Salman v Min for Justice

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 16 December 2011
• Neutral Citation: [2011] IEHC 481
• Court: High Court
• Date: 16 December 2011

[2011] IEHC 481

THE HIGH COURT

[No. 425 JR/2011]

Salman v Min for Justice

[2011] IEHC 481

JUDICIAL REVIEW

BETWEEN

DANA SALMAN

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15

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

N (A) v MIN FOR JUSTICE UNREP CLARK 29.7.2009 2009/41/10279 2009 IEHC 3

CONSTITUTION ART 9.1.2

IRISH NATIONALITY & CITIZENSHIP ACT 1986 S4

LAURENTIU v MIN FOR JUSTICE & ORS 1994 4 IR 26

BERKU v MIN FOR JUSTICE & ORS UNREP COOKE 12.10.2011 2011 IEHC 381

HUSSAIN v MIN FOR JUSTICE & ORS UNREP HOGAN 13.4.2011 2011 IEHC 171

O'NEILL & QUINN v GOVERNOR OF CASTLEREA PRISON & ORS 2004 1 IR 298

EAST DONEGAL CO-OPERATIVE v AG 1970 IR 317

R v TOWER HAMLETS LONDON BOROUGH COUNCIL EX PARTE CHETNIK DEVELOPMENTS LTD 1988 AC 858

WADE ON ADMINISTRATIVE LAW 5ED 335

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

NEARING v MIN FOR JUSTICE 2010 4 IR 211

MATTA v MIN FOR JUSTICE & ORS UNREP CLARK 21.7.2010 2010/33/8323 2010 IEHC 488

SALEEM v MIN FOR JUSTICE UNREP COOKE 2.6.2011 2011 IEHC 223

IMMIGRATION LAW

Naturalisation

Mandamus - Public power granted by statute - Order compelling respondent to issue decision on naturalisation application - Duty to act in accordance with law - Duty to make decision in reasonable time - Delay - Executive discretion - Costs - Whether delay unreasonable - Whether mandamus appropriate - Whether ministerial discretion subject to rule of law - Nawaz v Minister for Justice (Unrep, HC, Clarke J, 29/7/2009); Laurentiu v Minister for Justice, Equality and Law Reform [1994] 4 IR 26; Berkut v Minister for Justice, Equality and Law Reform (Unrep, HC, Ryan, 12/10/2011); Hussain v Minister for Justice, Equality and Law Reform [2011] IEHC 171, (Unrep, HC, Hogan J, 13/4/2011); O'Neill v Governor of Castlerea Prison [2004] IESC 7 & 73, [2004] 1 IR 298; R v Tower Hamlets London Borough Council [1988] AC 858; K(M) v Minister for Justice, Equality and Law Reform [2007] IEHC 234, (Unrep, HC, Edwards J, 17/7/2007); Nearing v Minister for Justice, Equality and Law Reform [2009] IEHC 489, [2010] 4 IR 211; Matta v Minister for Justice and Law Reform [2010] IEHC 488, (Unrep, HC, Clarke J, 21/7/2010) and Saleem v Minister for Justice, Equality and Law Reform [2011] IEHC 223, (Unrep, HC, Cooke J, 2/6/2011) considered - Irish Nationality and Citizenship Act 1956 (No 26), s 15 - Irish Nationality and Citizenship Act 1986 (No 23) - Irish Nationality and Citizenship Act 1994 (No 9) - Irish Nationality and Citizenship Act 2001 (No 15) - Irish Nationality and Citizenship Act 2004 (No 38) - Constitution of Ireland, 1937, Art 9.1.2 - United Nations Convention on the Status of Refugees and Stateless Persons 1951, art 34 - Costs awarded (2011/425JR - Kearns P - 16/12/2011) [2011] IEHC 481

Salman v Minister for Justice and Equality

1 JUDGMENT of Kearns P. delivered the 16th day of December, 2011.

2 This matter comes before the court by way of application for judicial review. The applicant sought inter alia an order of mandamus compelling the respondent to issue a decision on the applicant's application for naturalisation and a declaration that the applicant is entitled to a decision on the application within a reasonable period of time following receipt of all relevant information in respect thereof.

BACKGROUND FACTS

3 The applicant is an Iranian national and is a recognised refugee in the State. On the 2 ^nd of February, 2008, the applicant applied for a certificate of naturalisation. The application was made pursuant to the provisions of the Irish Nationality and Citizenship Act, 1956 (hereafter referred to as 'the 1956 Act') and was in the prescribed form. The application was still pending a decision until the eve of this hearing, despite repeated demands. The applicant had awaited a decision on the application for 3 years and 9 months.

4 There is evidence before the Court of correspondence between the parties. On the 25 ^th February, 2009, the respondent informed the applicant that the average processing time was 23 months but that some applications may take a shorter or considerably longer period. On the 10 ^th May, 2010, the applicant's solicitor wrote to the respondent complaining that 26 months had elapsed from the date of application. The respondent responded with an undated letter stating that applications are dealt with in chronological order and that the average processing time was 26 months. The letter confirmed that the processing of the applicant's case was ongoing and that the file would be submitted to the Minister for decision in due course. This letter further stated that the length of time taken to process applications should not be classified as delay as such period is a result of the time taken to carry out necessary checks. The letter states that applications must be processed in " such a way which preserves the necessary checks and balances".

5 On the 14 ^th June, 2010, the applicant's solicitor wrote a letter to the respondent requesting the expedition of the application. On the 22 ^nd September, 2010, the applicant's solicitor wrote a further letter threatening to institute proceedings. On the 23 ^rd September, 2010, the respondent replied reiterating that the processing of the applicant's case was ongoing and that the file would be submitted to the Minister for decision in due course. The letter stated that the applications were dealt with chronologically and that the average processing time was 26 months. The respondent again referred to the need to process the applications in such a manner as to allow for the necessary " checks and balances" On the 5 ^th October, 2010, the applicant sent a further letter of demand, and the respondent acknowledged receipt of same on the 7 ^th October, 2010. On the 16 ^th February, 2011, the applicant sent a further letter of demand. On the 17 ^th February, 2011, the respondent acknowledged receipt of same. On the 10 ^th March, 2011, the applicant's solicitor wrote a letter enquiring why the matter was taking longer than usual. On the 11 ^th April, 2011, the applicant's solicitor sent a further letter of demand which was acknowledged by the respondent on the 26 ^th April, 2011.

6 The applicant states that he was greatly inconvenienced by the delay in deciding his application. He states that he had been frequently detained for extended periods at immigration control when he attempted to travel out of the State, and that for this reason he had ceased travelling out of the State.

7 On the eve of this hearing, the respondent issued a decision granting the applicant a certificate of naturalisation. This decision, in effect, rendered the within proceedings moot. The sole matter that remained to be determined between the parties was that of the costs of the proceedings.

APPLICANT'S SUBMISSIONS

8 The applicant submits that the respondent, in considering the application for a certificate of naturalisation, is exercising a statutory function under the Irish Nationality and Citizenship Act, 1956, the Irish Nationality and Citizenship Act, 1986, the Irish Nationality and Citizenship Act, 1994, the Irish Nationality and Citizenship Act, 2001, and the Irish Nationality and Citizenship Act 2004 (hereafter together referred to as 'the Citizenship Acts'). In carrying out a statutory function, the respondent has a duty to comply with the law.

9 The applicant claims that the granting of citizenship is determined in accordance with law and in particular in accordance with the Citizenship Acts. It is submitted that the Oireachtas has legislated for the grant of citizenship and, once the Oireachtas has intervened in this manner, the regulation of citizenship is in accordance with the legislation and is no longer a matter of pure executive power.

10 It is accepted by the applicant that s. 15 of the 1956 Act grants the respondent a discretion. However, the applicant submits that the instant case does not constitute a situation where the respondent has " absolute discretion" once the statutory conditions set out in s. 15 have been complied with. The applicant argues that the respondent does not enjoy an absolute discretion to say that he does not need to consider an application submitted by an individual applicant, and that the respondent's statutory duty to consider the application should not be confused with his discretion as to the outcome of the application.

11 The applicant further submits that the respondent must adhere to the rule of law in the exercise of his statutory discretion and that he cannot claim that his decisions are unreviewable or claim that he is not subject to the public remedy of mandamus and/or declaratory relief.

12 The applicant accepts that the respondent cannot be compelled to decide the application for naturalisation in any particular way. It is submitted, however, that although the respondent has a wide discretion in relation to the outcome of the application does not mean that the respondent is absolved from the obligation to consider an application and to issue a decision within a reasonable time.

13 The applicant states that Article 34 of the U.N. Convention on the Status of Refugees and Stateless Persons, 1951 is predicated on a recognition that a refugee is required to remain outside his or her home country should at some point benefit from a " series of privileges, including political rights". The applicant accepts that Article 34 neither requires countries to grant citizenship to refugees, nor that refugees accept any offer of citizenship, but submits that an obligation to expedite the process is clearly mandated by Article 34 and the said requirement has been ignored in the instant case.

14 The applicant submits...