusal to grant certificate of naturalisation – Certiorari – Inconsistencies in information
Facts: The applicant sought an order of certiorari for quashing the decision of the respondent for refusing his application for naturalisation as an Irish citizen. The applicant contended that the respondent had treated his convictions for non-payment of fines and the resultant committal history as serious in nature and determinative of the good character requirement under s. 15 of the Irish Nationality and Citizenship Act 1956. He argued that only criminal convictions should be considered for the evaluation of an application under s.15. There was an issue as to whether the respondent could withdraw its intent to grant naturalisation later on even when no new information was submitted to it. The respondent argued that the grant of intent did not stop it from reconsideration of additional information. The respondent further submitted that prior convictions of the applicant were evaluated under the category of additional information and not under the category of recommendation while addressing about the applicant's good character.
Ms. Justice Stewart refused to grant an order of certiorari to the applicant. The Court held that the decision taken by the respondent was just and appropriate. The primary factor that was considered by the respondent was the failure of the applicant to explain adequately about the inconsistencies in the date of birth of the applicant and not his prior minor convictions. The Court held that unless all the criteria mentioned under s.15 had been satisfied, the respondent could not exercise its discretion to grant the certificate. The Court noted that despite requesting the applicant to provide explanations for the discrepancies in his application, he had refused to co-operate with the respondent.
This is a hearing seeking, inter alia, an order of certiorari in respect of the decision of the respondent made on 30th June, 2015, to refuse an application for naturalisation as an Irish citizen and to over-ride a contrary intention expressed on 10th July, 2013. This decision was made pursuant to s. 15 of the Irish Nationality and Citizenship Act 1956 (as amended) and these proceedings are brought pursuant to a Notice of Motion dated 11th December, 2015.
The applicant is a Nigerian national who arrived in the State on 10th March, 2000, and applied for asylum. He withdrew his application after acquiring a five year right of residence, on foot of his marriage to an EU National, on 18th December, 2001. In 2007, he made his first application for naturalisation, which was refused in 2010. The application that gives rise to these proceedings was made in 2011. In 2013, the applicant was informed that the respondent intended to grant his application. However, this was withdrawn in 2015 and the application was refused on the grounds of his adverse history with the United Kingdom's immigration authorities, his failure to properly disclose said history and the failure to fully resolve persisting discrepancies in regard to his date of birth.
Mr. O'Dwyer, S.C., with Mr. Haynes, B.L. for the applicant, relies on the case of Mallak v. MJELR [2012] 3 I.R. 297 in stating that the absolute discretion afforded to the respondent under the 1956 Act is not immune to judicial review and must be exercised within reason.
The applicant submits that he satisfied all the conditions for naturalisation, as outlined in s. 15(1) of the 1956 Act, in 2013, with the exception of the Citizenship Ceremony. Invitation to a ceremony was allegedly delayed due to logistical issues on the respondent's part and difficulties on the applicant's part in securing a renewal of his GNIB card. The applicant alleges that, by 9th June, 2014, these issues had been resolved and he was told an invitation to a Ceremony was forthcoming. He submits that notice of further consideration of his application was communicated on 15th July, 2014, and, almost a year later, the impugned decision was arrived at.
The applicant submits that the impugned decision is irrational because it is based on reasons that flow from information already within the knowledge of the respondent when the expression of intent was communicated. This allegedly includes knowledge of his criminal convictions and of discrepancies relating to his date of birth.
The applicant alleges that the respondent treated his convictions for the non-payment of fines and resultant committal history as serious in nature and/or as determinative of the good character requirement under s. 15 of the 1956 Act. He relies on a number of cases, including M.A.D. v. MJE [2015] IEHC 446 and Okornoe v. MJE [2016] IEHC 100, to outline the procedure through which criminal convictions should be considered in the context of a naturalisation application. He submits that the offences in question were minor, small in number and therefore should not be viewed as a serious blemish on his good character. The applicant relies on Hussain v. Minister for Justice [2011] IEHC 171 in defining 'good character'.
The applicant submits that he wrote to the respondent prior to the 2013 communication and pointed out the mistake in recording his date of birth. He draws the Court's attention to the respondent's delay in requesting an explanation for the discrepancies in his date of birth. Upon a second request, the applicant stated that the initial error (which recorded date of birth as '13/08/75') arose due to a mistake on his part, precipitated by the stress of the asylum process, and that the second error (which recorded date of birth as '03/08/75') stemmed from a fault in the Irish Marriage Registry. He submits that the respondent was furnished with an explanation for the second error from the Superintendent Registrar of the Civil Registration Office, who confirmed it to be a transcription error on their part. He therefore alleges that a material error of fact exists in regard to the references to 'various' dates of birth and '[the failure to provide] a satisfactory explanation'. The applicant highlights the efforts he has made to regularise his documentation. He takes issue with the respondents' use of this inconsistency to make adverse determinations as to his good character and identity in spite of his attempts to remedy the matter. If this ground is allowed to stand, the applicant is concerned that he will have no viable options available to remedy the situation and address the respondent's concerns.
The applicant submits that it is not rational for the Irish National Immigration Service (INIS) to accept his identity for the purposes of his EU Treaty Rights application and then impugn it in a parallel application for naturalisation.
The applicant also seeks an extension of time pursuant to O. 84 r. 21(3) of the Rules of the Superior Courts. The applicant submits that the 23-day delay in seeking leave was brought about by delays in the Freedom of Information Unit in disclosing the applicant's immigration file, without which the applicant's solicitor could not proffer sound legal advice.
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Omara v Minister for Justice and Equality
...was not a person of good character and so did not comply with the provisions of s. 15(1)(b) of the Act of 1956." 21 In J.O. v MJE [2016] IEHC 759 (Unreported, High Court, 11th November, 2016), Stewart J expressly followed Hodzic in holding that the absolute discretion under s. 15 (and, by ......