Somjee v Minister for Justice

JurisdictionIreland
JudgeMr. Justice Keane
Judgment Date01 January 1981
Neutral Citation1978 WJSC-HC 4079
Docket NumberNo. 6402P/1978
CourtHigh Court
Date01 January 1981
SOMJEE v. MINISTER FOR JUSTICE

BETWEEN:

MOHAMMED ALI SOMJEE AND MARGARET SOMJEE
Plaintiffs

and

THE MINISTER FOR JUSTICE AND THE ATTORNEYGENERAL
Defendants

1978 WJSC-HC 4079

No. 6402P/1978

THE HIGH COURT

1

JUDGMENT Delivered by Mr. Justice Keanethe 20th day of December 1979

2

The Plaintiffs in these proceedings claim that the provisions of Sections 8, 15 and 16 of the Irish Nationality and Citizenship Act, 1956, are invalid having regard to the provisions of the Constitution. The first-named Plaintiff is a native of Pakistan, aged 24 years, who came to this country in March, 1977, and has resided here continuously since then. Like a number of his compatriots, he is in the front rank of squash players and has made that sport, and the coaching of others in it, his profession. The second-named Plaintiff is an Irish citizen whom the first-named Plaintiff married on the 15th April, 1978.

3

On the 21st August 1978, the first-named Plaintiff applied to the Minister for Justice for a certificate of naturalisation as an Irish citizen. Section 15 of the Act of 1956 provides that the Minister way, in his absolute discretion, grant such an application if satisfied that the Applicant complies with certain conditions, including conditions that one years notice be given of the intention to make the application and that the applicant shall have resided in this country for five years in all.

4

Section 16 goes on to provide that the Minister may dispense with any of these conditions inter alia

5

a "(d) where the applicant is a woman who is married to a naturalised Irish citizen;

6

(e) where the applicant is married to a woman who is an Irish citizen (otherwise than by naturalisation)."

7

These provisions are in contrast to section 8 (1) of the Act which provides that:

"A woman who is an alien at the date of her marriage to a person who is an Irish citizen (otherwise than by naturalisation) shall not become an Irish citizen merely by virtue of her marriage, but may do so by lodging a declaration in the prescribed manner with theMinister...either before or at any time after the marriage accepting Irish citizenship as her post-nuptial citizenship."

8

This in effect means that an alien woman who marries an Irish citizen (other than a naturalized citizen) may automatically acquire Irish citizenship on her marriage, in contrast to the position of an alien man. Moreover, a certificate of naturalisation granted to an alien man upon his marriage to an Irish citizen may be revoked in the circumstances set out in Section19.

9

The Minister, by letter dated 24th August 1978, indicated that, in accordance with what was described as normal practice, the residential qualification would, in the case of the first-named Plaintiff, be reduced to two years and the requirements as to advance noticewaived.

10

It was pointed out by the first-named Plaintiff's solicitor that under Section 8(1) an alien woman who married an Irish citizen became automatically entitled to Irish citizenship. It was suggested that the constitutionality of the sections was very dubious and that in the circumstances, the Minister should waive the residence qualification in its entirety. This the Minister declined to do, whereupon the present proceedings were instituted claiming a declaration that Sections 8, 15 and 16 of the Act of 1957 are unconstitutional andcontrary to natural justice and an Order directing the first-named Defendant to grant a certificate of naturalisation to the first-named Plaintiff. The Defendants in their Defence deny that the provisions in question are unconstitutional or contrary to natural justice and dispute the locus standi of both Plaintiffs on the grounds that the first-named Plaintiff is not an Irish citizen and that the second-named Plaintiff is not the applicant for citizenship.

11

The first-named Plaintiff gave evidence that he had been omitted from the Irish Squash Team for an overseas tour because he was not an Irish citizen. He said that he wished to remain in Ireland and earn his livelihood here. His evidence on these matters was not challenged.

12

The submission on behalf of the first-named Plaintiff that the provisions in question were a violation of his constitutional rights presented an immediate problem, i.e. the fact that the first-named Plaintiff was not an Irish citizen and arguably, at least, thereby precluded from relying on the relevant articles of the Constitution. Mr. O'Flaherty sought to meet this difficulty initially by contending that, even if the first-named Plaintiff had no locus standi, the second-named Plaintiff's rights under the Constitution had none the less been violated. His argument may be summarised asfollows.

13

The second-named Plaintiff, who is an Irish citizen and as such unarguably entitled to the protection of the constitutional guarantees contained in that part of the Constitution devoted to the protection of fundamental rights, is precluded by virtue of the provisions of the 1956 Act from conferring on her husband the benefits of Irish citizenship by virtue of her marriage to him. If she were a man, the argument runs, she would by her marriage be capable of conferring on her alien spouse an automatic right to Irish citizenship which was not dependent on the grace and favour of the Minister. The fact that she is deprived of the right to confer such an automatic entitlement on her spouse is a violation of the guarantee contained in Article 40.1 of the Constitution, viz:-

"All citizens shall, as human persons, be held equal before thelaw."

"This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function."

14

It was also submitted on her behalf that the statutory provisions in question abridged or trenched on her right to marry the person of her choice. It was submitted that the right to marry in questionwasone of the unenumerated rights guaranteed by Article 40 and that, in so far as the second-named Plaintiff was precluded from conferring the benefit of an automatic entitlement to citizenship on the husband of her choice, the legislation in question inhibited that right.

15

So far as the first-named Plaintiff was concerned, it was submitted that the differentiation between alien men and women which, it was alleged, the sections already referred to contained was a breach of the guarantee of equality before the law contained in Article 40. It was further submitted that the alleged differentiation constituted a breach of Article 9.1.3., viz:

"No person may be excluded from Irish nationality and citizenship by reason of the sex of such person."

16

It was submitted that, if the first-named Plaintiff was incapable of asserting those rights, because he was not a citizen (which was not accepted) the second-named Plaintiff was, in law, capable of asserting that right on his behalf.

17

It was submitted on behalf of the Defendants that the arguments adduced on behalf of the Plaintiffs, if well founded, must have as their logical consequence a finding that Section 8 of the Act was invalid having regard to the provisions of the Constitution. It wassubmitted that, as the High Court had no power to re-write impugned sections so as to ensure their constitutional validity, the only effect of the Plaintiff's...

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