Mallak v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 22 July 2011
• Neutral Citation: [2011] IEHC 306
• Court: High Court
• Date: 22 July 2011

[2011] IEHC 306

THE HIGH COURT

[No. 492 J.R./2009]

Mallak v Min for Justice

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

GHANDI NAWAF MALLAK

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15

FREEDOM OF INFORMATION ACT 1997 S18

FREEDOM OF INFORMATION ACT 1997 S18(2)

FREEDOM OF INFORMATION ACT 1997 S18(2)(B)

FREEDOM OF INFORMATION ACT 1997 S34(2)

DATA PROTECTION ACT 1988 S3

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15A

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S16

CONSTITUTION ART 34.3.1

CONSTITUTION ART 40.3

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 41(2)(C)

NATIONALITY DECREES ISSUED IN TUNIS & MOROCCO 1923 PCIJ B04

NOTTEBOHM CASE (SECOND PHASE) (LIECHTENSTEIN v GUATEMALA) 1955 ICJR 4

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S14

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

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15(1)(A)

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15(1)(B)

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15(1)(C)

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15(1)(D)

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15(1)(E)

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47

SILVER v UNITED KINGDOM 1991 13 EHRR 582 1984 6 EHRR CD62

MINISTRE DE L'AGRICULTURE v DAME LAMOTTE UNREP 17.2.1950 (FRANCE) (TRANSCRIPT NOT AVAILABLE)

BROWN & BELL FRENCH ADMINISTRATIVE LAW 4ED 1993 162

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 263

TREATY OF ROME ART 230

IBM CORP v CMSN 1981 ECR 2639 1981 3 CMLR 635

GERMANY v CMSN 2002 ECR I-5606

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 20

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 21

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 22

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 23

ROTTMANN v FREISTAAT BAYERN 2010 QB 761 2010 3 WLR 1166 2010 AER (EC) 635 2010 3 CMLR 2

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 51

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 20(1)

IMMIGRATION LAW

Citizenship

Refusal - Minister - Reasons - Failure to provide reason for refusal - Whether Minister obliged to provide reason for refusal - Whether Minister had to have regard to European Union law in making decision - Pok Sun Shum v Ireland [1986] ILRM 593 followed; Rottmann v Freistaat Bayern [2010] QB 761 considered - Irish Nationality and Citizenship Act 1956 (No 26), ss 14, 15, 16 - Constitution of Ireland, 1937, Articles 34.3.1 and 40.3 - Charter of Fundamental Rights of The European Union, articles 41(2)(3), 47 and 51 - Treaty on The Functioning of The European Union, Articles 20, 21, 22, 23, 263 - European Convention on Human Rights and Fundamental Freedoms, article 13 - Relief refused ( 2009/492JR - Cooke J - 22/7/2011) [2011] IEHC 306

Mallak v Minister for Justice

1 JUDGMENT of Mr. Justice Cooke delivered the 22nd day of July, 2011

2 1. The applicant is a national of Syria who was declared to be a refugee in the State on the 22 ^nd November, 2002. On the 9 ^th December, 2005, he applied to the respondent for a certificate of naturalisation with a view to obtaining citizenship under s. 15 of the Irish Nationality and Citizenship Act 1956 (as amended). By letter of the 20 ^th November, 2008, the respondent refused that application. The refusal was expressed in these terms:-

"The Minister has considered your application under the provisions of the Irish Nationality and Citizenship Act 1956 and 1986, as amended and has decided not to grant a certificate of naturalisation. In reaching this decision, the Minister has exercised his absolute discretion, as provided for by the Irish Nationality and Citizenship Act 1956 and 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."

3 2. Clearly, therefore, the Minister relied upon his absolute discretion in making that refusal and gave no reason for it. Subsequent steps taken on behalf of the applicant including the present proceedings by way of judicial review have been directed at compelling the respondent to give reasons for his refusal and challenging the legality of his decision not to do so. The applicant was particularly aggrieved by the fact that on the 8 ^th October, 2008, his wife was granted a certificate of naturalisation and he could see no reason why he should be differently treated.

4 3. Shortly after the refusal of the certificate, the applicant's solicitor wrote to the Minister requesting a statement of his reasons for the refusal in accordance with s. 18 of the Freedom of Information Act 1997 (as amended). By letter of the 26 ^th January, 2009, the solicitor was informed that a decision on the case had been made "in accordance with s. 18(2)" of that Act. This amounted to a refusal. That refusal was in turn the subject of a review by a more senior official of the Department who affirmed the original refusal of the request on the 6 ^th March, 2009. The applicant then applied by way of appeal to the Office of the Information Commissioner on the 19 ^th June, 2009. That appeal review confirmed that the original decision had been based on s. 18(2)(b) of the Act of 1997 and the appeal was rejected by a decision of a senior investigator on the 9 ^th February, 2010. The operative part of the decision was expressed in these terms: "Having carried out a review under s. 34(2) of the Freedom of Information Act 1997 (as amended) I hereby affirm the decision of the Department and find that it is not obliged to provide a statement of reasons under s. 18" (of the Act of 1997).

5 4. On the 27 ^th May, 2010, the applicant's solicitors directed their attention to the provisions of the Data Protection Act 1988 and applied under s. 3 of that Act to the respondent to be informed whether data was kept in respect of the applicant and if so, to obtain a description of that data. A dispute then arose as to the entitlement of the Department to refuse the request in reliance upon a particular provision of the Data Protection Act but ultimately, by letter of the 30 ^th August, 2010, the Department furnished the applicant's solicitor with a schedule of records listing the description of the data which effectively comprised the Department's file on the application for the certificate. In this schedule reference was made in the list to a "Garda Report". The applicant speculates that the reason for the refusal of the certificate is to be found in the contents of that report and the grounds now relied upon are effectively directed at the entitlement of the respondent to refuse the certificate in those circumstances and to refuse to either confirm or deny that the reason for the refusal relates to the content of the Garda Report.

6 5. By order of the Court of the 11 ^th May, 2009 (Peart J.) the applicant was granted leave to bring the present application for judicial review upon the grounds set out in para. 5 of the statement of grounds dated the 7 ^th May, 2009, and to apply for reliefs by way orders of certiorari quashing both the refusal of the certificate on the 20 ^th November, 2008, and the refusal to provide reasons in the decisions of the 26 ^th January, 2009, and the 6 ^th March, 2009.

7 6. By order of this Court of the 14 ^th March, 2011, the applicant was granted liberty to amend the statement of grounds so as to include relief by way of declarations that the conferring of an absolute discretion upon the respondent in ss. 15, 15A and 16 of the Act of 1956 was invalid as repugnant to Articles 34.3.1 and 40.3 of the Constitution and incompatible with the Charter of Fundamental Rights of the European Union.

8 7. The order permitting amendments added three new grounds:

9 (i) That the impugned provisions of the Act of 1956 were unconstitutional in that they ousted the jurisdiction of the Court to exercise its full original jurisdiction and power to review the legality of the exercise of the administrative or quasi-judicial function conferred on the respondent;

10 (ii) The said provisions have the effect of depriving the applicant as a third country national of access to European Union citizenship;

11 (iii) In conferring on the respondent power which has the effect of deciding to deny the applicant access to Union citizenship without any obligation to state reasons therefore, the provisions infringe Article 41(2), paragraph 3, of the Charter of Fundamental Rights.

12 8. As acknowledged by the parties in written legal submissions to the Court and reaffirmed in oral argument, these grounds give rise in effect to two questions which can be stated broadly as follows:

13 (a) Can the respondent, notwithstanding the wording of s. 15 of the Act of 1956, be compelled in law to state reasons for a refusal to grant a certificate of naturalisation and, if not, are the provisions in question incompatible with rights of protection exercisable by the applicant under constitutional law?

14 (b) In refusing a certificate of naturalisation and thus access to Irish citizenship, is the Minister obliged to take into account any provisions or principles of European Union law upon the ground that such a refusal also denies access to European Union citizenship?

15 9. There is, in the view of the Court, one general observation which must first be made by way of preface to any consideration of these issues. It is an exercise of the State's sovereign authority to decide which persons will be permitted to enter its territory and the terms and...