A. P. v Minister for Justice and Equality (No.2)

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 02 May 2014
• Neutral Citation: [2014] IEHC 241
• Court: High Court
• Date: 02 May 2014

P (A) v Min For Justice (No 2)

JUDICIAL REVIEW

BETWEEN

A. P.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY (No.2)

RESPONDENT

[2014] IEHC 241

[No. 347 J.R./2013]

THE HIGH COURT

Judicial Review – Certificate of Naturalisation – Mandamus – Order of Certiorari – Quashing Order – Practice and Procedure - Irish Nationality and Citizenship Act 1956 – Evidence

Facts: This case concerned a challenge to a decision by the respondent refusing a certificate of naturalisation to the applicant. On the 13 ^th May 2013, leave to apply for judicial review was granted for a declaration that the failure by the respondent to disclose the reason for his decision was unlawful; an order of mandamus requiring the respondent to provide the respondent to provide the reason for his decision and an order of certiorari quashing the decision dated the 20th April, 2013, refusing to grant a certificate of naturalisation on the following grounds: (1) the refusal of the respondent to disclose his reason for refusing the applicant”s application for naturalisation was unlawful. It was claimed that this refusal was in breach of the applicant”s rights to fair procedures, to constitutional justice and to seek an effective judicial remedy. It prohibited the applicant from examining whether the refusal to grant him a certification of naturalisation was lawful, and impaired him bringing an effective application in the future; (2) The respondent”s reliance on the Freedom of Information Act 1997, as amended, as a basis for not disclosing any reason for the refusal of the applicant”s application for naturalisation was unlawful. In the case of Mallak v. Minister for Justice Equality and Law Reform, the Supreme Court had held that there remained an obligation on the respondent, as a matter of fairness, to disclose his reason for refusing naturalisation; (3) The applicant is a declared refugee and as such the respondent was obliged to comply with the rules of the Geneva Convention, including Article 34, as a matter of European Union law and should ‘as far as possible facilitate’ the naturalisation of the applicant; (4) The acquisition of Irish citizenship also constitutes the acquisition of European Union citizenship such that it is a matter covered by European Union law. The failure to provide the reason for the refusal of naturalisation was in breach of the Charter of Fundamental Rights including Article 41 thereof and the principles of European Union law.’ The respondent refuted the above allegations claiming that the respondent”s bona fide interest in the protection of the State”s legitimate interest justified the withholding of the reasons for the decision, notwithstanding any alleged prejudice to the applicant. The applicant contended that he was entitled to be informed of the reasons for the refusal of the grant of the certificate on the basis of the decision of the Supreme Court in Mallak v. The Minister for Justice Equality and Law Reform [2012] IESC 59. It was submitted by the respondent that a letter of the 30 ^th April 2013, clearly stated that he had decided not to disclose the reasons for his decision to the applicant having considered his obligations under the Freedom of Information Act, with particular reference to ss. 18, 24, 25 and 26. In this case no request under the Freedom of Information Act 1997 was made to the respondent by the applicant.

Held by Justice McDermott in light of the Irish Nationality and Citizenship Act 1956 and Mallak that the essential starting point for the consideration of judicial review was an understanding of the reason for the decision. Acknowledging that the respondent had failed to give one, Justice McDermott reasoned that based on the documents upon which the respondent had made his decision, he had been in a position to furnish a reason for the refusal of the certificate, namely, the failure on the part of the applicant to fulfil the ‘good character’ condition. Satisfied that there was nothing to inhibit the Minister from giving notice of his reason or his concerns about the character of the applicant, Justice McDermott accepted that a difficulty facing the respondent was that he did not wish to disclose the information upon which that recommendation or conclusion was based. In those circumstances, he acknowledged that the respondent was obliged having regard to Mallak to provide a justification for not doing so. Thus, Justice McDermott reasoned that any challenge to the conclusion reached in respect of the applicant”s good character or any justification proffered for refusing to give reasons for that justification could then be the subject of challenge, if that was considered appropriate. Determining that the uttermost transparency is required in such cases, Justice McDermott held that the respondent should have firstly, informed the applicant that the reason for the refusal of the certificate was that he had failed to fulfil the condition of ‘good character’ under s. 15(1)(b) of the Act. Secondly, he held that if it was considered appropriate to refuse to give any further reasons, a justification should have been furnished in that regard based on the fact that the recommendation was made on the basis of information which was properly the subject of privilege: a cryptic general reference to provisions of the Freedom of Information Act 1997 was, in this case, deemed insufficient. Consequently, the court made an order of certiorari quashing the decision of the respondent dated 30th April, 2012, refusing to grant a certificate of naturalisation to the applicant. Reasoning that the respondent was entitled to withhold material on the basis of public policy as recognised in Mallak, Justice McDermott nevertheless reasoned that it would be appropriate for a letter setting out the factors of which the court was now aware following the initiation of proceedings which would be sufficient to meet the case to be issued. Such evidence and clarification, it was determined was essential for a fair process. Finally, the court did not find it necessary to consider the submissions made that the refusal to provide reasons was contrary to Article 41 of the Charter of Fundamental Rights of the European Union or the principles of European Union law.

MALLAK v MIN FOR JUSTICE 2013 1 ILRM 73 2012/24/6926 2012 IESC 59

CONVENTION ON THE STATUS OF REFUGEES 1951 (GENEVA CONVENTION) ART 34

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 18

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 41

FREEDOM OF INFORMATION ACT 1997 S18

FREEDOM OF INFORMATION ACT 1997 S24

FREEDOM OF INFORMATION ACT 1997 S25

FREEDOM OF INFORMATION ACT 1997 S26

P (A) v MIN FOR JUSTICE & ORS UNREP MCDERMOTT 17.1.2014 2014 IEHC 17

FREEDOM OF INFORMATION ACT 1997 S24(3)

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

FREEDOM OF INFORMATION ACT 1997 S7

FREEDOM OF INFORMATION ACT 1997 S24(1)

FREEDOM OF INFORMATION ACT 1997 S7(1)

FREEDOM OF INFORMATION ACT 1997 S7(1)(A)

FREEDOM OF INFORMATION ACT 1997 S7(1)(B)

FREEDOM OF INFORMATION ACT 1997 S7(1)(C)

FREEDOM OF INFORMATION ACT 1997 S7(1)(D)

FREEDOM OF INFORMATION ACT 1997 S25(1)

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

B (A) v MIN FOR JUSTICE UNREP COOKE 18.6.2009 2009/4/839 2009 IEHC 449

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15(1)

1 1. This case concerns a challenge to a decision by the respondent refusing a certificate of naturalisation to the applicant. Leave to apply for judicial review was granted on the 13 ^th May, 2013, by this court for a declaration that the failure by the respondent to disclose the reason for his decision was unlawful; an order of mandamus requiring the respondent to provide the reason for his decision and an order of certiorari quashing the decision dated the 20 ^th April 2013, refusing to grant a certificate of naturalisation on the following grounds:

2 "1. The refusal of the respondent to disclose his reason for refusing the applicant's application for naturalisation was unlawful. It is inter alia in breach of the applicant's rights to lair procedures, to constitutional justice and to seek an effective judicial remedy. It prohibits the applicant from examining whether the refusal to grant him a certification of naturalisation is lawful, and impairs him bringing an effective application in the future.

2 The respondent's reliance on the Freedom of Information Act 1997, as amended, as a basis for not disclosing any reason for the refusal of the applicant's application for naturalisation is unlawful. In the case of Mallak v. Minister for Justice Equality and Law Reform, Mr. Mallak had requested the reason for the refusal of his application for naturalisation pursuant to the Freedom of Information Act, and this was refused by the respondent under the Act, but, nevertheless, the Supreme Court held that there remained an obligation on the respondent, as a matter of fairness, to disclose his reason for refusing naturalisation.

3 The applicant is a declared refugee. Article 34 of the Convention relating to the Status of Refugees ("the Geneva Convention") which Ireland has ratified, is headed "Naturalisation" and states: "The contracting States shall as far as possible facilitate the assimilation and naturalisation of refugees. They shall in particular make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings". Whilst Article 34 has not been incorporated directly into domestic law, the status of a refugee is now one covered by European union Law, and Article 18 of the Charter of Fundamental Rights provides: "The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of the 28 ^th July, 1951, and the protocol of the 31 ^st January, 1967, relating to the status of refugees and in accordance with the Treaty...