Omara v Minister for Justice and Equality

JurisdictionIreland
CourtHigh Court
JudgeMr Justice David Keane
Judgment Date19 Jan 2018
Neutral Citation[2018] IEHC 25
Docket Number[2016 No. 980 JR]

[2018] IEHC 25

THE HIGH COURT

JUDICIAL REVIEW

Keane J.

[2016 No. 980 JR]

BETWEEN
MOHAMED SAMIR SALEM OMARA
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT

Asylum, Immigration and Nationality - S.15A of the Irish Nationality and Citizenship Act, 1956 - Naturalization application process - Failure to produce affidavit - Withdrawal of Invitation - Citizenship ceremony - Subsisting marriage - Legitimate expectation

Facts: The applicant sought an order of certiorari for quashing the decision of the respondent who expressed its inability to further process the applicant's application for naturalization under s. 15A of the Irish Nationality and Citizenship Act, 1956. The applicant contended that the respondent had breached the legitimate expectation of the applicant and wrongly relied on the ground of absence of a subsisting marriage between the applicant and his spouse.

Mr. Justice David Keane refused the applicant's application. The Court held that the applicant's arguments were of no real value. The Court opined that the applicant had failed to cite the relevant authority and acted contrary to the requirement under the Code of Conduct of the Bar of Ireland. The Court held that the applicant had failed to furnish the relevant affidavit as directed by the respondent. The Court, however, directed the legal representatives of the applicant to make representation as to why a wasted costs order should not have been made against them as they had filed the present proceedings without reference to any statutory authority.

Ex tempore JUDGMENT of Mr Justice David Keane delivered on 19 January 2018
Preliminary
1

This judgment is given ex tempore in accordance with the principles summarised by Humphreys J in Walsh v Walsh (No. 1) (Unreported, High Court, 2 February, 2017), [2017] IEHC 181 and, in particular, subject to the safeguard described by Munby LJ in In re A. and L. (Children) [2011] EWCA Civ. 1611 (at para. 47) and noted by Humphreys J (at paras. 15-16) whereby the parties will have the ability and, indeed, the duty to seek further elaboration or explanation from the court if they feel that something is missing.

Introduction
2

The applicant ("Mr Omara") seeks an order of certiorari quashing the decision of the respondent ("the Minister"), dated 20 September 2016, expressing an inability to further process Mr Omara's application for naturalisation as the spouse of an Irish citizen, under s. 15A of the Irish Nationality and Citizenship Act 1956, as amended ("the Act of 1956") because Mr Omara could not provide an affidavit that the Minister had requested on 8 September 2016 averring to the continuing subsistence of the couple's marriage at that time.

3

By Order of the Court made by O'Regan J on 30 January 2017, Mr Omara had also been given leave to seek a declaration that the said application for naturalisation "has been granted subject to his attendance at and participation in a citizenship ceremony." Very wisely, Counsel for Mr Omara expressly withdrew that application in the course of his Reply at the hearing of the application.

Background
4

The relevant facts are these. Mr O'Mara is an Egyptian national who submitted an application for naturalisation under s. 15A of the Act of 1956 on 20 January 2016. Mr Omara married an Irish citizen on 23 May 2012 and has been resident in County Down since in or about January 2013. There is one child of the marriage, a daughter born in Belfast on 20 November 2014.

5

As part of the prescribed application form under s. 15A of the Act of 1956, Mr Omara's Irish citizen spouse made the following declaration on 20 January 2016:

"I Tina Rose Omara do solemnly and sincerely declare that I married Mohamed Samir Salem Omara on the 23/05/2012 at Cairo in Egypt and that we are living together as husband and wife, that our marriage is subsisting and that no proceedings for divorce or annulment of this marriage have been commenced, or are about to be commenced in any court of law. I declare that my spouse was born on 10/11/1983 at Monofiya in Egypt a national of Egypt and I make these solemn declarations conscientiously believing the same to be true and by virtue of the Statutory Declarations Act 1938, as amended by the Civil Law (Miscellaneous Provisions) Act 2008."

6

The Irish Naturalisation and Immigration Service ("the INIS") wrote to Mr Omara on 23 August 2016, stating - in material part - that the Minister proposed to grant his application, "subject to the successful completion of the application process." On 2 September 2016, the INIS again wrote to Mr Omara, informing him that the Minister intended to grant his application for a certificate of naturalisation at a citizenship ceremony at the National Convention Centre in Dublin on 19 September 2016, at which Mr Omara would be required to make the prescribed declaration of fidelity to the nation and loyalty to the State.

7

Evidently without Mr Omara's knowledge, the Minister subsequently received an e-mail dated 4 September 2016, which purported to be from Mr Omara's Irish citizen spouse. It states in relevant part:

"I am sending you a email to let u know that me and my husband are no longer together. We are planning to get a divorce and we had applied for the Irish nationality and citizenship through marriage."

It was followed by an undated letter to the same effect, that was received at the Department of Justice and Equality on 7 September 2016.

8

On 8 September 2016, the INIS wrote to Mr Omara stating:

"You were recently issued with an invitation to attend the Citizenship Ceremony taking place on 19/09/2016 in Dublin. However, I am to inform you that this invitation has now been withdrawn and you should not attend the Citizenship Ceremony on this date."

The invitation has been withdrawn as your application for naturalisation now requires further consideration and case assessment.

I would be obliged if you could forward a Sworn affidavit signed by you and your spouse that you are in a subsisting marriage on that date.'

9

Mr Omara e-mailed the INIS in response on 17 September 2016, stating (in terms that have been slightly corrected for clarity):

"Hello my name is Mohamed and I have been [married to] an Irish citizen for over 3 years and we have [a two-year old daughter] and [I have applied] for Irish naturalization through marriage and I got the invitation [letter] after [paying] the fee but 10 days before my ceremony me and my wife [argued] together and one week before my ceremony I [received a letter withdrawing] my invitation to my ceremony [pending receipt of an] affidavit [that would] have to be [sworn] by me and her [before a suitably qualified person] and she didn't want to do it so can you help me plz for any solution??? Thanks."

10

The Minister received another e-mail and, subsequently, another letter from the person purporting to be Mr Omara's spouse, each dated the 18 September 2016 and both in broadly similar terms. The relevant part of the e-mail states:

"I WILL NOT be sending an affidavit as we are no longer together and I have started divorce proceedings. As he only stayed with me to get this citizenship. He has sent the money for the certificate of naturalisation €950 by banker (sic) draft. He would like his money back as he can't proceed as I'm refusing to lie on affidavit for him."

11

This train of correspondence culminated in the decision under challenge, which was communicated in a letter dated 20 September 2016 from the INIS to Mr Omara. In relevant part, it states:

"On the basis that you cannot provide a Sworn Affidavit to support your section 15A application, we are no longer able to process your citizenship application.

It is open to you to lodge a new application if and when you are in a position to meet the statutory requirements applicable at that time."

12

It is common case that Mr Omara never afterwards furnished the affidavit or affidavits requested. Counsel for Mr Omara conceded that he and his Irish citizen spouse are no longer living together while asserting, on the basis of his instructions (although it was not in evidence), that their marriage continues to subsist in that it has neither been dissolved nor annulled.

Procedural Background
13

By Order of the Court made by O'Regan J on 30 January 2017, Mr Omara was given leave to seek the reliefs already described on the following grounds:

(i) The Minister breached Mr Omara's legitimate expectation that his application for naturalisation had been, or would be granted, subject to his attendance at and participation in a citizenship ceremony.

(ii) The Minister has erred in law with respect to the concept of a "subsisting marriage" and thereby acted in error, unreasonably or irrationally, in basing her decision on the ground that Mr Omara was not in a subsisting marriage or that he had not provided sufficient evidence in that regard.

(iii) The Minister was acting ultra vires her powers in purporting to re-open Mr Omara's application for naturalisation for "further consideration and case assessment" in her letter of 8 September 2016, and/or in refusing Mr Omara's application for naturalisation in her letter of 20 September 2016.

(iv) The Minister breached fair procedures, either per se by reason of re-opening Mr Omara's application for naturalisation after he had been invited to attend a citizenship ceremony; and/or in failing to put to Mr Omara for comment the information upon which such decision was based.

Law
14

Section 15A of the Act of 1956 provides in material part as follows:

"(1) ...[T]he Minister may, in his or her absolute discretion, grant an application for a certificate of naturalisation to the non-national spouse or civil partner of an Irish citizen if satisfied that the applicant-

...

(c) and that citizen-

(i) are married to each other, have been married to each other for a...

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