Zaigham v Minister for Justice and Equality

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Faherty
• Judgment Date: 06 October 2017
• Neutral Citation: [2017] IEHC 630
• Docket Number: [2015 No. 725 J.R.]
• Date: 06 October 2017

[2017] IEHC 630

THE HIGH COURT

JUDICIAL REVIEW

Faherty J.

[2015 No. 725 J.R.]

BETWEEN

SYED ZAIGHAM

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Asylum, Immigration & Nationality – S.15 of the Irish Nationality and Citizenship Act 1956 – Judicial review – Refusal to grant certificate of naturalisation – Non-disclosure of material information – Character assessment – Good character

Facts: The present judicial review application filed by the applicant sought an order of certiorari for quashing the decision of the respondent under s.15 of the Irish Nationality and Citizenship Act 1956 ('Act') wherein the respondent refused to the grant of certificate of naturalisation to the applicant. The applicant was in Ireland ('State') on a student visa and, thereafter, he applied for an application for naturalisation as an Irish citizen, and in the said application, the applicant negated the commission of any offences against the laws of the State, but in real facts, he was fined for non-display of parking disc. The application was refused on the grounds that the failure to disclose material information was an offence under s.29 of the Act.

Ms. Justice Faherty refused to grant the relief sought. The Court stated that the refusal of the respondent was not based on the existence of the offences but on the non-disclosure of the said offences and the respondent was fair to make a character assessment on the non-disclosure. The Court also stated that it was not the duty of the respondent to guide the applicant with regard to the future re-application for naturalisation. The Court observed that the prescribed application form had clearly mentioned that an applicant must mention the details of his convictions, including any traffic violations, and in such circumstances, it could not be believed that the applicant's omission to give the relevant information was non-deliberate. The Court held that the respondent was obliged to consider the non-disclosure by the applicant as a factor for satisfying itself about the 'good character' requirement.

JUDGMENT of Ms. Justice Faherty delivered on the 6th day of October, 2017

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, ('the 1956 Act') refusing the grant of a certificate of naturalisation to the applicant, as notified to him on 21st September, 2015

Background

2 The applicant is a Pakistani national who arrived in Ireland in 2003 on a student visa. He has resided in the State on a Stamp 4/work to permit basis since 2007. He is currently employed by Tesco Ireland as a sales assistant. In 2010 he married a Pakistani national. His spouse resides in Pakistan together with the child of the marriage.

3 The applicant submitted an application for naturalisation as an Irish citizen on 18th June, 2013. In the Form 8 which the applicant completed for the purposes of his application 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'.

4 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) ...' He outlined that on 6th January, 2011, he was fined in Cork District Court for non-display of parking disc.

5 On 20th November, 2013, the respondent wrote to the applicant requesting him to confirm, inter alia, whether fines of:

'€300 – No Road Tax

€200 – Valid NCT DISC not Displayed

€250 – Driving without Driving Licence' which were imposed on the applicant at Limerick City Court on 10th June, 2010 had been paid. The applicant was asked to provide proof of payment and to submit an explanation for not disclosing those offences on his application form.

6 On 23rd November, 2013, the applicant advised the respondent that he omitted to mention the said offences by mistake and that the omission was not deliberate. He advised that he had searched for and found the receipts in respect of the final payments which he enclosed with his letter. He advised that this omission was the 'biggest ever blunder' he had made in eleven years in the State. He explained that his failure to mention the offences was due to the fact that these offences had occurred some three years prior to his application. He went on to state that it had not been his intention to omit the 2010 offences from his application and again apologised for his oversight. Also enclosed with the letter was the receipt of payment of the 2011 fine which he had disclosed in his application.

7 On 7th July, 2014, the applicant furnished a copy of his Pakistani driving licence and international driving permit following request for same by the respondent. He also advised that he had understood (erroneously) that he could drive in the State with the type of driving licence he held. He advised the respondent that at all times he had held a policy of insurance. He explained that since the 2010 offences he had not driven in Ireland, albeit that he had tried to obtain a driving licence in the State but had failed the theory test on three occasions. It was further explained that he had sold his motor car. On 27th August, 2014, in response to a request from the respondent, the applicant supplied details of his vehicle registration but advised that he had no record of the sale of the car or any correspondence in relation to his driver theory tests. In his letter, the applicant again apologised for his blunder in not having disclosed the 2010 offences.

8 By letter dated 21st September, 2015, the applicant's application for naturalisation was refused. The letter advised as follows:

'The Minister has considered your 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 application, has decided not to grant you a certificate of naturalisation ...

There is no appeals process provided under this legislation. However, you should be aware that you may re-apply for the grant of a certificate of naturalisation at any time. When considering making such a re-application you should give due regard to the reasons for refusal given in the attached submission. Having said this, any future application will be considered taking into account all statutory and administrative conditions applicable at the time of application.'

9 A copy of the submission which had been prepared for the respondent was enclosed with the letter. It reads as follows:

'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. He disclosed a non display of a parking disc fine dated 06/01/2011 but did not disclose on his application the offences dated 10/06/2010, see attached note and letter of explanation from the applicant. The resulting fines imposed on him by the court have been paid. He was employed as a chef ... from June 2007 to June 2012. He is employed as a customer assistant by Tesco Ltd, Limerick since September, 2012.

Recommendation: Failure to disclose material information is an offence under Section 29 of [the 1956 Act]. As the applicant did not disclose the 2010 offence on his application form I cannot be satisfied that the applicant is of good character and therefore cannot recommend that the Minister grant a certificate of naturalisation in this case.'

The submission was signed by three civil servants in the respondent's department.

Leave

10 On 21st December, 2015, leave was granted by Mac Eochaidh J. to seek judicial review. The grounds upon which relief was sought are:

1. The said refusal was unreasonable and/or disproportionate. Given that the applicant has lived, worked and paid taxes in Ireland for twelve years, and has had no convictions since 2010, when he was fined €750 for minor traffic offences, he is entitled to clear and specific reasons for the refusal of naturalisation, and the reasons should be substantial. It was unreasonable or disproportionate to refuse the applicant naturalisation in 2015 only on the basis that he had forgotten that he had been fined for minor road traffic offences in 2010, when making his application in 2013. Furthermore, he had apologised for this non-disclosure in 2013 when it was brought to his attention and has been granted permission to remain on Stamp 4 conditions without any difficulty on several occasions since 2010.

2. The naturalisation application is particularly important to the applicant and the outcome significant. If he were an Irish citizen, he would meet the income threshold for family reunification provided for in the respondent's 'Family Reunification Guidelines' and would likely be permitted to bring his spouse and his child to Ireland and enjoy family life here.

3. The respondent erred in law in determining character only by reference to the alleged non disclosure of minor offences which dated from 2010.

4. While the respondent's refusal letter indicates that the applicant can re-apply for a naturalisation certificate, it states that that he should have regard to the reasons for refusal. There is no indication that the non-disclosure in 2013 will ever be forgiven or that he might be considered of good character again in any future application.

11 A statement of opposition was filed on 5th July, 2016,...