Martins v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 02 May 2018
• Neutral Citation: [2018] IEHC 268
• Docket Number: [2017 No. 483 JR]
• Court: High Court
• Date: 02 May 2018

BETWEEN

SIDNEI DE OLIVEIRA MARTINS

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2018] IEHC 268

[2017 No. 483 JR]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – s. 15 of the Irish Nationality and Citizenship Act 1956 – Refusal to grant certificate of naturalisation – Definition of good character

Facts: The applicant sought an order of certiorari for quashing the decision of the respondent for refusing to grant a certificate of naturalisation to the applicant. The respondent contended that it was not satisfied that the applicant was a person of good character as the applicant had been in continuous breach of the immigration law of the State for several years prior to his application and remained so for some months afterwards.

Mr. Justice David Keane dismissed the applicant's application. The Court held that the decision of the respondent was reasonable and cogent. The Court found that the applicant had committed an offence of engaging in employment in the State without obtaining the appropriate form of permission to remain in the State. The Court observed that there was no fixed definition of the words 'good character' for the purposes of s.15 of the Irish Nationality and Citizenship Act 1956 and the meaning of those words should be taken according to the general object of the legislation.

JUDGMENT of Mr Justice David Keane delivered on 2 May 2018

Introduction

1 The applicant ("Mr Martins") seeks, principally, an order of certiorari quashing the decision of the respondent ("the Minister"), dated 13 March 2017, refusing to grant him a certificate of naturalisation under s. 15 of the Irish Nationality and Citizenship Act 1956, as amended ("the Act of 1956") because the Minister was not satisfied that Mr Martins was a person of good character as he had been in continuous breach of the immigration law of the State for several years prior to his application and remained so for some months afterwards. In addition to an order of certiorari, Mr Martins seeks a declaration that the said decision was made in breach of fair procedures and natural and constitutional justice.

2 Mr Martins did not apply for leave to seek judicial review of the Minister's decision until 9 June 2017, almost three months later. As it was then the Whit Vacation, the application was made to the duty judge and not in the Asylum List in the ordinary way. By Order made on that date, O'Connor J granted the applicant leave to seek the reliefs already described on the grounds set forth in his statement of grounds.

Background

3 Mr Martins was born on 28 February 1991 and is a national of Brazil. His father and mother, who are also both Brazilian nationals, arrived in Ireland from Brazil in 2005. His father obtained a work permit and his mother received permission to remain as his father's dependent.

4 It seems that Mr Martins arrived in the State from Brazil in 2008. He received the first of a succession of "stamp 3" residence permissions on 5 May 2008. The Irish Naturalisation and Immigration Service ("INIS") section of the Department of Justice website includes a web page on "permissions, stamps and conditions." It provides, as an example of a situation in which a "stamp 3" permission will be given, where an applicant has permission to join a non-EEA/EU/Swiss family member who has a work permit. In this instance, it would appear that Mr Martins was granted permission, as a minor, to join his father, who had a work permit, and his mother. In the summary of conditions attached to a "stamp 3" residence permission, the relevant web page states: "You cannot work or engage in any business, trade or profession."

5 Mr Martins applied for naturalisation under cover of a letter from his solicitors, dated 22 December 2015. That letter was not exhibited to the affidavit he swore on 8 June 2017 to ground his application for leave to seek judicial review, although it was subsequently exhibited on behalf of the Minister.

6 In the completed application form enclosed with that letter, Mr Martins had filled out the section on "means of support" by stating that he was employed. In response to the requirement to provide the name and address of his employer, he had handwritten the single word "WERS", before confirming in response to the next question that he had been employed there as a mechanic from 16 August 2012 to date.

7 In addition to the required application form, appropriate identification documentation and necessary payment, Mr Martins' solicitors also enclosed with that letter as "supporting documents": a letter from his employer Wheeley Environmental Refuse Services Limited (or "WERS"); copies of his payslips between August and December 2015; a copy of his most recent P60; copies of his bank statements for the preceding six months; a copy of each of the residence permissions stamped on his passport since his arrival in the State; and a printout of a screenshot from the Irish Naturalisation and Immigration Service ("INIS") web page containing its " naturalisation residency calculator" into which details of Mr Martins' eight consecutive residency permission stamps had been entered.

8 That was a remarkable combination of documents to submit in support of Mr Martins' application for naturalisation.

9 Each of the eight consecutive residence permissions stamped on Mr Martins' passport recites, in material part, that it is a permission "to remain in Ireland on condition that the holder does not enter employment". The printed screenshot of Mr Martins' entries on the naturalisation residency calculator confirms that each of the eight permissions he obtained was a "stamp type 3".

10 And yet, Mr Martins' application was also accompanied by a letter, dated 9 December 2015, from the financial controller of a waste services company, confirming that Mr Martins had been in its employment since 16 August 2012 and was anticipated to remain so for the foreseeable future. For good measure, a print out of the payslips that Mr Martins had received from that company each week between 28 August and 4 December 2015 was also included; as was Mr Martins' P60 certificate of pay, tax, pay-related social insurance, universal social charge and local property tax for the year ended 31 December 2014; and copies of his bank account statements for the period between 12 December 2014 and 13 October 2015, evidencing his receipt of wages from the company during that period.

11 Section 11 of the " Form 8 – application by a person of full age for naturalisation as an Irish citizen", prescribed in the schedule to the Irish Nationality and Citizenship Regulations 2011 ( S.I. No. 569/2011), is headed "Background" and is largely directed towards the criminal antecedents, if any, of the applicant concerned whether in Ireland or any other country. However, quite apart from accomplished criminal convictions, it commences with the question at section 11.11: "Have you ever committed any offences against the laws of Ireland or any other country?", beside which the applicant ticked the box marked "No." Similarly, the final question (11.1) in that section is: "Have you engaged in any other activities that might indicate that you may not be considered a person of good character?" beside which the applicant, once again, ticked the box marked "No."

12 The cover letter from Mr Martins' solicitors went on to state:

"We affirm that we have previously acted in an application for naturalisation for the applicant's mother, Wania Aparacida De Oliveira Martins and we now enclose herewith a certified copy of the relevant naturalisation certificate. As indicated in Section 12.1 our client's application is based on his own residency and not his Irish associations and [we] write simply to put you on notice that his mother has been long term resident here and is now a naturalised Irish citizen."

13 Section 12 of the application form is headed "Application based on Irish associations", and contains the following requirement, at section 12.1: "If your application is based on your Irish descent or Irish associations, please give details below." On his application form, the applicant left the box provided for that purpose entirely blank.

14 In summary, as part of Mr Martins' application for naturalisation (which he expressly chose to base on the duration of his residence in the State and, by necessary implication, his good character, under s. 15 of the Act of 1956, and not on his Irish associations, under s. 16 of that Act), without comment or explanation, his solicitors provided the INIS with extensive evidence that for several years past he had been working in direct breach of his residence permission and was at that time continuing to do so.

15 It is just as remarkable, if not more so, that the unit or team within the INIS that dealt with Mr Martins' naturalisation application did not register that fact. Instead, in subsequent correspondence, it merely raised technical issues concerning the execution of the necessary statutory declaration and the form of signature on Mr Martins' Brazilian passport, which issues Mr Martins duly addressed.

16 On 6 September 2016, the INIS wrote to Mr Martins informing him that the Minister proposed to grant his application for naturalisation, subject to his successful completion of certain administrative formalities, including paying the appropriate fee and also making the necessary declaration of fidelity to the nation and loyalty to the State at a citizenship ceremony.

17 Then, on 27 September 2016, the penny finally dropped for the INIS when a Garda immigration officer carried out a joint inspection with an authorised officer or inspector of the Workplace Relations Commission ("WRC"), formerly the National Employment Rights Authority ("NERA"), at the premises of Mr Martins' employer. Although Mr Martins was not rostered to work that day, his employment ceased...