AP v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: O'Donnell J.,Mr Justice Clarke
• Judgment Date: 31 May 2019
• Neutral Citation: [2019] IESC 47
• Court: Supreme Court
• Docket Number: [S:AP:IE:2018:000074],[S.C. No. 74 of 2018]
• Date: 31 May 2019

Between/

A.P.

Applicant/Appellant

AND

The Minister for Justice and Equality

Respondent

[2019] IESC 47

O'Donnell Donal J.

Clarke C.J.

Clarke C.J.

O'Donnell J.

Dunne J.

O'Malley J.

Finlay Geoghegan J.

[S:AP:IE:2018:000074]

Record No. 74/2018

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Naturalisation – Privilege – Disclosure – Appellant seeking to challenge the respondent’s decision refusing naturalisation – Whether the decision not to disclose further reasons had been justified

Facts: The appellant sought to challenge a decision of the respondent, the Minister for Justice and Equality, of 1 September 2014, refusing naturalisation where the information relied upon was subject to a valid claim of privilege, and, moreover, where the reason given for the decision was that it was based upon information which it was not possible to disclose. The High Court upheld the approach of the Minister by judgment of Stewart J of 19 July 2016, stating that the “applicant has failed to discharge the burden of proving that there was an error in the decision-making process engaged in by the respondent in this case.” On appeal to the Court of Appeal, the judgment of the High Court was upheld in the judgment of Gilligan J. In a separate judgment, Hogan J considered that the nature of the public interest in security was such that immunity could properly be claimed and that consequently no claim could be made that the decision of the Minister was contrary to law despite the absence of an opportunity for the applicant to contest any material put forward for ministerial decision. The appellant appealed to the Supreme Court, contending that the reasons given were insufficient, that it ought to have been possible to offer to provide the gist of the information relied upon, and, if necessary, a special advocate procedure ought to have been adopted.

Held by O’Donnell J that he agreed with the approach set out at para. 5.18 of the judgment of the Chief Justice in the Court that, “in principle, it would at least be possible to put in place an enhanced process by which an independent assessment could be made as to whether any version of the information could be provided in a way which would not affect State interests to the extent that disclosure should not be required at all”. O’Donnell J held that such a process of advice from an independent person with access to the information, which in this case had been seen already by a judge of the High Court, would itself also enhance confidence in any decision made. In those circumstances, O’Donnell J came to the conclusion that it could not be said that the decision not to disclose further reasons had been justified.

O’Donnell J held that the appeal should be allowed and that the decision of 1 September 2014 must be quashed.

Appeal allowed.

Judgment of O'Donnell J. delivered the 31st day of May, 2019.

Introduction

1 Under s. 15 of the Irish Nationality and Citizenship Act 1956 (as amended) (‘the 1956 Act’), the Minister for Justice and Equality (‘the Minister’) may, in his or her absolute discretion, grant a certificate of naturalisation to a person if satisfied that the applicant complies with certain statutory conditions, any of which may be waived by the Minister in circumstances themselves set out in the statute. The satisfaction of the statutory conditions (or satisfaction subject to waiver of some or all of the conditions) does not give rise to an obligation on the Minister to grant any application. Rather, satisfaction of the conditions or permitted waiver allows the Minister to exercise the absolute discretion conferred by statute as to whether or not to grant the certificate of naturalisation.

2 The origin of the procedure, and the extremely broad discretion conferred upon the Minister, lies in some fundamental conceptions of sovereignty. It is a basic attribute of an independent nation that it determines the persons entitled to its citizenship. A decision in relation to the conferral of citizenship not only confers the entire range of constitutional rights upon such a person, but also imposes obligations on the State, both internally in relation to the citizen, and externally in its relations with other states.

3 This case raises a very difficult issue, which is by no means unique to this jurisdiction, in that it is sought to challenge a decision to refuse naturalisation where the information relied upon is subject to a valid claim of privilege, and, moreover, where the reason given for the decision is that it was based upon information which it is not possible to disclose. It is apparent that the issue raised is one of real difficulty, and may also arise outside the field of citizenship. It has been encountered in other jurisdictions in criminal prosecutions, in challenges to arrests or the issuance of warrants, in deportation decisions, and in cases in which orders are made restricting a person's movement within a state, where such restriction is permitted by law. It can also arise in employment decisions and in other civil claims. A wide range of arguments drawing on materials from variants of all legal systems in the Western world, along with the case law of the European Court of Human Rights and the Court of Justice of the European Union, were addressed by both parties. No consensus can be identified, and no rule of universal application has emerged. In those circumstances, it is, in my view, a counsel of prudence to proceed cautiously and incrementally, and to consider the matter solely within the already difficult and somewhat unique legal context in which it properly arises for decision in this case: that is, the nature of the obligation to give reasons in cases where a certificate of naturalisation is refused under the provisions of the 1956 Act. It is obvious that a consideration of these issues may raise further questions about other closely related issues, such as the obligation to disclose information in advance of a decision being made, or claims that documents can be withheld for disclosure or production in legal proceedings on grounds that their disclosure would damage the legitimate interests of the State. However, these are strong currents running in a direction which is not easy to chart, and in such circumstances, there is much wisdom in the Chinese advice to ford the river by feeling the stones.

The facts and proceedings to date

4 Mr. P. (referred to hereinafter, where convenient, as the applicant), is an Iranian national who arrived in the State in October 1989 and was granted refugee status in December 2001. He has resided in the State since then, and has two children born in Ireland, who are Irish citizens. Prior to the application the subject of these proceedings, he had made four previous applications for a certificate of naturalisation, all of which had been refused.

5 The most recent application was made by Mr. P. on 23 August 2011. Eventually, on 30 April 2013, the Minister issued a decision refusing to grant him a certificate of naturalisation. The Minister provided no reason for the refusal of the application, relying in this regard on certain provisions of the Freedom of Information Act 1997 (as amended) (‘the 1997 Act’) for so doing.

6 The decision of the Minister was made shortly after the delivery of the unanimous decision of this court in Mallak v. Minister for Justice [2012] IESC 59, [2012] 3 I.R. 297, where the Minister had refused an application for naturalisation, and had equally refused to provide reasons for that decision, contending he was not obliged to do so in law. That contention was upheld in the High Court, and but reversed by this court. The Supreme Court held that, notwithstanding the fact that the Minister was entitled to make a decision in his or her absolute discretion, that did not mean that he or she was not obliged to give a reason. It was said that the rule of law required all decision-makers to act fairly and rationally, meaning that they must not make decisions without providing reasons.

7 As already noted, in the decision of 30 April 2013, the Minister sought to rely on the provisions of the 1997 Act to refuse to provide more detailed reasons. This decision was challenged in the High Court by way of judicial review seeking an order of certiorari quashing the Minister's decision, and an order of mandamus requiring the Minister to provide reasons for his decision. In the course of those proceedings, an affidavit was filed on behalf of the Minister by Mr. John Kelly, an assistant principal officer in the citizenship section of the Department of Justice and Equality (‘the Department’), referring to the existence of certain confidential documents concerning the application and Mr. P's background, which were described, respectively, as documents A, B and C. It was acknowledged that those documents, over which the Minister asserted public interest privilege, formed the basis for the Minister's refusal to grant a certificate of naturalisation. That privilege was challenged on behalf of Mr. P.

8 In a judgment delivered by McDermott J. on 17 January 2014 (see [2014] IEHC 17), the documentation on which the Minister relied was reviewed and inspected by the judge and the claim of public interest privilege examined. It was held that document A should be disclosed in full, document B should be disclosed in redacted form, and it was in the public interest that the Minister's claim of privilege over document C should be upheld in its entirety. This decision was not appealed in those proceedings. The disclosed documents indicated that a recommendation had been made to the Minister that Mr. P. should not be granted a certificate of naturalisation on grounds that the Minister could not be satisfied that he met the good character requirements in s. 15(1)(b) of the 1956 Act.

9 Thereafter, there was a hearing of the substantive judicial review proceedings by the same...