Spila and Others v Minister for Justice, Equality & Law Reform and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Cooke |
| Judgment Date | 31 July 2012 |
| Neutral Citation | [2012] IEHC 336 |
| Court | High Court |
| Date | 31 July 2012 |
[2012] IEHC 336
THE HIGH COURT
BETWEEN
AND
SLIVENKO v LATVIA 2004 2 FCR 28 2004 39 EHRR 24 15 BHRC 660
KAFTAILOVA v LATVIA UNREP ECHR 7.12.2007 (APPLICATION NO 59643/00)
ANDREJEVA v LATVIA 2010 51 EHRR 28
IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15
SHUM v IRELAND & ORS 1986 ILRM 593 1986/4/1484
CHEN & ANOR v SECRETARY OF STATE FOR THE HOME DEPT 2005 QB 325 2004 3 WLR 1453 2005 AER (EC) 129 2004 ECR I-9925 2004 3 CMLR 48
MICHELETTI v DELEGACION DEL GOBIERNO EN CANTABRIA 1992 ECR I-4239
R v SECRETARY OF STATE FOR THE HOME DEPT, EX PARTE KAUR 2001 AER (EC) 250 2001 ECR I-1237 2001 2 CMLR 24
UN CONVENTION RELATING TO THE STATUS OF REFUGEES 28.7.1951 ART 1
MISHRA v MIN FOR JUSTICE & ORS 1996 1 IR 189 1996/13/4227
MALLAK v MIN FOR JUSTICE UNREP COOKE 22.7.2011 2011/34/9485 2011 IEHC 306
ABUISSA v MIN FOR JUSTICE 2011 1 IR 123 2010/1/227 2010 IEHC 366
IMMIGRATION LAW
Naturalisation
Judicial review - Ethnic Russians born in Latvia - Applications for certificates of naturalisation refused - Whether error by respondent in failing to treat applicants as stateless - Right of applicants to make new application to respondent - Application refused (2009/787JR - Cooke J - 31/7/2012) [2012] IEHC 336
Spila v Minister for Justice, Equality and Law Reform
Facts: The applicants, a mother and daughters originally from Latvia, had applied to the first respondent for naturalisation under the Irish Nationality and Citizenship Act 1956 (‘1956 Act’). The first respondent had refused the applications, on the basis the applicants had not demonstrated that they had supported themselves whilst resident in the State but rather had relied upon state support. The applicants now sought review of the decisions to refuse the applications.
Held by Cooke J, that the applicants claimed review on the basis the first respondent had not taken into account the applicants” status as stateless persons. However, when applying initially this point had not been submitted to the first respondent.
In respect of the 1956 Act, the grant of a certificate under that Act was a privilege that was granted solely as the discretion of the State. This was recognised in both domestic and international law. It would be inappropriate for the Court to attempt to assume the first respondent”s function in this matter.
Refusing the application for review, the Court stated the first respondent had made it clear that a fresh application would be reconsidered, and this was accordingly a more suitable method by which the applicants could pursue their claim.
1. By order of the Court (Peart J.) of 20 th July, 2009, leave was granted to the applicants to apply for judicial review of a decision of the respondent Minister given to them by letter dated the 31 st March, 2009, refusing applications for certificates of naturalisation in respect of the first and second named applicants and an order quashing a further decision given by letter dated the 15 th June, 2009, refusing a certificate in respect of the third named applicant.
2. The applicants are respectively a mother and her older and younger daughters. The mother, the first named applicant, was born in 1967 at Riga in the territory that is now the Republic of Latvia, a Member State of the European Union. She is of Russian ethnicity. The mother arrived in the State in 1999, bringing with her the second and third named applicants who had also been born in Latvia in 1985 and 1992, respectively. The mother has since given birth in the State to two further children who are said to be Irish citizens. The mother had originally applied to be declared a refugee, but this application was withdrawn following the birth of the first Irish born child, when she was given leave to remain in the State. The second named applicant has in turn given birth to a child in the State whose father is said to be an Irish citizen.
3. In August 2005, Form 8 applications for naturalisation as an Irish citizen under the Irish Nationality and Citizenship Act 1956 (as amended) were submitted on behalf of each of the three applicants. At paragraph 1.2 of each of the forms the heading "Present Nationality" was completed; "Latvian (ethnic Russian)". Amongst the documentation submitted in support of the applications were copies of the applicants' passports. These were passports issued by the "Republic of Latvia" and bore on the outside cover (in English) the description "Alien's Passport". (The third named applicant appears to have been included for this purpose on her mother's passport).
4. By letter dated the 31/03/2009, the respondent Minister's Irish Naturalisation and Immigration Service (INIS) wrote to the applicants' solicitors informing them that the Minister had decided not to grant the certificates of naturalisation. A memorandum dated the 25 th February, 2009, giving the assessment of the applications was attached to the letter which said: "In reaching this decision, the Minister has exercised his absolute discretion as provided by the Irish Nationality and Citizenship Acts 1956 and 1986. There is no appeals process provided under this legislation. However, your client should be aware that you may reapply for the grant of a certificate of naturalisation at any time. When considering making such a reapplication your client should give due regard to the reasons for the refusal given in the attached submission. Having said this, any further application will be considered taking into account all statutory and administrative conditions applicable at the time of the application".
5. The material part of the attached submission - which dealt with other applications as well - under the heading "Applicants for Naturalisation - Proposed refusal for availing of social welfare support" - was as follows:
"The seven applicants listed in the appended table have availed of, or benefited from State financial support for lengthy periods in the past and do not belong to one of the categories (refugees, programme refugees and stateless persons) which, by virtue of their recognised status in the State, the Minister accepts, for the purposes of naturalisation, can avail of State support."
The letter further explained:
"The Minister has adopted a general policy that he will normally require an applicant for naturalisation (unless he/she belongs to one of the categories stated above) to show that he/she has supported himself or herself (and his or her family if appropriate) while residing in the State and, as far as can be determined, is in a position to continue that support in the future. He is generally speaking, satisfied to accept that an applicant is self supporting if there is no evidence that he or she has accessed State support in the three year period prior to the date of application or subsequently and has satisfied officials that they have supported themselves independently in that period."
6. In a letter of the 8 th April, 2009, the applicants' solicitors responded to this refusal of the certificates. The letter said, inter alia:
"Having taken instructions from our clients it appears that the recommendation did not advert to the fact that our clients could and should be classed as stateless persons within the meaning of the 1954 Convention. Our clients, born in Latvia, are both of Russian ethnicity and accordingly are classed by the Latvian State as aliens. They have no entitlement to vote in Latvia, would not be classed by the Latvian authorities as EU citizens and indeed are only entitled to "alien" passports under the Latvian authorities. We accept that the Minister, in making a determination in our clients' cases may not have had reference to the fact that our clients are stateless by virtue of their nationality being described in their application forms (form 8) as Latvian (ethnic Russian): the fact of the matter however, is that notwithstanding our clients' classification of themselves, they are not classified by the Latvian authorities as nationals of Latvia and accordingly are stateless. In the circumstances you might please confirm that our clients' applications for naturalisation are being reconsidered and that the applications will not be refused on the basis that our clients availed of social welfare support."
7. On the 15 th June, 2009, a decision in the same terms was issued to the mother in respect of the...
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