O.T.A. -v- The Minister for Justice and Equality, [2016] IEHC 173 (2016)

Docket Number:2014 651 JR
Party Name:O.T.A., The Minister for Justice and Equality
 
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THE HIGH COURT

JUDICIAL REVIEW [2014 No. 651 J.R.]

BETWEEN

O. T. A. APPLICANTAND

THE MINISTER FOR JUSTICE AND EQUALITY RESPONDENT

JUDGMENT of Ms. Justice Faherty delivered on the 15th day of April, 2016

  1. The applicant seeks an order of certiorari quashing the decision of the respondent pursuant to s. 15 of the Irish Nationality and Citizenship Act 1956 (as amended) refusing the grant of a certificate of naturalisation to the applicant, as notified to him on 26th August, 2014.

    Background

  2. The applicant is a Nigerian national and has been lawfully resident in the state since 9th May, 2007. He was granted permanent residence in the state on 24th April, 2012 based on his derivative EU Treaty Rights by virtue of his marriage to an Irish national. The applicant submitted an application for naturalisation on 5th October, 2012. In the Form 8 which the applicant completed on 4th September, 2012 for the purposes of his application for naturalisation he answered in the affirmative the query as to whether he had ever committed “any offences against the laws of Ireland or any overseas country”. He also answered in the affirmative the query as to whether he had “any convictions in the state or any other country (including traffic offences)…”. The submissions made on behalf of the applicant and which accompanied the Form 8 gave details of the applicant’s conviction in the following terms:

    “[The applicant] received a conviction in Dublin District Court in or around 12/11/2010 for driving a taxi without a taxi license. He was fined €2,900. This fine has been paid and documentation in this regard is enclosed herein. Our client is most regretful and ashamed regarding this matter. We would respectfully submit that almost two years have elapsed since he received this conviction and he has paid in full the fine imposed by the Court. This incident was the only occasion in which he came to the adverse attention of the authorities.”

    The submissions continued, inter alia, as follows:

    “It is respectfully submitted that considering the totality of the circumstances in this case, and in particular the duration of [the applicant’s] residence in the State, his integration into Irish society and his work record, it would be disproportionate to conclude that [the applicant] is not of good character on the basis of the offence he committed in 2010 under the Taxi regulation Act. We would therefore respectfully ask the Minister to exercise his discretion in a favorable light.”

  3. The applicant’s correspondence was acknowledged on 18th October, 2012 and he was informed that his application had been initially assessed and had proceeded to the second stage of processing.

  4. On 20th November, 2013 the respondent wrote to the applicant asking for an explanation as to why an address which appeared on the court documents in connection with the applicant’s €2,900 fine was not listed by the applicant as a place of residence and he was requested to submit a full list of addresses and dates on which he had resided at such addresses since first entering the State. On 19th December, 2013, the applicant explained that the address listed on the court documents was not one at which he resided but rather that of his brother, and he explained that the address was that to which his brother’s taxi was registered and he confirmed that the list of addresses previously provided by him was otherwise accurate.

  5. On 15th January, 2014 the respondent wrote to the applicant in respect of a list of offences which were contained in a Garda report attached to the said letter and the applicant was requested to give an account of the circumstances surrounding the offences and an explanation for not disclosing the offences in his application form.

  6. The schedule which attached to the letter detailed that the applicant had incurred a fine of €390 in the District Court on 29th May, 2009 for the non display of a tax disc. It also detailed that the Probation Act was applied on 6th November, 2008 for giving a false name/address/date of birth under the Road Traffic Act and that on 22nd October, 2007 the Probation Act was applied for the failure to provide a valid passport.

  7. On 13th March, 2014 the applicant provided the following explanations:

    “Court date 29/05/2009 – No road tax

    Our client instructs that this was an honest mistake. He had just returned from holidays abroad and did not realise that his tax disc had expired while he was away.

    We are instructed that the reason for not disclosing this matter in the naturalisation application form is because he was not aware of it. The summons had been sent to his old address… and he was fined in absentia in the District Court. He only became aware of this matter around August/September 2013 and he was in fact advised by Gardaí to appeal the matter, which he did. The fine was reduced to €150 on appeal. We enclose a copy of the order of the Circuit Court dated 07/10/2013. It would therefore appear that the information provided to you by the Gardaí is not accurate i.e. the fine was reduced on appeal.

    Court date 06/11/2008 – Giving false name/address/d.o.b.

    This charge relates to the previous case already dealt with (see previous correspondence). He was driving his brother’s taxi without a taxi license and a number of charges issued in relation to this matter. We understood that he received a fine of €2,900 in relation to the main offence. Note that he was not convicted in relation to this charge sheet and he was given the benefit of the Probation Act. A copy of the District Court order, dated 06/11/2008 is enclosed herein.

    Court date 22/10/2007 – Failure to produce a passport

    Our client was still in the asylum process at that time and he was not in possession of a passport when same was requested by the Gardaí. Note that no conviction was imposed. You will also note that this was an offence under the old wording of s. 12 of the Immigration Act, 2004, which was declared unconstitutional by the High Court on 25/03/2011.”

  8. In concluding submissions, his legal advisors stated:

    “It is respectfully submitted that, considering the totality of the circumstances in this case, and in particular the duration of [the applicant’s] residence in the State, his integration into Irish society and his work record, it would be disproportionate to conclude that our client is not of good character.”

    Further documentation in relation to the applicant’s employment was enclosed with the letter and the respondent was advised that the applicant was the father of an Irish citizen child and that while he did not reside with the child’s mother, he had joint guardianship and regular contact with the child in respect of whom he was making regular maintenance payments.

    The decision

  9. By letter dated 26th August, 2014 the applicant was advised that the respondent had decided not to grant him a certificate of naturalisation. It is this decision that is the subject matter of the within proceedings.

  10. The letter of 26th August, 2014 advised as follows:

    “I am directed by the Minister for Justice and Equality to refer to your client’s application for a certificate of naturalisation.

    The Minister has considered your client’s application under the provisions of the Irish Nationality and Citizenship Acts 1956 and 1986 as amended and has decided not to grant a certificate of naturalisation.

    Section 15 of the Irish Nationality and Citizenship Act, 1956 provides that the Minister may, in her absolute discretion, grant the application if satisfied that the applicant is of good character. The Minister, having considered your client’s application and the offences referred to in the attached report, has decided not to grant your client a certificate of naturalisation.

    A copy of the submission that was prepared for the Minister, with her decision annotated thereon, is enclosed for your information.

    There is no appeals process provided under this legislation. However, your client should be aware that they may reapply for the grant of a certificate of naturalisation at any time. When considering making such a re-application 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 application.”

  11. The submission to which the letter referred reads:

    “The Minister may in her absolute discretion grant a certificate of naturalisation, if satisfied that the applicant fulfils the statutory conditions specified in the Irish Nationality and Citizenship Act 1956, as amended.

    Comments:

    [The applicant] has come to the adverse attention of the Gardaí, see attached Garda report, copy of court orders and letter of explanation from the solicitor regarding the offences and why they were not disclosed on his application form. The resulting fine imposed on him by the court has been paid. The applicant did disclose a fine for €2,900 on his application form for driving a taxi without a license on 12/11/2010. This offence did not appear on the Garda report as the address the taxi was registered at was the applicant’s brothers (sic) address. The fine has been paid. He is employed by [a named employer] since 16th October 2008. He has one Irish citizen child who does not reside with him but he has regular access and supports financially.

    Recommendation:

    Given the nature and recency of the offences, I would recommend that the Minister defer making a decision on granting a certificate of naturalisation for a period of 18 months.”

  12. The submission was signed by three civil servants. The words “Refuse NW 13/08” was annotated thereon in manuscript.

    Leave

  13. On 10th November, 2014 leave was granted by MacEochaidh J. to seek judicial review by way of certiorari to quash the decision.

  14. The grounds upon which relief is sought are:

    1. The rationale of the decision is opaque and not patent from the terms of the decision...

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