Singh v Minster for Justice & Equality; Zydek v Minster for Justice & Equality; Shahid Arshad v Minster for Justice & Equality
|Ms. Justice Niamh Hyland
|28 June 2022
| IEHC 437
|Record Number: 2021/212JR Record Number 2021/229JR
 IEHC 437
Record Number: 2021/212JR
Record Number: 2021/225JR
Record Number 2021/229JR
THE HIGH COURT
Citizenship ceremony – Certificate of naturalisation – Order of mandamus – Applicants seeking certificate of naturalisation – Whether the applicants were entitled to be scheduled for a citizenship ceremony
Facts: The applicants, Mr Singh, Ms Zydek and Mr Arshad, applied to the High Court seeking: (1) an order of mandamus compelling the respondent, the Minister for Justice and Equality, to complete the process of scheduling a citizenship ceremony and/or any alternative provisions to swear fidelity to the State and to grant the applicants a certificate of naturalisation forthwith or within a reasonable time frame, pursuant to s. 15 of the Irish Nationality and Citizenship Act 1956 as amended; (2) a declaration that the applicants by way of the doctrine of legitimate expectation are entitled to be scheduled for a citizenship ceremony and should be granted a certificate of naturalisation pursuant to s. 15; (3) in the alternative, an order of mandamus compelling the respondent to make a decision in the applicants’ applications for a certificate of naturalisation which they applied for pursuant to s. 15; (4) in the alternative, a declaration that the applicants are entitled to a decision being made in their application having applied for a certificate of naturalisation and they are entitled to such a decision within a reasonable and expeditious time frame and having regard to the length of time they have been waiting and the respondent’s commitment in general that the average application is 6 to 12 months; and (5) damages for the loss, stress, inconvenience and expense.
Held by Hyland J that no legitimate expectation could have arisen on the part of the applicants by virtue of the receipt of the letters that they were entitled to a citizenship declaration, and they could not rely on the doctrine of legitimate expectation in those circumstances. Hyland J did not accept that there was sufficient delay to entitle Ms Zydek to a remedy. It seemed to Hyland J that for the Minister to continue to await the outcome of the An Garda Síochána investigation in order to permit her to form a view on good character was not unreasonable or egregious. Hyland J therefore refused the reliefs in respect of Mr Singh. Hyland J did not think relief that would either direct the Minister to proceed to grant a certificate of naturalisation or a declaration that Mr Arshad was entitled to the grant of a certificate was appropriate in circumstances where the Minister had ongoing concerns about good character and such an order would mean that Hyland J was essentially directing the Minister to come to a positive conclusion on good character where there was an ongoing investigation in circumstances where she had identified her reasons for not being able to reach a conclusion on that issue. Having considered whether an order of mandamus should be granted directing the Minister to make a decision given the period of delay, Hyland J held that the delay had fallen into the egregious bracket and Mr Arshad was entitled to a declaration that he should have a decision on an application made in 2017 about which a complaint was made in 2018.
Hyland J refused the reliefs sought by Mr Singh and Ms Zydek. She granted Mr Arshad an order of mandamus compelling the respondent to make a decision in respect of his application for a certificate of naturalisation.
Reliefs refused in part.
EX TEMPORE Judgment of Ms. Justice Niamh Hyland delivered 28 June 2022
I have decided to give one judgment in the three matters that were heard together before me on Thursday 23 June 2022, given that the issues in each case raise the same points requiring determination. However, because the facts in each case differ somewhat, I will deal with the individual facts first and then turn to the common legal issues thrown up by the facts. First, I will deal with the case of Mr. Singh.
Mr. Singh arrived in Ireland on a student visa in 2008. In 2012 he married Ms. Zydek, a Polish national. In May 2013 he was granted an EU Residence Card. On 20 April 2018 he applied for naturalised Irish citizenship. On the 24 August 2018 the Minister wrote to Mr. Singh stating he proposed to grant him a certificate of naturalisation subject to his completion of the application process. On 27 August 2018 Mr. Singh sent outstanding documents and the fee to the Department. On the 3 April 2019 the Minister invited Mr. Singh to a citizenship ceremony on 29 April 2019. On 16 April 2019 the Minister advised Mr. Singh not to attend at an oversubscribed citizenship ceremony scheduled for 29 April 2019. On 26 November 2019 the Department informed Mr. Singh that his application continued to be processed. In January 2020 solicitors wrote on Mr. Singh's behalf, threatening mandamus proceedings. That happened again in February 2021 when IMK Solicitors wrote, threatening mandamus proceedings.
On 22 March 2021, an application for leave to bring the proceedings was made and refused by the High Court. On 15 July 2021 that refusal was overturned by the Court of Appeal, which directed that leave application be brought on notice to the Minister. It was directed that the application for leave be telescoped to be heard with the substantive application and I am therefore dealing both with the leave and the substantive application here.
On 29 September 2021 An Garda Síochána arrested Ms. Zydek who was married at that time to Mr. Singh. On 7 October 2021 the Chief State Solicitors Office (“CSSO”) wrote to IMK Solicitors informing them that Mr. Singh and Ms. Zydek were under active investigation by An Garda Síochána and invited Mr. Singh and Ms. Zydek to discontinue the proceedings in the circumstances. On 15 October 2021 IMK Solicitors replied, refusing to discontinue the proceedings. Turning to those letters, the relevant passage for the purposes of this decision is the statement in the letter of 7 October 2021 from the Chief State Solicitor to the effect that the applicants are the subject of an active investigation by An Garda Síochána in relation to immigration offences and that good character is a statutory requirement that must be established before a certificate of naturalisation may be granted to any applicant.
On 15 October 2021 there was a reply, where the point is made by IMK Solicitors that none of the information was furnished to them nor to their clients in relation to the active investigation in the course of their dealings with the Department until the 29 September 2021, when Ms. Zydek was arrested and questioned. They make the point also that the investigation was not even advanced to an allegation, not to mention a finding. There is a further point to the effect that the Department does not have an unlimited or indefinite period to investigate the marriage of their clients. There is an acknowledgment that good character is a statutory requirement but note it was their understanding that their cases had been investigated and advanced to the stage of swearing fidelity and that therefore they do not see why character is at question. They identify that, in their view, the delay in processing the application was inordinate.
A Statement of Grounds was filed in April 2021. The reliefs are effectively identical to those sought in the other two sets of proceedings, being and . I will therefore recite the reliefs in these proceedings but will not do so in the other proceedings. They are as follows:
1) An Order of mandamus compelling the respondent to complete the process of scheduling a citizenship ceremony and/or any alternative provisions to swear fidelity to the State and to grant the applicant a certificate of naturalisation forthwith or within a reasonable time frame, pursuant to s.15 of the Irish Nationality and Citizenship Act 1956 as amended by s.4 of the Irish Nationality and Citizenship Act 1986 and in accordance with the letter of 24 August 2018 and/or 3 April 2019.
2) A declaration that Mr. Singh by way of the doctrine of legitimate expectation and in accordance with the respondent's letter of 24 August 2018 – being the letter from the Minister indicating that she is intending to grant him citizenship — is entitled to be scheduled for a citizenship ceremony and should be granted a certificate of naturalisation pursuant to s.15 and in accordance with the letters as identified above at para. 1.
3) In the alternative, an Order of mandamus compelling the respondent to make a decision in Mr. Singh's application for a certificate of naturalisation which he applied for in or around March 2018 pursuant to s.15.
4) In the alternative, a declaration that Mr. Singh is entitled to a decision being made in his application having applied for a certificate of naturalisation in or around March 2018 and he is entitled to such a decision within a reasonable and expeditious time frame and having regard to the length of time he has been waiting and the respondent's commitment in general that the average application is 6 to 12 months.
5) Damages for the loss, stress, inconvenience and expense.
An affidavit was sworn by Mr. Singh on 15 March 2021 verifying the facts in the Statement of Grounds. He exhibits the relevant correspondence referred to above. At paragraph 8 he says that he has waited for 36 months approximately since his application was lodged in March 2018. He says he is entitled to a decision in a timely manner and the delay is inordinate and unjustified in all the circumstances.
On 3 February 2022 Mr....
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