SH v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 30 January 2017 |
| Neutral Citation | [2017] IEHC 41 |
| Docket Number | [2016 No. 96 J.R.] |
| Court | High Court |
| Date | 30 January 2017 |
[2017] IEHC 41
THE HIGH COURT
JUDICIAL REVIEW
O'Regan J.
[2016 No. 96 J.R.]
Asylum, Immigration & Nationality – S. 3 of the Immigration Act 1999 – Denial of Irish citizenship – Prior permission to remain in State – Severance of decision
Facts: The applicant sought an order for quashing the respondent's decision for refusing the applicant's application for Irish citizenship. The applicant, who had previously been granted permission to reside in the State, contended that the respondent's decision was flawed with inconsistencies. The applicant argued that there was no evidence to sustain the respondent's findings pertaining to an unfounded asylum claim in the United Kingdom.
Ms. Justice O'Regan quashed the respondent's decision. The Court found that the respondent had given a reasoned decision as it was clearly stated in the decision that the applicant's application was refused owing to the untruthfulness and an unfounded asylum application made in the United Kingdom. The Court, however, held that the portion of the decision relying on the unsupported information in relation to an asylum application filed in the UK could not be sustained. The Court held that the applicant's file was not traceable in the UK and his asylum application was pending determination on appeal in the United Kingdom, and thus, it could not be said that the applicant had made an unfounded asylum claim in the UK. The Court observed that the suggestion of the UK authorities pertaining to incorrect name and date of birth in the asylum application was also found to be incorrect by the respondent, and thus, the respondent's decision could not survive based upon factual inaccuracies.
The applicant is challenging the decision of the respondent dated 27th November, 2015 refusing the applicant's application for Irish Citizenship.
The grounds upon which the relief is based are as follows:—
(a) the rationale or reasoning of the respondent is not sufficiently clear;
(b) the respondent did not assess the severity of the misrepresentations identified by the respondent and made by the applicant;
(c) the decision was based upon a clearly unfounded asylum claim in the UK however there was insufficient evidence to support such a fact;
(d) the applicant had a legitimate expectation that his application for citizenship would be acceded to based upon the fact that he had previously received residence permissions;
(e) the decision is based upon errors of fact and law;
(f) the respondent in the decision effectively replaced or altered findings of either ORAC or the RAT.
The applicant is a Nigerian National born in 1972. He arrived in the State in 2002 and applied for asylum in November, 2002 which was refused by ORAC on 24th June, 2003. This refusal was appealed to the RAT which was heard on 15th October, 2003. The appeal was refused by the RAT in the decision of 22nd October, 2003.
Following the decision of the RAT aforesaid the applicant was furnished with an intention to deport letter from the respondent and as a consequence made representation to the respondent under s. 3 of the Immigration Act, 1999 seeking permission to reside within the State. This application was made on 21st January, 2004 and identifies the 5th October, 2002 as the date on which the applicant arrived in the State. In his application for Citizenship the Applicant states he arrived in the State on 20th September, 2002 and in a letter dated 24 April, 2015 he states he arrived in the State on 30th October, 2002. The representation included an assertion that he was living with his wife and that because he now had a wife he would like to stay with her as she was finishing studying in 2008. The applicant also indicated that he did not wish to return to Algeria as he was suspected of being a criminal without any factual or evidential basis.
The applicant was ultimately afforded permission to reside in the State on 19th March, 2009.
Application for citizenship
The applicant submitted his application in May, 2014 on the basis of documentation dated 10th March, 2014.
Following this application correspondence was entertained between the parties. In this regard the respondent raised certain queries in a letter dated 21st November, 2014 which the applicant responded to in letter dated 26th November, 2014. Further queries were raised in a letter dated10th March, 2015 and responded to by the applicant on 13th March, 2015. The final queries were raised by the respondent in a letter dated 22nd April, 2015 and responded to by the applicant on 24th April, 2015.
In the letter dated 21st November, 2014 the respondent was seeking confirmation that the adverse immigration history with the UK related to the applicant. The response of the applicant on the 26th November, 2014 was to the effect that, yes, this adverse application referred to the applicant but he was unaware as to the confusion as to his name. Subsequent clarification was sought as to the applicant's marital status and in a communication dated the 24th April, 2015 the applicant confirmed that he had never been married and he then was single. Further clarification was also sought of the applicant however not apparently germane to the ultimate decision.
In fact, it appears that the UK authorities furnished contradictory information as to the applicant, namely in a fax communicated on 29th April, 2003. It was indicated that the applicant had previously made an application in England although with a different surname and date of birth. The file was not then available. Further information from the UK authorities disclosed that there was an asylum refusal in respect of the instant applicant with the correct name and date of birth in England on 27th April, 2001.
The decision of the 27th November, 2015
By letter dated 27th November, 2015 the respondent advised the applicant that the Minister having considered the application has decided not to grant the applicant a certificate of naturalisation. It was indicated in this letter that the reasons for the refusal were given in the attached submission.
The attached submission includes the following recommendation:—
'The applicant made a clearly unfounded application for asylum both in the State and in the U.K. and has been untruthful, which goes to his character. I am not satisfied that the applicant is of good character and I would not recommend the Minister to grant a certificate of naturalisation in this case.'
Prior to the recommendation the following issues were raised, namely:—
(a) The applicant had already applied for asylum in the UK on the 14th June, 2000 under a different name and date of birth.
(b) The applicant stated in his asylum application that he arrived in the State from Algeria on 30th October, 2002, however, elsewhere he has stated that he moved to Ireland directly from the UK with his then girlfriend and claimed asylum.
(c) He has given his marital status as single on his application for a certificate of...
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A.A. v Minister for Justice & Equality
...in this case.' Submissions 10 In written submissions, the applicant relies on the case of S.H. v. Minister for Justice and Equality [2017] IEHC 41 where it was held that there were two factual inaccuracies within the relevant naturalisation refusal and it was not possible to ring-fence the......