MAD v Minister for Justice
 IEHC 446
THE HIGH COURT
[2013 No. 933 J.R.]
Asylum, Immigration & Nationality – S. 15 of the Irish Nationality and Citizenship Act 1956 – Refusal to grant certificate of naturalisation – Absolute discretion
Facts: The applicant sought an order of certiorari for quashing the decision of the respondent refusing to grant a certificate of naturalisation to the applicant. The applicant contended that the respondent could not make findings against him of not being of 'good character' under s. 15 of the Irish Nationality and Citizenship Act 1956 on the basis of his criminal record charging him of minor offences. The applicant contended that the respondent erred in law as the nature of offences required for the assessment of applications under s. 15 of the said Act must be grave and indictable.
Ms. Justice Stewart refused to grant an order of certiorari to the applicant. The Court held that in order to assess the naturalisation applications, the respondent had been granted an absolute discretion by the legislators and the Courts should not fetter that discretion. The Court opined that while assessing the applicant's good character, the respondent had discretion to consider the offences that the applicant had been charged with, irrespective of their gravity, the repetition of offences and the number of convictions. The Court, however, observed that the respondent had no discretion to consider the facts outside the control of the applicant. The Court found that the decision of the respondent was just and cogent and it was made taking into account the full criminal record of the applicant, which by itself was suggestive of the applicant's conduct and behaviour.
The applicant is a national of Somalia who has applied for a certificate of naturalisation. He seeks an order of certiorari quashing the decision of the respondent pursuant to s.15 of the Irish Nationality and Citizenship Act 1956 (as amended) refusing to grant a certificate of naturalisation to the applicant, as notified by letter dated 7th October, 2013.
The applicant is a national of Somalia born on 16th September, 1983. His father has been living in the State since 1991. The applicant, his mother and five siblings arrived in the State in 1994 from Ethiopia, where they had been living in a refugee camp having fled the war in Somalia. The family were brought to Ireland by the UNHCR in cooperation with the Irish authorities. The applicant states on affidavit that he believed that he and his family had been granted refugee status in Ireland and avers that he has since learnt that the family's status in Ireland is based on a grant of temporary leave to remain which was renewed as required.
The applicant has made six applications to the respondent seeking the grant of a certificate of naturalisation.
The applicant's first application was sent to the minister on 1st August, 2001 (p.3). The respondent issued a letter to the applicant's solicitors on 23rd March, 2005 (p.14), giving notice that the minister had decided not to grant a certificate of naturalisation. The reason given therein was that the applicant had been in receipt of a social welfare payment in the three-year period preceding his application. As the applicant had not reached the age of majority at the time of this application, the fact that his father had been in receipt of a social welfare payment during the three-year period was taken in account.
The applicant made a second application for naturalisation on 20th May, 2005 (p.19), again enclosing supporting documentation. By letter dated 11th October, 2005 (p.52), the respondent informed the applicant that his certificate of naturalisation would not be granted because he did not have the requisite five-year reckonable residency at the time of his application. The respondent enclosed a document showing how this was calculated. The letter concluded with the following:
'I am enclosing a new application form as it is open to your client to lodge a new application now.'
The applicant submitted a third application on 8th November, 2005 (p.57), which was incorrectly dated 5th July, 2005. By letter of 19th April, 2006, the respondent stated as follows:
'While processing your client's application it was noted that they entered the State as a minor. In these circumstances I would be obliged if you could confirm whether your client also entered the State as a member of a family unit. If this was the case please could you forward copies of your client's parent's passports showing their permission to remain stamps for a period of 10 months prior to October 2001.'
The applicant furnished the necessary documents on 24th April, 2006. The respondent informed the applicant, by letter dated 23rd May, 2006, that he did not have the required five years reckonable residence at the date of application, enclosing a document showing how same had been calculated. The applicant wrote to the respondent on 15th September, 2006, stating that his reckonable residence in the State had been erroneously calculated. The letter draws attention to the previous refusal of naturalisation and the calculation of reckonable residence therein, as well as that fact that the applicant's two sisters and mother had been granted naturalisation having arrived in the State on the same date as the applicant. The application was reconsidered by the respondent. Additional documentation was submitted in the intervening period. By letter dated 22nd March, 2010, and an enclosed annotated decision, the minister refused the applicant's application for certificate of naturalisation. The reasons set out therein were as follows:
i. The applicant has come to the adverse attention of the Garda Síochána and has a criminal record in the State; and
ii. The applicant was, at the time, in receipt of social welfare support and could not be financially self-sufficient without recourse to State funds.
By cover letter dated 4th August, 2010, the applicant submitted his fourth application for a certificate of naturalisation together with the relevant supporting documentation. It was during the process of this application, and by letter dated 31st May, 2011, that the applicant states his residency status came to light. In the aforementioned letter, Irish Naturalisation and Immigration Service's Repatriation Unit informed the applicant that he was never granted refugee status but rather that his father was granted temporary leave to remain in 1991, and the applicant, his mother and five siblings were granted permission to join their father in the State. Enclosed with the letter was the original letter granting such permission, as sent by the immigration and citizenship division to the Garda Síochána on 26th October, 1994, and exhibited at p.228 of the booklet furnished to this Court.
The respondent made requests for additional documentation which were duly provided by the applicant. However, the applicant's sworn declaration form was signed and dated more than six months before the application for naturalisation was lodged. The respondent requested a new signed declaration and enclosed a new declaration with a letter dated 20th June, 2011. This was submitted by the applicant; however, the applicant did not receive confirmation of receipt of same. Instead the respondent sent another request for a statutory declaration on 26th August, 2011. In light of these issues, the applicant resubmitted the application form in its entirety along with the accompanying documentation, receiving confirmation of receipt on 8th December, 2011. Further documentation was submitted as required after that date.
On 22nd March, 2012, the applicant became a father to an Irish citizen child. The child's birth certificate and an accompanying letter were submitted to the respondent on 14th April, 2012. The applicant received an acknowledgment receipt for the aforementioned documents.
The applicant received further correspondence, dated 19th July, 2012, from the respondent again refusing his application for a certificate of naturalisation. The reasons for that refusal, as contained in the letter at p.324 of the booklet, were as follows:
'Section 15 of the Irish Nationality and Citizenship Act, 1956, as amended, provides that the Minister may grant a certificate of naturalisation if, among other things, the applicant has been resident in the State five years in the nine year period before the date of application i.e. 60 months. For the purposes of calculating this residency, no period may be taken into account where a non-national:
1. was required to have permission of the Minister to remain in the State but did not have that permission, or
2. had permission to remain for the purpose of study (whether or not such study necessitated the employment of the non-national during the whole or part of the period of study), or
3. had permission to remain for the purpose of seeking to be recognised as a refugee (within the meaning of the Refugee Act, 1996) where such application was either unsuccessful or withdrawn.
It has been determined that your client did not meet the above criteria at the time you applied. The documentation submitted with the application, coupled with our own internal enquires, have disclosed that while your client has five year's ( sic) residence in the State, he did not have one year's continuous...
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