X.P. v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Gilligan,Mr. Justice Hogan
• Judgment Date: 18 April 2018
• Neutral Citation: [2018] IECA 112
• Date: 18 April 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 112 2016, No. 411 [2016 411]

[2018] IECA 112

THE COURT OF APPEAL

Hogan J.

Gilligan J.

Peart J.

Hogan J.

Gilligan J.

Neutral Citation Number: [2018] IECA 112

2016, No. 411

[2016 411]

BETWEEN

X.P.

APPELLANT/APPLICANT

- AND -

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

BETWEEN

A.P.

APPELLANT/APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Burden of proof – Order of mandamus – Naturalisation – Appellant seeking an order of certiorari in respect of a decision of the respondent – Whether the appellant failed to discharge the burden of proof that there was an error in the decision making process engaged in by the respondent

Facts: The High Court (Stewart J), in a reserved judgment handed down on the 19th July 2016, held that the appellant failed to discharge the burden of proof that there was an error in the decision making process engaged in by the respondent, the Minister for Justice and Equality, in circumstances where the appellant's application for an order of certiorari in respect of the decision of the respondent made on the 1st September 2014 to refuse an application by the appellant for naturalisation as an Irish citizen and an application for an order of mandamus requiring the respondent to disclose the information adversely affecting the appellant were denied. It was from that decision that the appellant appealed to the Court of Appeal.

Held by Gilligan J that he found no fault in the reasoning and conclusion as arrived at in the judgment of Stewart J and no reason, on the basis of the submissions made to the Court on the appellant's behalf, as to why in some way that decision should be set aside.

Gilligan J held that he would dismiss the appellant's appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice Hogan delivered on the 18th day of April 2018

1 I have had the opportunity of reading in draft the judgment which Gilligan J. is about to deliver and I gratefully adopt the more detailed statement of facts contained in that judgment. I agree with his conclusions.

2 It gives me no pleasure to have to reach this conclusion because I agree entirely with Gilligan J. that it is in many respects unfair that the Minister should rely on material which is said to involve highly sensitive matters touching on national security of which the applicant, Mr. P., has not had sight and in respect of which he knows nothing. Mr. P. cannot accordingly address these national security concerns in any realistic way so far as his application for naturalisation pursuant to s. 15 of the Irish Nationality and Citizenship Act 1956 (as amended) is concerned

3 This state of affairs cuts across the basic constitutional value of fair procedures since it is elementary law that a decision maker exercising statutory powers cannot generally rely on material not disclosed to the applicant, at least absent exceptional circumstances: see, e.g., Kiely v. Minister for Social Welfare (No.2) [1977] I.R. 287. The circumstances here are, however, quite exceptional and touch directly on national security concerns and, it seems, sensitive diplomatic channels involving foreign States. It is already clear from the separate (and un-appealed) decision of McDermott J. in the High Court on the issue of privilege that he has reviewed the relevant documentation on which the Minister relies. He accordingly has ruled that the Minister may properly claim a public interest immunity from disclosure in respects of key parts of these documents. It must therefore be accepted that there is a judicial finding to the effect that the material which was not disclosed to Mr. P. in the course of his naturalisation application presents real and pressing national security concerns.

4 In these circumstances, like Gilligan J., I feel compelled to hold that the present case is one where this Court's capacity, in the words of Article 40.3 of the Constitution, to defend and vindicate the fair procedure rights of the applicant 'as far as practicable' is constrained by these self same national security concerns. While I accept that this is in many respects unsatisfactory, the only other step presently open to this Court - namely, to order the release of the material on even a redacted or summary basis to Mr. P. - is simply not a practicable one.

5 Counsel for the applicant, Mr. Kelly S.C., drew our attention to the position which obtains in some other jurisdictions where there is an elaborate system of special counsel who have been vetted by intelligence and security services and who are permitted to look at this material, even if the client in question is not. But the very creation of such a system itself raises wider issues of security policy in respect of which the judiciary is ill-suited to determine or design and, more importantly, in respect of which tasks they have no democratic mandate: see here, by analogy, the recent decision of this Court in Moore v. Minister for Arts, Heritage and the Gaeltacht [2018] IECA 28 in which we held that, for somewhat similar reasons, the courts had no free standing power to determine in the first instance whether a particular place, building or monument should be regarded as a national monument for the purposes of s. 2 of the National Monuments Act 1930. The creation of such a system of special counsel - and I refrain from expressing any view on the merits of such a proposal - simply lies beyond the capacity of the judicial branch of government to create or design.

Whether the grant of citizenship by naturalisation involves the implementation of European Union law for the purposes of Article 51(1) of the EU Charter of Fundamental Rights and Freedoms

6 I now turn to the Mr. P.'s other major submission, namely, that the refusal by the Minister to grant a certificate of naturalisation involves the implementation by the State of European Union law for the purposes of Article 51.1 of the EU Charter of Fundamental Rights and Freedoms, thus triggering – or so the argument runs – the guarantees to good administration and access to the file contained in in Article 41.2(b) of the Charter and the right to an effective remedy in Article 47 of the Charter.

7 Article 9 of the Constitution deals with citizenship. Article 9.1.1 provides that every one who was a citizen of Saorstát Éireann became a citizen of Ireland on the coming into force of the Constitution on 29th December 1937. Save for the specific position of certain categories of persons born on the island of Ireland as provided for in Article 9.2 (as inserted by the 19th Amendment of the Constitution Act 1998 and as subsequently modified by the 27th Amendment of the Constitution Act 2004) who are entitled to such citizenship by virtue of their birth and parentage, Article 9.1.2 of the Constitution provides that the 'future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law.'

8 It is Article 9.1.2 which is the foundational constitutional provision so far as Mr. P. is concerned since he was not born on the island of Ireland but was instead born in a foreign State. To qualify for citizenship, therefore, Mr. P. must, therefore, comply with a law regulating the entitlement to citizenship which has been enacted in accordance with Article 9.1.2 of the Constitution.

9 There is no dispute but that the law in question is the Irish Citizenship and Nationality Act 1956 ('the 1956 Act') (as amended). As there is no suggestion that Mr. P. is entitled to citizenship by descent, his entitlement to that citizenship accordingly must rest on the naturalisation provisions of s. 15 of the 1956 Act (as amended). Section 15 of the 1956 Act provides that the Minister has an absolute discretion to grant a certificate of naturalisation to a person where the Minister is satisfied that the person:

'(a) is of full age;

(b) is of good character;

(c) has resided continuously in the State for at least one year immediately before the date of the application and has had a total residence in the State of four years during the eight immediately preceding years;

(d) intends in good faith to continue to reside in the State after naturalisation; and

(e) has made a declaration in the prescribed manner of fidelity to the nation and loyalty to the State either before a District Judge in open court, in a citizenship ceremony or in such manner as the Minister, for special reasons, allows.'

10 Perhaps the first thing to note about these provisions in this context is that the decision whether to grant citizenship by naturalisation is an executive act which is provided for by a law enacted by the Oireachtas in accordance with Article 9.1.2. In other words, the decision to grant citizenship by naturalisation represents an autonomous act of sovereign power by the State in accordance with the Constitution. Indeed, the grant of citizenship to a foreign national – coupled as it is with the requirement of Article 9.3 of the Constitution that all citizens must demonstrate loyalty and fidelity to the State – may be regarded as part of the inviolate core of national sovereignty envisaged by Article 5 of the Constitution, so that if State lacked this power it might not be regarded as a fully sovereign state within the sphere of international law.

11 While this State has elected to share key parts of its sovereignty with the other Member States of the European Union in the manner contemplated by Article 29.4.3 et seq. of the Constitution, decision-making in respect of who is entitled to citizenship of the State is not one of them. It is true that Article 20(1) TEU provides that every citizen of a Member State shall also be an European Union citizen. At the same time, however, it is also clear that the determination of who is to be a citizen of a particular member state remains, in principle, at least, a matter exclusively for the member state concerned: see, e.g., C-200/02 Chen [2004] E.C.R. I -9925; Case C-135/08 Rottmann EU:C:...