Simion and Others v Minister for Justice, Equality and Law Reform
| Jurisdiction | Ireland |
| Judge | Mr. Justice John MacMenamin |
| Judgment Date | 09 September 2005 |
| Neutral Citation | [2005] IEHC 298 |
| Docket Number | [Record No. 867 JR 2003] |
| Court | High Court |
| Date | 09 September 2005 |
[2005] IEHC 298
THE HIGH COURT
BETWEEN
AND
AND
BETWEEN
AND
BETWEEN
AND
AND
BETWEEN
AND
IRISH NATIONALITY & CITIZENSHIP ACT 1986 S4
S v MIN FOR JUSTICE & ORS 2002 2 IR 163 2002/24/6257
FREEDOM OF INFORMATION ACT 1997
IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15(1)(C)
G (GA) v MIN FOR JUSTICE & ORS 2003 3 IR 442 2003/23/5347
P & ORS v MIN FOR JUSTICE 2002 1 ILRM 16
SHUM v IRELAND & ORS 1986 ILRM 593 1986/4/1484
MISHRA v MIN FOR JUSTICE & ORS 1996 1 IR 189 1996/13/4227
ROBERT & MURESAN v MIN FOR JUSTICE UNREP PEART 2.11.2004 2004/44/10153 2004 IEHC 348
SOFRONI v MIN FOR JUSTICE & ORS UNREP PEART 9.7.2004 (EX TEMPORE)
IMMIGRATION ACT 1999 3(9)(B)
GOERTZ, STATE v MIN FOR JUSTICE & ANOR 1948 IR 45
ALIENS ACT 1935 S5(5)
CHILDREN ACT 1908
ALIENS ORDER 1946 SI 395/1946
IRISH NATIONALITY & CITIZENSHIP ACT 2001 S6
IRISH NATIONALITY & CITIZENSHIP ACT 1994
BYRNE v IRELAND & AG 1972 IR 241
HOWARD & ORS v CMRS OF PUBLIC WORKS IN IRELAND 1994 1 IR 101
HOEY & MATTHEWS v MIN FOR JUSTICE 1994 3 IR 329 1994 1 ILRM 334 1993/12/3714
DUGGAN v AN TAOISEACH & ORS 1989 ILRM 710 1989/1/110
IMMIGRATION:
Residence
Naturalisation - Statutory interpretation - Whether time spent in asylum process should contribute towards residence requirement for naturalisation where asylum claim unsuccessful - Ministerial discretion - Gonescu v Minister for Justice (Unrep, SC, 30/7/2003), PB and L v Minister for Justice [2002] 1 ILRM 16, State (Goertz) v Minister for Justice [1948] IR 45 followed - Irish Nationality and Citizenship Act 1956 (No 26), ss15 and 16A - Preliminary issue determined - (2003/867JR, 2003/933JR, 2004/617JR and 2004/862JR - MacMenamin J - 9/11/2005) [2005] IEHC 298
S (G) v Minister for Justice, Equality and Law Reform
dated the 9th day of September, 2005.
Because of its central importance to these proceedings it has been agreed that I will make a determination on the proper interpretation of the meaning of the word "residence" as it arises under s. 15 of the Irish Nationality and Citizenship, 1956, as amended by s. 4 of the Irish Nationality and Citizenship, 1986.
In order to place this issue in context however it is appropriate to deal with the background circumstances of each of the applicants. This is of particular importance in the light of their present status within this jurisdiction.
The first applicant in these proceedings is George Simion. He was born in Romania on or about the 14th December, 1968. He came to Ireland on 8th September, 1996, and applied for asylum. By letter dated 30th October, 1998, he was notified that his application for asylum had been refused. He appealed that refusal on 5th November, 1998, but the then Refugee Appeals Authority recommended rejection of his appeal on 17th February, 1999. The applicant received notification of this rejection and of the respondent's proposal to deport him by letter dated 25th March, 1999. His solicitors, James Watters and Company, forwarded submissions as to why he should not be deported but a purported deportation order was made against him. Notification of its making was given to him by letter dated 24th March, 2000. Legal proceedings were taken in respect of that deportation order and the respondent ultimately decided to revoke such order because of the judgment is a grant of leave to apply for judicial review in other proceedings (see S.P. v. Minister for Justice Equality and Law Reform [2002] 1 I.R. 164). That judgment is not material to these proceedings.
A further proposal to deport the applicant was sent to him dated 17th September, 2001. His solicitors made further submissions in response to that proposal. The applicant was granted temporary leave to remain in the State for a year on 10th October, 2002, which has been renewed from time to time since then.
The applicant was employed as a sub-contractor in an engineering firm between June, 2000 and September, 2001. He then entered employment with that firm. He has also been a part-time student with the Dublin Institute of Technology since September, 2002.
On 24th September, 2001, the applicant applied to the respondent for naturalisation as an Irish citizen.
The respondents' Department wrote to the applicant's solicitors on 22nd July, 2002, seeking further information. The applicant contends this information was supplied.
The applicant's solicitors were notified by letter dated 28th January, 2003, that his application for naturalisation had been refused. The applicant states that since no reasons were given for this decision the solicitors did not see how the decision could be challenged. The applicant further states that no letter in response to the application for a certificate of naturalisation was ever sent to the applicant personally.
The applicant states that a meeting took place between himself and his solicitors in August, 2003. His solicitors decided to write to the respondent's Department asking for the reasons why the applicant's application had been refused. The solicitor's letter dated 3rd September, 2003, is exhibited in these proceedings. The respondent's Department wrote back by letter dated 22nd September, 2003, to the effect that it was not the policy of the respondent to state reasons for the grant or refusal of naturalisation but that the applicant might make an application for release of records in respect of the decision pursuant to the Freedom of Information Act, 1997. The solicitors made a request under that Act and received a response dated 22nd October, 2003.
With this response the respondents' department furnished the applicant's solicitors with a number of documents including memoranda prepared by Sarah Mongey of the Citizenship Section of the respondent's Department on or about the 14th October, 2002, and also the respondents' deponent herein Gerry McConnell dated 6th January, 2003. This last document is endorsed with the words "Minister agrees 24/1/03".
Ms. Mongey's memorandum states that the applicant is of good character, has not come to the adverse attention of the Gardaí, will reside in the State after naturalisation if granted, and has been resident in the State for five years thereby fulfilling the statutory pre-condition to the respondents consideration of an application for the grant of a certificate of naturalisation prescribed by s. 15(1)(c) of the Irish Nationality and Citizenship, 1956, as substituted by s. 4 of the Irish Nationality and Citizenship Act,1986.
Notwithstanding the contents of Ms. Mongey's memorandum Mr. McConnell's memorandum to the Minister concludes "I recommend that the Minister exercise his discretion not to approve the granting of a certificate of naturalisation on the basis that he is not satisfied to accept that the time spent by Mr. Simion in the asylum process should contribute towards the five year residence requirement for naturalisation since that period of residence was allowed solely for the purpose of making an asylum claim which has not been successful".
With this decision with which the respondent signified his agreement. It is the subject of the challenge herein.
This applicant was born in Romania on or about 10th April, 1971. He came to Ireland early in November, 1996 and applied for asylum. His application for asylum was refused on or about 30th October, 1998. He appealed this refusal. The then Refugee Appeals Authority recommended rejection of his appeal on or about 18th March, 1999. By letter dated 4th May, 1999, the respondent requested that this applicant state any reasons why he should be allowed to stay in Ireland. His solicitors forwarded submissions to the Department of Justice Equality and Law Reform why he should not be deported. A purported deportation order was made against this applicant on or about 6th March, 2000, but the respondent later revoked it on what appeared to have been the same grounds as those in the case of the first applicant.
The respondent made a fresh proposal to deport this applicant by letter dated 17th September, 2001. The applicant's solicitors made further submissions on the applicant's behalf dated 2nd November, 2001.
The applicant has had no decision on his application even though he has been in Ireland for nearly 10 years. He has had no decision on his application for leave to remain in Ireland for four years. The applicant's solicitors sent to the respondent's Department a reminder letter dated 18th June, 2003, in respect of this application. This was acknowledged by letter dated 30th June, 2003, from the respondent's Department but that acknowledgement does not furnish any decision regarding the applicant's application not to be deported. The applicant's solicitor sent a further reminder dated 29th September, 2003, to the Department, and again that letter was acknowledged by letter dated 30th September, 2003.
In or about 3rd January, 2002, the applicant made an application to the respondent for naturalisation as an Irish citizen. The respondent's department twice wrote to the applicant's solicitors seeking further information which information was supplied.
The applicant's solicitors were notified by...
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