Muresan v Minister for Justice, Equality and Law Reform
 IEHC 348
THE HIGH COURT
IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15
IRISH NATIONALITY & CITIZENSHIP ACT 2001 S6
FREEDOM OF INFORMATION ACT 1997
IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15(1)(c)
IRISH NATIONALITY & CITIZENSHIP ACT 1956 S16(a)
IRISH NATIONALITY & CITIZENSHIP ACT 1956 S16(a)(3)
EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD V AG
POK SUN SHUM & ORS V IRELAND & ORS
MISHRA V MIN JUSTICE
TARA PROSPECTING LTD V MIN ENERGY
KHAN, R V HOME SECRETARY 1985 1 AER 40
SOFRONI V MIN JUSTICE UNREP PEART 9.7.2004
IMMIGRATION ACT 1999 S3(9)(b)(ii)
Judicial review - Asylum - Certificate of Naturalisation - Irish Nationality and Citizenship Act, 1956 - Whether the Minister impermissibly fettered the discretion conferred upon him in the matter of issuing a Certificate of Naturalisation.
Justice Michael Peart delivered the 2nd day of November 2004:
While these two cases are factually different, the same point of law arises in each, and for that reason, both cases have been argued together, and will both be the subject of this single judgment.
At issue is whether the Minister in the exercise of the "absolute discretion" conferred upon him in the matter of issuing a Certificate Of Naturalisation to a non-Irish citizen, has impermissibly fettered his discretion by too rigid an adherence to a policy adopted by him, not to take into account or reckon any period of time spent by an applicant in the asylum process prior to either a refusal or a withdrawal of such an application for asylum, when computing time spent in this country for the purpose of the application for a Certificate of Naturalisation.
By Order dated 12 th September 2003 in the Robert case, and by Order dated 23 rd September 2003 in the Muresan case, leave was granted in broadly similar terms. I will set out those terms by reference to the order in the Muresan case, as follows:
1. An Order of Certiorari quashing the Decision of the respondent of the 19 th August 2002 [in Robert case — 3 rdApril 2003] refusing the applicant a Certificate of Naturalisation pursuant to the Irish Nationality and Citizenship Acts 1956and 1986;
2. An Order remitting the applicant's application for a Certificate of Naturalisation made pursuant to the Irish Nationality and Citizenship Act 1956to the respondent in order that same be considered in accordance with law.
The usual other ancillary reliefs were also allowed.
I notice that in the case of Bernard Robert, the applicant was also allowed seek a declaration in the following terms:
"A Declaration that the respondent has unlawfully fettered his discretion and has acted ultra vires and arbitrarily and in breach of the applicant's right to fair procedures and natural and constitutional justice in refusing the applicant a Certificate of Naturalisation."
The Grounds permitted by the said orders, upon which the application for these reliefs can be made, differ to some extent between the two cases, but in reality there is no distinction which needs to be drawn between the two applications, and Counsel for the applicants has argued the cases, effectively one, while as appropriate drawing attention to the factual differences between the two. The principal grounds are that in making his decision, the Minister has acted in an arbitrary and unjust manner; has unlawfully fettered his discretion; has acted unlawfully and ultra vires in considering and relying on the applicants' period of residence as an asylum seeker as a basis for the refusal of a certificate of naturalisation; that the decision to refuse the certificate of naturalisation based upon the recommendation of his authorised officer amounts to an unlawful application of amending legislation; the applicants had a legitimate expectation that their applications would be processed and considered in accordance with the relevant statutory provisions; that any general policy applied by the respondent in consideration of applications for naturalisation which purported to take account of the fact that the applicants were asylum seekers during the qualifying period of residence in the State, amounts to an unlawful fettering of the Minister's discretion and disabled the respondent from exercising his discretion in accordance with law.
Mr Robert is a national of the Democratic Republic of Congo. He arrived in Ireland on the 4 th December 1995 and made an application for asylum which was refused in February 1998. He lodged an appeal.
However, on the 25 th July 1997 he became the father of an Irish born child, following the birth of his son on that date, and he thereupon withdrew his application for asylum, and applied for residency based on the birth of his son.
The documentation shows that he subsequently married one Nicole Adamo, an Angolan national on the 26th July 1999. She is not the mother of his son. His wife then gave birth to a daughter on the 28 thAugust 2000. He lives with his wife and daughter as a family unit.
In June 2001 Mr Robert was granted residency, and on the 4 thDecember 2001 (exactly 6 years after his first arrival in this country), he made an application for a Certificate of Naturalisation pursuant to the provisions of s. 15 of the Irish Nationality and Citizenship Act, 1956("the 1956 Act"). This application was acknowledged on behalf of the Minister by letter dated 12 th December 2001. Following that letter there was some communication between the Minister's office and the applicant in which certain additional information was sought and some was supplied. Eventually by letter dated 4 th April 2003, the Minister wrote to the applicant indicating that he had decided not to grant a Certificate of Naturalisation. By letter dated 27 th May 2003 solicitors acting on his behalf applied to the Department asking to be furnished with all documents relating to the case from 1 stJanuary 2002 to date. The file was released in full with the exception of a small number of documents, two of which were outside the date requested, and two from which some information was deleted. Among the documents provided is a copy of the recommendation to the Minister not to approve the granting of the Certificate to Mr Robert. The recommendation to the Minister is stated to be "on the basis that he [the Minister] is not satisfied to accept that the time spent in the asylum process should contribute towards the 5 year residence requirement for naturalisation since that period of residence was allowed solely for the purpose of making an asylum claim which was not pursued to a conclusion."
This applicant refers to this recommendation at paragraph 12 of his grounding affidavit, as well as another document provided, namely the summary of his application, in which it appears, he states, that it is clear that the official who prepared same is satisfied that he has complied with all the requirements specified in s. 15 of the 1956 Act, and that all the factual information is given and that there are no negative comments contained in the summary. Accordingly it is averred that the only reason for the refusal is on the basis that the respondent is not satisfied to accept that the time spent by the applicant in the asylum process in this State should contribute towards the five year residence requirement which is one of the conditions for naturalisation.
The applicant submits in his affidavit and through his Counsel that in so basing his decision the respondent has acted unlawfully and in an arbitrary, capricious and discriminatory manner and in breach of his right to fair procedures and natural justice, and also that in so doing the Minister has also purported to apply the provisions of a subsequent amendment to the legislation (a reference to s. 6 of the Irish Nationality and Citizenship Act. 2001) to this application notwithstanding the fact that his application was made some twelve months prior to the date on which those amending provisions were to come into force. He is referring to the amendment which provided that in respect of non-nationals who make an application for a certificate of naturalisation no period in s of which that person was an asylum seeker shall be reckoned in the calculation of the five year residency requirement. It is contended accordingly that the decision is unreasonable, irrational and perverse and amounts to a fettering of the respondent's discretion. He also claims to have had a legitimate expectation that his application would be dealt with under the legislative provisions in force at the time of his application.
There is also an averment as to the reason for some delay in bringing this application following the refusal decision on 4 th April 2003. It is alleged that it was not until the disclosure of all the documentation in July 2003 by the respondent following the application for documentation under the Freedom of Information Act, 1997that the reason for the refusal of the certificate of naturalisation became clear, and that further delay was...
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