A.M.A v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IEHC 466
• Court: High Court
• Docket Number: [2014 No. 669 J.R.]
• Date: 29 July 2016

BETWEEN

A.M.A.

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

[2016] IEHC 466

Humphreys J.

[2014 No. 669 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – S. 5 of the Illegal Immigrants (Trafficking) Act 2000 – Refusal to grant certificate of naturalisation – S. 16 of the Irish Nationality and Citizenship Act 1956 – Two religious marriages – Absolute discretion – Fair procedures

Facts: The applicant sought an order to set aside the decision of the respondent for refusing to grant the certificate of naturalisation to the applicant. The respondent contended that his decision was valid under s. 15 of the Irish Nationality and Citizenship Act, 1956, as the applicant was found to be not of good character based upon two marriages and disregard to the family reunification process.

Mr. Justice Richard Humphreys dismissed the application of the applicant. The Court held that the respondent enjoyed a wide discretion in granting certificate of naturalisation, which was a privilege and not a right. The Court held that the onus was on the applicant to dispense all the doubts raised by the respondent in relation to the submission made by the applicant. The Court found that the conduct of the applicant in procuring two marriages traditionally, not legally, was wrong and irrational. The Court observed that procurement of the second marriage with an underage spouse without divorcing the first wife was indicative of the likely commission of an offence. The Court opined that the term ‘spouse’ as defined under s.18 of the Refugee Act, 1996, would mean a party to a valid, recognised and subsisting marriage and did not include a non-marital partner, as the applicant's second wife was. The Court held that the applicant had made an abuse of the family reunification process by making applications for two spouses without proof of dissolution of the first marriage and it was reasonable for the respondent to consider that marriage by an Irish resident to an underage person outside the jurisdiction was an evidence of bad character.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 29th day of July, 2016

1 The applicant is a native of Somalia and was born in Mogadishu on 15th March, 1982.

2 In 2002, he contracted a first marriage with Ms. S.H.A., which he said was a traditional marriage.

3 In 2003, he came to Ireland and sought asylum.

4 In October, 2004, he was granted refugee status. In 2005, he applied for family reunification for the benefit of his first wife. On 27th September, 2005, he filled in a questionnaire in support of that application stating that his marriage was religious (rather than ticking the option for legal marriage).

5 On 23rd November, 2006, the application for family reunification with his first wife was granted.

6 On 3rd December, 2007, he applied for naturalisation as an Irish citizen.

7 He says that his marriage broke down in or about 2008 and the parties separated in 2009.

8 In August 2009, he contracted a second marriage in Ethiopia to Ms. K.X.C.A., who was 16 years of age at the time. The legal age for marriage in Ethiopia is 18. Marriages below that age are invalid unless a dispensation is obtained, although they may be deemed lawful once the bride attains her majority.

9 On 15th June, 2012, he made a second application for family reunification for the benefit of his second wife.

10 A questionnaire was sent to him on or about 19th June, 2012 (the date which appears at the front of the document) and appears to have been filled in on or about 11th July, 2012 (the date at the end of the document). In this questionnaire, he stated referring to his second marriage that it was a traditional marriage ‘only’ and did not comply with the formalities of a legal marriage.

11 On 7th September, 2012, in the context of the second family reunification application, a report from the Refugee Applications Commissioner was sent to the applicant setting out certain matters regarding the family law situation in Ethiopia.

12 On 11th September, 2012, a positive recommendation was prepared for the Minister in respect of his naturalisation application. The Minister did not, however, approve the application, but returned it to officials with queries.

13 The matter came back to the Minister on 4th December, 2012, which resulted in further queries from him, one of which was a highly pertinent comment that ‘the applicant appears to regard it as appropriate to be a party to two traditional marriages’.

14 Having encountered submissions to Ministers in different contexts it is heartening to see the very detailed and pertinent engagement by the Minister personally with the detail of this application. Unfortunately for the applicant, however, the bringing to bear of a more searching analysis to that application appears to have altered the direction of the Department's recommendations as the matter evolved.

15 On 12th April, 2013, the applicant was written to and asked to clarify certain matters including the legal status of his second marriage. Despite the fact that a reasonable person should have been put on alert by a letter of this kind, his reply on this point was laconic if not evasive and he simply repeated that it was ‘traditional’. This did not answer the question. It added nothing to his questionnaire and it is hard to see how he could have reasonably thought that this was an adequate response.

16 On 7th August, 2014, the naturalisation application was refused by the Director General of the Irish Naturalisation and Immigration Service. The applicant was notified of this refusal by letter dated 26th August, 2014, received on 28th August, 2014.

17 On 24th September, 2013, this application for family reunification for the benefit of his second wife was refused, primarily on the basis that the Minister was not satisfied that it was a lawful marriage due to the previous marriage and the underage nature of the second marriage in any event.

18 The present proceedings challenging the refusal of the naturalisation application were instituted on 13th November, 2014. The application is within time because the 3 month period applies to naturalisation decisions, which oddly fall outside s. 5 of the Illegal Immigrants (Trafficking) Act 2000. Leave was granted by Mac Eochaidh J. on 17th November, 2014.

19 The second wife currently remains in Ethiopia with the couple's two children.

Procedural issues

20 The applicant sought to introduce a late affidavit which was received the day before the hearing. Mr. Daniel Donnelly B.L., for the respondents, very candidly and properly accepted that if the affidavit was to be admitted, he would not be seeking an adjournment in order to deal with it. Under those circumstances, I permitted the late affidavit.

21 A further issue arose in relation to a fall back argument from Mr. Colm O'Dwyer S.C. (with Ms. Patricia Brazil B.L.) in the course of his very able argument for the applicant that there was a failure by the Minister properly to consider s. 16 of the Irish Nationality and Citizenship Act 1956 (the power to waive conditions of naturalisation). Objection was taken to this argument on the grounds that it was not pleaded. Mr. O'Dwyer firstly submitted that it came within grounds 4, 5 and 7. In my view, it clearly does not, as those grounds do not have the specificity that is required under the amendments introduced by the Rules of the Superior Courts (Judicial Review) 2011.

22 Even if it had been pleaded, the point he wished to make has already been rejected by Cooke J. in A.B. v. Minister for Justice, Equality and Law Reform [2009] IEHC 449 (Unreported, High Court, Cooke J., 18th June, 2009) at para. 15. Having decided to reject an application on particular grounds, a decision-maker is not then required to go on to consider separately and expressly whether to waive those grounds.

How wide is the Minister's discretion in naturalisation decisions?

23 The 1956 Act describes the Minister's discretion as ‘ absolute’ (s. 15(1)), which means not literally unconstrained but as absolute as it is possible to be in a system based on the rule of law. In practice this is a very wide discretion: see A.B. per Cooke J. at para. 19; Tabi v. Minister for Justice, Equality and Law Reform [2010] IEHC 109 (Unreported, High Court, Cooke J., 16th April, 2010); M.A.D. v. Minister for Justice and Equality [2015] IEHC 446 (Unreported, High Court, Stewart J., 14th July, 2015).

24 It is clear that in public law decisions, the extent of natural justice varies according to context (see my decision in Z.K. v. Reception and Integration Agency [2016] IEHC 20 (Unreported, High Court, 15th January, 2016), and that of Noonan J. in Hosford v. Minister for Social Protection [2015] IEHC 59 (Unreported, High Court, 6th February, 2015)). It is not a ‘one size fits all’ doctrine. While some decisions, such as a conviction in the criminal process, or interference in the relationship between a parent and child, require the dial to be turned up to the maximum in terms of natural justice and fair procedures, other decisions involve a lower standard and indeed some decisions, such as the adoption of legislative measures, ‘political questions’ or the exercise of managerial authority, do not attract fair procedures in any meaningful sense at all.

25 Naturalisation is a privilege and not a right. For many centuries, such decisions were reserved to the legislature. Obviously, fair procedures do not apply to a sovereign decision to decline to enact a particular piece of legislation. Schedule 2 to the Statute Law Revision Act 2009 and Sch. 2 to the Statute Law Revision Act 2012 list several hundred such naturalisation Acts enacted between 1558 and 1896. Thereafter, the grant of naturalisation has been an executive function, with only minimal regulation by...