Rodis v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 24 June 2016
• Neutral Citation: [2016] IEHC 360
• Date: 24 June 2016
• Court: High Court
• Docket Number: [2013 No. 653 JR] [2013 No. 654 JR]

BETWEEN

FLORITA RODIS

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

BETWEEN

JENALYN TOLENTINO

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2016] IEHC 360

[2013 No. 653 JR]

[2013 No. 654 JR]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – The Irish Nationality and Citizenship Act 1956 – Refusal to grant certification of naturalisation – Judicial review – Certiorari – Expressio unius – Diplomatic Relations and Immunities Act 1967 – Vienna Convention on Diplomatic Relations, 1961 – The Interpretation Act 2005

Facts: Following the refusal of the respondent to grant the certification of naturalisation to the applicants on the basis that they were immune from immigration control as they were employed in embassies, the applicants now sought an order of certiorari for quashing the decision of the respondent in their respective case by way of commencement of two separate judicial review proceedings. The respondent contended that since the applicants' entitlement in the State arose under Vienna Convention on Diplomatic Relations, 1961, their stay did not constitute ‘residence’ within s. 15 (1) (c) of the Irish Nationality and Citizenship Act, 1956, under which the respondent had discretion to grant or refuse an application of naturalisation subject to fulfilment of five pre-conditions set out in the said Act of 1956.

Mr. Justice Richard Humphreys granted orders of certiorari and thus, quashed the decision of the respondent in each case. The Court also granted orders of mandamus thereby directing the respondent to reconsider the application of naturalization in each case in accordance with the present judgment. The Court held that express exclusion of the staff of diplomatic missions from requiring permission to stay in the State of Ireland under s. 2 of the Immigration Act, 2004, and non-ratification of optional protocol on the acquisition of nationality would lead to conclusion that the applicants were expression unius. The Court, however, opined that notwithstanding the lack of any provision for naturalisation under the Irish Nationality and Citizenship Act, 1956, to the persons in situation of the present applicants, it could not be held that the legislature intended to permanently exclude such persons from being naturalised. The Court found that there was nothing in the Vienna Convention of 1961 to prevent the applicant from applying for naturalisation. The Court found that the term “resident,” if interpreted ordinarily, would mean “to reside or dwell permanently for a considerable period of time at a particular place,” and thus, the applicants were resident in the State in the ordinary meaning of the term. The Court, therefore, held that the respondent had taken an erroneous view of the law, which was liable to be set aside.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 24th day of June, 2016

Facts in relation to Ms. Rodis

1 Ms. Rodis is a citizen of the Philippines who arrived in the State on a visitor's visa in April, 2006. She was given permission to remain until 30th June, 2006. She began work for the Argentinian mission in September, 2006.

2 She was engaged by the Embassy of Argentina as a member of the domestic staff of the mission, carrying out work as a cook and cleaner at the Ambassador's residence on Simmonscourt Road and at the Embassy on Ailesbury Road. The Minister for Foreign Affairs was notified of the appointment on 25th October, 2016.

3 On 20th November, 2006, she was given an endorsement of her passport confirming her entitlement to stay in Ireland while in the employment of the Argentinian embassy, which was renewed from time to time.

4 On 10th April, 2013, she wrote to the Minister for Justice and Equality essentially inquiring as to whether she would qualify for naturalisation.

5 On 27th May, 2013, the Minister replied indicating that the period during which the applicant was working for a diplomatic mission would be treated as absence from the State because she was exempt from immigration control.

6 On 27th August, 2013, the applicant commenced the present judicial review proceedings. Leave was granted by Herbert J.

7 The matter was listed for hearing on 25th March, 2015 before Mac Eochaidh J., who expressed concern that no formal application for naturalisation has been made. The matter was adjourned to enable that to be done.

8 On 11th September, 2014, the applicant lodged an application for a certification of naturalisation.

9 A submission was made to the Minister recommending refusal on 10th June, 2015, and a decision was made to refuse the application on 16th July, 2015. This was embodied in a letter dated 28th July, 2015. The hearing then resumed before me on the basis of an amended statement of grounds challenging this latter decision also.

Facts in Relation to Ms. Tolentino

10 Ms. Tolentino arrived in the State on a visitor's visa in December, 2007. She began work in the Finnish Embassy in January, 2008, within the duration of her visitor's visa. Thus she was never unlawfully in the State. On 26th January, 2008, the Embassy of Finland notified the Department of Foreign Affairs of her engagement as a member of the domestic staff of the Embassy.

11 On 1st March, 2008, she received an endorsement on her passport confirming she had permission to stay in Ireland while a member of diplomatic staff, which was renewed from time to time.

12 On 19th April, 2013, she sought confirmation from the Minister that she could apply for naturalisation. This was declined by letter dated the 27th May, 2013 and on 27th August, 2013, she applied for leave to seek judicial review. McGovern J. directed that the leave application be made on notice, and that application came before Mac Eochaidh J. on the basis of a telescoped hearing on 25th March, 2014. The matter was then further adjourned to enable a formal application for naturalisation to be made.

13 The application was made on 11th September, 2014. A submission to the Minister recommending refusal was made on 10th June, 2015. The application was refused on foot of that submission on 16th July, 2015. This was embodied in a letter dated 31st July, 2015. As with Ms. Rodis, the hearing then resumed before me on the basis of an amended application challenging this latter decision also.

14 Given that the case was being heard with that of Ms. Rodis, it seemed desirable that both should be dealt with procedurally on a similar basis, and therefore on 27th April, 2016 I granted leave to Ms. Tolentino to seek judicial review in accordance with her amended stated of grounds, so that both actions could then proceed on the same procedural footing, namely as a substantive hearing. There are now before me, therefore, substantive notices of motion in both cases.

Was the application refused on the basis of absolute discretion or failure to meet pre-conditions?

15 While the decisions refer to both absolute discretion and a failure to meet the pre-conditions, there is little doubt but that in substance they were a threshold rejection of each application for failure to meet the residence condition. In the course of his very learned and helpful submissions, Mr. Eoghan Fitzsimons S.C. (with Ms. Sinéad McGrath B.L.) for the respondent accepted that this is the case.

16 The situation is similar to that in A.B. v. Minister for Justice, Equality and Law Reform [2009] IEHC 449 (Unreported, High Court, Cooke J., 18th June, 2009) where at para. 15 it was noted that in that case, a decision while phrased in terms of absolute discretion was not really based on such discretion, but rather on a failure to comply with conditions. That case also noted that the reasons for non-compliance with conditions needed to be stated in a refusal decision, which was required even before a wider requirement for reasons was introduced in Mallak v. Minister for Justice and Equality [2012] 3 I.R. 297 (Fennelly J.).

Are the refusals invalid because the Minister has introduced a new condition thereby fettering her discretion?

17 Mr. Colm O'Dwyer S.C., (with Ms. Patricia Brazil B.L.) for the applicants submits that the Minister has introduced a new condition into the process for application for naturalisation and thereby unlawfully fettered her discretion.

18 This submission is misconceived because the Minister has not done that. She has simply construed the existing statutory condition in a particular way. The issue is whether that construction is correct as a matter of law, or not.

Are the refusals invalid by reason of discrimination as against other applications granted in similar circumstances?

19 Mr. O'Dwyer submits that at least two other members of staff of different Embassies in Ireland have been naturalised, a state of affairs which is inconsistent with the Minister's current position. Mr. Fitzsimons replies that the State are strangers to this situation, and no details have been provided, but that if this happened it ‘would clearly be in error and would require investigation’.

20 To my mind, that is a reasonable explanation for any possible inconsistent decision. The applicants have certainly failed to demonstrate that they have been improperly discriminated against, even if it be the case that a limited number of other persons have (accidentally) been given citizenship in similar situations.

21 The State's position is that if any other persons so benefitted, this was a mistake (in the sense of being unintentional, rather than of being contrary to law, which issue I will turn to later). Certainly, the making of one mistake does not create a legal entitlement for others to benefit from that mistake. There is no ‘principle of continuity’ that amounts to an entitlement to keep getting away with what you or others have been getting away...