The conferral of citizenship has many benefits, most notably the fact that an Irish citizen is also an EU citizen and is thereby entitled to all of the benefits derived from the EU directives on the right of citizens of the EU and their family members to move and reside freely within the territory of the member states.
Recently, a number of decisions to refuse and to revoke citizenship applications have been the subject of very significant constitutional challenges.
For the purposes of this article, it is proposed to examine some recent jurisprudence concerning refusals for reasons of character of the applicant and failure of the applicant to meet the residency requirements, and to examine recent jurisprudence in the area of revocation of citizenship, which renders the road to citizenship less straightforward that it ever was.
Once a decision to refuse an application for naturalisation is made, there is no right of appeal, which means that the only means of challenging a refusal is by way of an application for judicial review before the High Court.
Four green fields
The 2012 decision of the Supreme Court in the case of Mallak v Minister for Justice established that the minister is under a duty to provide an applicant with reasons for refusal, or at least to provide justification for not providing reasons.
Before Mallak, the High Court position was that the minister did not need any reason for refusal, let alone provide one. The principle has since been extended by the case law referred to later in this article.
Section 15A(1)(b) of the Irish Nationality and Citizenship Act 1956, as amended, provides that the minister may, at her absolute discretion, grant the application if satisfied that the applicant is of good character.
Recent case law has established that the minister is obliged to provide a proper rationale as to why character was called into question and, indeed, if the applicant is ultimately refused, the rationale for that refusal.
In the recent Court of Appeal case of MNN v Minister for Justice, the court found that the minister’s decision did not provide the rationale for determining the basis upon which two road-traffic offences and another alleged incident led to a decision that the appellant had failed to meet the good-character requirement.
The minister had made the decision without putting an incident and its subsequent strike-out order in its proper context. It was found that the minister did not consider the ‘alleged incident’ as more than alleged.
It was clear that the court could not decipher what view the minister took of the alleged incident, but it was also evident that the minister took some view, as otherwise there would have been no need to refer to the nature of the alleged incident when coming to the decision on the applicant’s character.
The court ordered that the minister’s decision be quashed, and that the application be readmitted to the minister for consideration in accordance with the rules of natural and constitutional justice.
Erin go bragh
In another recent case, Talla v Minister for Justice, the applicant’s citizenship application was refused on the basis that the minister was not satisfied of his ‘good character’ and referred to the applicant as having a “history of non-compliance with the laws of the State”.
The applicant’s judicial review application was dismissed by the High Court, and subsequently appealed to the Court of Appeal. The Court of Appeal was not satisfied that the minister had considered and weighed all relevant considerations, including the man’s explanations for the motoring offences.
Mr Justice Haughton stated: “Notwithstanding that the minister has an absolute discretion in determining an application for a certificate of naturalisation, it is beyond question that the minister has a duty to act fairly and judicially in accordance with the principles of constitutional justice. It follows that, in addressing the condition that an applicant be of ‘good character’, the minister must consider and analyse all relevant material, and a failure to do so makes the lawfulness of the decision susceptible to judicial review.
“Put another way, the appellant had a legitimate expectation that the material favourable to him, including explanations for road-traffic offences, would be considered and weighed by the minister.”
The court did note that a citizenship applicant must disclose previous convictions, even if ‘spent convictions’, and that the minister is entitled to have regard to what would otherwise be spent convictions in considering good character for citizenship applications. This is an important observation to be noted by applicants who are applying for citizenship, and who mistakenly believe that spent convictions are not of relevance to their application.
The court held that the minister, in particular, failed to express his rationale for deciding that the ‘nature of the offences’ meant that the applicant was not a person of ‘good character’.
Back home in Derry
There has been a growing number of refusals in recent years based on national security concerns. In May 2019, the Supreme Court ruled in the case of AP v Minister for Justice regarding the refusal to grant naturalisation to a recognised refugee on national security grounds.
The minister provided no reason for the refusal, relying on certain provisions of the Freedom of Information Act 1997, as amended, and for reasons that the appellant’s rights to know the content of the materials relied on was outweighed by “national security considerations” in maintaining confidentiality over the information concerned.
The argument was upheld by the High Court and the Court of Appeal. The Supreme Court held that the ultimate decision on whether the State’s interests outweigh the requirement to provide documents is one that must be made by a court rather than a State authority.
The court held that a failure to give more detailed reasons can only be regarded as justified if that failure impairs the entitlement to reasons to the minimum extent necessary. It held that the State did not abide by the principles of proportionality in impacting the rights of Mr P to the minimum extent.
On 1 October 2020, the Minister for Justice Helen McEntee announced the establishment of a single-person committee of inquiry, which will be served by retired High Court Judge John Hedigan. The committee is being established to review, upon request from the applicant, the material upon which the decision to refuse a certificate of naturalisation was made, in circumstances where the basis of refusal is, in whole or in part, predicated upon national security concerns.
Section 15(1)(d) of the Citizenship Acts, as amended, provides that a condition of naturalisation for applicants not relying upon marriage or civil partnership is that the applicant has had, immediately prior to the date of the application, one year’s continuous residence in the State and, during the eight years preceding that period, a total residence in the State amounting to four years.
A refusal by the minister to accept that the applicant was continuously resident in the year prior to making the application was challenged in the 2019 case of Roderick Jones v Minister for Justice.
In July 2019, the High Court ruled that the then practice of the Minister for Justice in allowing applicants six weeks out of the country, for holiday or other reasons, and more time in exceptional circumstances, was not permitted by section 15(1)(d) of the Citizenship Act (as amended), but also that ‘continuous residence’ required presence in the State, uninterrupted by even a single night’s absence over the 365 days of the year.
The Court of Appeal decision delivered in November 2019 provided a welcome clarification on the law governing absences from the State for persons applying to be granted a certificate of naturalisation.
The Court of Appeal overturned the continuous residency finding of the High Court. It found that the policy of the minister was not a rigid or inflexible policy, and that the policy was reasonable.
The court found that the requirement of ‘continuous residence’ does not require uninterrupted presence in the State throughout the entirety of the relevant year, nor does it impose a complete prohibition on extra-territorial travel, as the High Court had suggested.
The court concluded that the minister was correct in finding that the applicant did not satisfy the continuous residency requirement, and noted that the fact that most of the absences from the State were not work related was ‘material’. The court found that the approach taken in the case was “reasonable”, and held that the minister’s policy was not unlawful.
While the decision provides significant clarity on the law, further clarity and reform is required in the area, particularly in relation to the six-week absence policy and what exceptional circumstances and work-related travel are allowed.
The judgment takes us back to the position, pre July 2019, where absences of up to six weeks were permitted, with no guidelines related to work or allowable absences in exceptional circumstances.
There has been an increase in the revocation of Irish citizenship by the minister in recent years. The minister may revoke a certificate of naturalisation under section 19(1) of the Citizenship Acts for a variety of reasons, including:
a) The certificate was procured by fraud, misrepresentation, or concealment of material facts or circumstances,
b) A person may have shown himself to have failed in his duty of fidelity to the nation and loyalty to the State,
c) A person has been ordinarily resident outside of Ireland for a period of seven years without reasonable excuse, and has not during that period registered annually in the prescribed manner his intention to retain citizenship,
d) The person to whom it was granted is also under the law of a country at war with the State, or
e) A person has by any voluntary act, other than marriage, acquired another citizenship.
In the recent case of UM (a minor) v Minister for Foreign Affairs and Ors, the applicant’s father procured citizenship in the State because his father had been present in the State as a recognised refugee for the requisite period, pursuant to the Citizenship Acts. However, his father’s declaration of refugee status was revoked for reasons that it had been granted after false and misleading information had been provided to claim asylum.
The minister failed to accept that UM was an Irish citizen, and UM’s application for an Irish passport was refused on that basis. Stewart J in the High Court held that residence procured in that way could not be deemed to be reckonable residence for the purposes of citizenship.
The Court of Appeal upheld the High Court’s finding and found that the revocation of the applicant’s father’s declaration of refugee status meant that the declaration was not in force during the time he was physically present in the State and, therefore, his residence was not deemed reckonable for the purposes of his son’s citizenship application.
The west coast of Clare
On 14 October 2020, the Supreme Court delivered its judgment in a highly significant case concerning the issue of revocation of citizenship. Ali Damache v Minister for Justice concerns the appellant, an Irish citizen since 2008, who is serving a sentence in the US after pleading guilty to having conspired to materially assist a terrorist group.
The appellant was served a revocation notice on the basis of having shown disloyalty to the State. No revocation decision had been made at the time the applicant instituted his judicial review proceedings. In 2019, the High Court dismissed the applicant’s judicial review application, which primarily challenged the legality and constitutionality of section 19 of the Citizenship Act.
The Supreme Court concluded that, because of the drastic consequences a revocation of naturalisation might have, a high standard of justice must apply. The Supreme Court held that that process provided for in section 19 did not provide the procedural safeguards required to meet the high standards of natural justice applicable.
In particular, an applicant must be entitled to a process that provides minimal procedural safeguards, including an independent and impartial decision-maker.
It held that section 19 was invalid, having regard to the provisions of the Constitution, and it allowed the appeal from the High Court decision.
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