Vishteh v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 04 March 2019
• Neutral Citation: [2019] IEHC 131
• Docket Number: 2018 No. 260 JR
• Court: High Court
• Date: 04 March 2019

[2019] IEHC 131

THE HIGH COURT

Barrett J.

2018 No. 260 JR

Between:

MEHDI KHODDAM VISHTEH

Applicant

– and –

MINISTER FOR JUSTICE AND EQUALITY

Respondent

Asylum, Immigration and Nationality – Judicial Review – Irish Nationality and Citizenship Act 1956 – Applicant seeking order of certiorari quashing decision of the Minister denying his application for naturalisation – Whether the Minister could use his discretion to require the applicant to provide documents that were impossible for the applicant to obtain

Facts: The applicant, an embassy worker, applied for naturalisation pursuant to s. 15 of the Irish Nationality and Citizenship Act 1956, as amended (‘the Act’). The Minister required supporting evidence, pursuant to s. 17 of the Act, in the form of a letter from the embassy stating the dates of the applicant’s employment. The applicant was unable to provide this letter through no fault of his own and the Minister deemed the application ineligible stating that the applicant did not have the required reckonable residence. The applicant sought an order of certiorari quashing the Minister’s decision.

Held by Barrett J that requiring the applicant to produce a document in evidence that was impossible to obtain was an arbitrary use of his discretion. Barrett J granted the order of certiorari quashing the decision and also granted a declaration that when an application for naturalisation is made pursuant to s. 15 of the Act by a person lawfully resident in Ireland by virtue of his employment at a diplomatic mission, and the applicant is unable to provide certain requested evidence, the Minister must consider the totality of available evidence before him before making a decision.

Relief granted.

JUDGMENT of Mr Justice Max Barrett delivered on 4th March, 2019.

1 The court notes the Minister's wide discretion in the area of naturalisation, as acknowledged, inter alia, in Nsungani v. MJE [2018] IEHC 758 and the cases referred to therein.

2 Following on Rodis v. MJE [2016] IEHC 360, and pursuant to s.15 of the Irish Nationality and Citizenship Act 1956, as amended (the “Act”), Mr Vishteh, an embassy employee, has applied for naturalisation. (References to statutory provisions hereafter are to provisions of the Act). By decision of the Minister of 20.02.2018 (the “Decision”), Mr Vishteh's application ‘ has been deemed ineligible’. In the Decision (addressed to Mr Vishteh's solicitors), the Minister states: ‘ For…residence to be…reckonable…your client would be required to submit a letter from the embassy stating dates of employment at the embassy, the letter...