N (A) . v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: MS. JUSTICE M. H. CLARK,
• Judgment Date: 29 July 2009
• Neutral Citation: [2009] IEHC 354
• Court: High Court
• Date: 29 July 2009

[2009] IEHC 354

THE HIGH COURT

[No. 1204 J.R./2008]

N (A) v Minister for Justice

[2009] IEHC 354

JUDICIAL REVIEW

BETWEEN

A.N.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15A

M (K) & G (D) v MIN FOR JUSTICE & ORS UNREP EDWARDS 17.7.2007 2007/38/7754 2007 IEHC 234

PHILLIPS v MEDICAL COUNCIL 1992 ILRM 469 1992/4/910

O MURCHU v CLARAITHEOIR NA GCUIDEACHTAI 1980-1998 IR (SR) 112 1990/8/2171

HALOWANE v MIN FOR JUSTICE UNREP FINLAY-GEOGHEGAN 30.7.2008 2008/28/6064 2008 IEHC 280

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

CONSTITUTION ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15

IMMIGRATION

Citizenship

Judicial review - Application for costs - Applicant seeking to compel respondent to provide him with timeline for determination of application for citizenship - Leave granted - Applicant subsequently granted citizenship - Applicant's proceedings withdrawn on applicant's view that matter moot - Applicant asserting prejudice due to inability to vote - Failure to inform respondent of any special circumstances - Separation of powers - Whether entitlement to apply for naturalisation constitutional or statutory - Whether naturalisation a right or privilege - Whether applicant for citizenship could enjoy personal rights prior to grant of citizenship - Whether appropriate to direct respondent to carry out discretionary functions within given time limit - M (K) v Minister for Justice, Equality and Law Reform [2007] IEHC 234 (Unrep, Edwards J, 17/07/2007), Phillips v Medical Council [1992] ILRM 469, Ó Murchú v Registrar of Companies [1988] IR 112 and Halowane v Minister for Justice, Equality and Law Reform [2008] IEHC 280 (Unrep, Finlay Geoghegan J, 30/07/2008) distinguished - Irish Nationality and Citizenship Act (No 26), s 15A - Applicant refused costs, discretion to make no order for costs in favour of respondent exercised (2008/1204JR - Clark J - 29/7/2009) [2009] IEHC 354

N (A) v Minister for Justice, Equality and Law Reform

Facts section 15 of the Irish Nationality and Citizenship Act 1956, as amended, provides, inter alia, that "the Minister may, in his absolute discretion, grant a certificate of naturalisation" to an applicant therefor. The applicant had applied for a certificate of naturalisation following his marriage to an Irish citizen. After a delay of over a year, the applicant wrote to the respondent enquiring as to when he could expect a decision on the said application. The respondent made no response thereto. The applicant then sought and was granted leave to seek an order of mandamus compelling the respondent to make a decision on the said application within a reasonable period of time and/or to indicate when such a decision would be forthcoming. Shortly thereafter, the respondent granted the applicant a certificate of naturalisation. The applicant sought his costs in relation to the judicial review proceedings upto that point. The respondent, in turn, sought his costs of the proceedings as against the applicant.

Held by Harding Clark J in making no order as to costs that the proceedings were inappropriate and unreasonable as no valid reason had been advanced by the applicant to insist on the consideration of his application for naturalisation before the period identified by the respondent as being likely for the application to process. That, absent cogent evidence of arbitrary or capricious behaviour in the consideration of applications for naturalisation, it was inappropriate to direct a Minister to carry out his discretionary functions within any particular time limit as to do so would encroach upon the constitutionally recognised and protected doctrine of the separation of powers between executive and judicial functions. While all persons in the State enjoyed fundamental rights of access to the courts, that right was not unqualified and was subject to imposition of a penalty of costs incurred if those proceedings had been inappropriately commenced.

M. (K.) v. Minister for Justice [2007] IEHC 234 distinguished.

Reporter: P.C.

1 This is an application for costs in respect of a decision of Edwards J. to grant an order of mandamus to the applicant requiring the Minister for Justice, Equality and Law Reform to make a determination with respect to the applicant's application for a certificate of naturalisation. Ms. Alice Fawsitt S.C. appeared for the applicant and Ms. Emily Farrell B.L. appeared for the respondent. The hearing took place at the Kings Inns in Court No. 1 on the 26 ^th June, 2009.

Background

2 The applicant is a national of Pakistan. He entered the State on a student visa in 2002 and he attended at Cork Institute of Technology. He had a valid Pakistani passport. After he completed his studies he was granted a work permit. He began running a restaurant. He married an Irish citizen while in the State in April, 2004. He was granted Stamp 4 residency as the spouse of an Irish citizen. In August, 2005 his wife gave birth to their child.

3 The applicant lodged an application for a certificate of naturalisation in June, 2007, pursuant to s. 15A of the Irish Nationality and Citizenship Acts 1956-2004. He provided an amount of documentation in support of his documentation. Receipt was acknowledged and the application was deemed valid on the 4 ^th September, 2007. The letter of acknowledgment advised the applicant not to address the matter as this would delay the process. Nothing further happened.

4 More than a year later, after the decision of Edwards J. in K.M. and G.D. ("Mobin") v. The Minister for Justice, Equality and Law Reform [2007] I.E.H.C. 234, two letters were sent to the Minister asking for an indication as to when the application would be decided. No response was received to the first letter. The Minister was then informed that proceedings would be commenced if a satisfactory response was not received and if the application was not determined within a reasonable time. On the 23 ^rd October, 2007, the applicant was informed in response to the second letter that there was a backlog and it would take 29 months to process an application for a certificate of naturalisation. This would mean that the applicant would have a decision in November, 2009.

5 Proceedings were issued on the 30 ^th October, 2007 seeking an order of mandamus directing the Minister to determine the application for a certificate of naturalisation within a period of time to be determined by the Court. In October, 2008 Edwards J. granted leave on an ex parte basis, stating that it was arguable that the Minister is obliged to deal with applications expeditiously and within a reasonable time. The relief sought was an order requiring the Minister to indicate to the applicant how long it would take for his application to be decided. The application was processed immediately thereafter and the Minister granted the applicant a certificate of naturalisation in February, 2009. He has been granted an Irish passport.

6 After the applicant was granted a passport his solicitors wrote to the Minister seeking clarification as to what would happen to the proceedings, which were declared to be moot in the light of the making of a certificate of naturalisation. It was suggested (without prejudice) that the proceedings be struck out with costs for the applicant. No response was received to that letter. Further letters were sent. On the 9 ^th March, 2009 the matter came before the Court with counsel for the applicant seeking an order for costs. The matter came before the Court again the following week on the 16 ^th March, 2009 and the State confirmed that they wanted their costs.

SUBMI...