Posts

IMPORTANT SUPREME COURT JUDGEMENT ON REVOCATION OF IRISH CITIZENSHIP

The Supreme Court have made an important judgement relating to the constitutionality of Section 19 of the Irish Naturalisation and Citizenship Act 1956, which governs revocation of citizenship obtained through Naturalisation.

Section 19 provides that once the Minister issues a proposal to revoke a certificate of naturalisation to the person concerned, the person can either accept the proposal or can seek an inquiry into the matter before a Committee of Inquiry. The Committee of Inquiry will comprise of a number of persons, one of whom has judicial experience.

The Committee will review the matter and make a report to the Minister. The Minister is not bound by the report but will take it into consideration in making a final decision as to whether to revoke a certificate of naturalisation. There is no appeal in the legislation in respect of a decision to revoke a certificate of naturalisation.

Mr Ali Damache, the applicant in the case has been successful in his appeal to the Supreme Court having lost his case in the High Court. Mr Damache brought proceedings to challenge a proposal to revoke his certificate of naturalisation.  A preliminary point in the proceedings was that Mr Damache was premature in bringing his case, as he had only received a proposal to revoke rather than any decision to revoke. The Court found that it is generally the case that it is the Courts role to review decision made, after all possible avenues have been exhausted, however as Mr Damache’s case went to the heart of the constitutionality of Section 19 the Courts were able to decide upon the matter.

The main arguments raise by the applicant in the proceedings in summary:

  1. The revocation of Irish citizenship should be a matter dealt with by the Courts and not the Minister for Justice due to the far reaching impact for persons whose naturalisation is to be revoked;
  2. The procedure as outlined in Section 19 lacked the robust fair procedures required by law for a process which can have such a huge and far reaching impact on a person and therefore amounted to a breach of natural justice.
  3. That Section 19 of the Irish Naturalisation and Citizenship Act 1956 was repugnant to the Constitution of Ireland;

In relation to the first point the Supreme Court held that the revocation of a certificate of naturalisation is not the administration of justice but is the exercise of an executive function. It was therefore found that the revocation of citizenship is not a matter over which the Courts must have jurisdiction. The Court noted that although there was limited evidence before the Court of the procedure in other jurisdictions, it was found to be common that the revocation of citizenship in other countries could be a matter for the executive and not the courts.

In relation to the second argument the Court held that due to the severe and  drastic consequences a revocation of a certificate of naturalisation may have for a person, a high standard of natural justice must apply to any such process. The Court concluded that there was no reason to find that the Committee was anything but independent in nature and there was no breach of naturalisation justice on the basis of lack of independence.

However the Court found that due to the severity of the possible outcome of a person the process provided for by section 19,  does not provide the procedural safeguards required to meet the high standards of natural justice applicable to a person facing such severe consequences.

The Court concluded:

…an individual facing the prospect of revocation of a Certificate of Naturalisation must be entitled to a process which provides minimum procedural safeguards including an independent and impartial decision-maker. In the circumstances, I have come to the conclusion that s.19 is does not meet the high standards of natural justice required and is therefore invalid having regard to the provisions of the Constitution.

ANOTHER IMPORTANT JUDGEMENT ON GOOD CHARACTER ASSESSMENTS IN NATURALISATION APPLICATIONS

The Court of Appeal have delivered another important judgement relating to the Minister’s assessement of “good character” for the purposes of applications for naturalisation in the case of MNN v Minister for Justice and Equality [2020] IECA 187.

Along with the recent judgement of Talla v Minister for Justice and Equality [2020] IECA 135 this judgement is an important ruling with respect to the Minister’s obligations when conducting assessments of “good character” and could see a shift in the way in which applications for naturalisation are to be considered by the Minister.

The applicant in this case applied for naturalisation in October 2013 and received a refusal of his application based on good character grounds.

The applicant declared in his application that he had two convictions for road traffic matters, which occurred in December 2012, namely failure to display road tax and failure to display insurance disc. The applicant had only become aware of these matters in 2013 as the fixed penalty notices and summons had been sent to his former address with his spouse, which he never received.

In early 2016, the Minister sought further information from the applicant in relation to an incident in which he was described in the report as a “witness”, where Section 12 of the Child Care Act had been invoked following a domestic altercation.

The applicant provided a thorough explanation for this matter and had instructed legal representation in September 2017 to make further representations to the Minister. The court described the applicant as providing a “frank and forthright explanation”.

Some four and half years after applying for naturalisation, the applicant’s application was refused in February 2018. The Court examined in detail the “submission” upon which the decision to refuse was based. The Court noted that it was unclear if the decision maker had access to all the relevant information and context, including the applicant’s detailed representations in relation to the incidents.

The Court highlighted that the Minister’s absolute discretion in determining applications for naturalisation does not “relieve the Minister of the obligation to operate within the rule of law”.

The Court goes on to outline a set of principles to be applied in assessing good character and notes that even though naturalisation is a privilege, applicants do not enjoy “inferior legal protection”. Good character is to be assessed “against reasonable standards of civic responsibility” and the connection between character and criminality can only be established when the Minister has all information including “context and mitigating factors”. The Minister must undertake a comprehensive assessment of the person and “all aspects of character”, and “Whether the appellant is a model citizen plays no part in what the Minister has to determine…”.

The Court set out the test for assessing applicants who may have a criminal offence in their past:

“Criminal convictions are relevant to the assessment of character, but they are not, in themselves, determinative thereof. Thus, it is not sufficient for the Minister to have regard only to the fact that an applicant for naturalisation has criminal convictions. What is required is a consideration of ‘all aspects of an applicant’s character’ in deciding whether he or she meets the relevant requirement for the purpose of s. 15 of the Act. The correct test is worth repeating. It is not whether an applicant has previous criminal convictions- it is wider in scope than that. An applicant may be assessed as a person of good character even if he has criminal convictions, perhaps, all the more, so if the convictions in question relate to strict liability offence. Such offences do not depend of personal moral culpability. As noted by Lang J. in Hiri, a person may still be of good character notwithstanding a criminal conviction and a person may not be of good character despite having a clean criminal record.”

The Court reiterates that the Minister is entitled to take into consideration “allegations” or matters that do not result in criminal proceedings, however they should be taken into assessment with “all relevant information”.

The Minster in this case was found to have considered the “alleged incidents” as more than alleged.

The Court emphasised that where the Minister relies on traffic offences to determine that the appellant is not of good character, he must have an understanding of the nature of the offences. Also, the understanding that leads the Minister to conclude that the applicant is not of good character must be stated in reasons that can be understood by the Applicant.

The Court was not satisfied that the Minister had before him all the relevant information to enable him to form a reasonable view as to whether the appellant was of good character. The Court emphasised that there was nothing on the face of the decision to suggest the entire file, including the applicant’s submissions regarding the incidents, were considered by the decision maker.

The decision was therefore held to be unlawful as it was not evident that the Minister had considered the applicant’s submissions in reaching the conclusion that the applicant was not of good character.

The decision making process in itself, was found by the Court to be in breach of natural and constitutional justice.

This is a very significant judgement from the Court of Appeal, because it raises questions regarding the legality of many decisions of the Minister in refusing naturalisation on good character grounds.

If you have been refused naturalisation on the grounds of good character please contact the office to discuss your case with us.

COURT OF APPEAL DECISION ON REFUSAL OF NATURALISATION BASED ON GOOD CHARACTER ARISING FROM ROAD TRAFFIC OFFENCES

The Court of Appeal delivered its judgement on 12th May 2020 in the case of Talla v Minister for Justice and Equality [2020] IECA 135.

The case concerned a Kosovan man whose application for naturalisation was refused on the basis that he was not of “good character” due to having previously committed road traffic offences in the State. He had travelled to Ireland in 2002 when he was 14 years old, and has two Irish born children.

The traffic offences in question related to a routine speeding offence in 2011, to which he was fined €380 and a conviction for driving his brother’s car without the appropriate insurance in the same year.  It was noted that the Appellant believed he was covered by insurance and an insurance company had said he was a named driver on his brother’s policy but was not insured on the particular car he was driving. He subsequently paid a fine of €400 for this offence.

In 2016, other charges including failure to produce were struck out and an insurance charge was brought to court in September 2017. It is noted that the Appellant pleaded guilty to this offence but that the District Judge accepted the explanation and plea of mitigation that the insurance policy had not been renewed as a result of a genuine oversight on the part of the Appellant’s brother.

The Appellant applied for naturalisation in 2013 and answered “no” to a series of questions concerning offences and convictions.

When these incidents were brought to the attention of the Appellant and his solicitors in 2014 and in 2017, during the process of his application, explanations were provided to INIS for each of these incidents in considerable detail.

In February 2018, the Minister refused the application for naturalisation. The decision had described the Applicant as having “a history of non-compliance with the laws of the State”.

Delivering the judgement, Mr Justice Haughton, said that that the submission prepared for the Minister which recommended the refusal of his application, failed to refer to any of the explanatory information provided by the Applicant’s solicitors.

The three judge Court of Appeal found that it was not evident that those who had prepared the submission which included an An Garda Siochana report, had considered the exculpatory information presented to INIS.

The Court of Appeal confirmed that the Minister is entitled to take into account a series of infringements of the Road Traffic Acts in assessing whether an applicant is of “good character”.

However, the Court clarified that:

“In the instant case it is “the nature of the offences” that led the Minister to refuse the
application on the grounds that the appellant was not of “good character”. As noted by Faherty J [Zaigham v MJELR [2017] IEHC 630] not all road traffic offences will debar an application. Minor offences do not necessarily reflect on a person’s “good character”, particularly if balanced against other matters in their favour. It is therefore the case that where there are road traffic offences it is the nature of those offences and the circumstances in which they were committed that will demand more attention”. [Para 36]

The Court confirmed that the Minister is entitled to take into consideration “spent convictions” (7 years since effective date of conviction) in considering “good character” for the purpose of assessing naturalisation applications.

Yet, the Court of Appeal reaffirmed in paragraph 37 that:

“While criminal convictions, or the commission of offences, are relevant to
this enquiry and assessment, it is wider in scope than that, and the outline facts and any mitigating circumstances, the period of time that has elapsed since the last conviction, and other factors that may be relevant to character, must all be taken into consideration”.

The Court went on to consider the importance of the Minister providing reasons for a refusal, on the basis of a history of road traffic offences, where the applicant may re-apply in the future. Further, where the Minister relies on the nature of road traffic offences to determine that an applicant is not of good character, the understanding of the nature of offences which led to this conclusion needs to be expressed in reasons that can be understood by the applicant.

The Court of Appeal ultimately overturned the decision of the High Court and found that it could not be concluded that the decision maker- the Director General on behalf of the Minister- had considered all relevant material on file.

The judges opined that a number of concerns arose from the fact that there was no mention in the submission to the Minister of any of the explanations given by the Applicant or his solicitors. The Court found this surprising as they considered them to contain facts of central importance and the lack of such mitigating information therefore created an imbalance.

The Court of Appeal concluded that the Minister had not considered and weighed all relevant considerations before deciding to refuse a certificate for naturalisation and ordered that the decision be quashed and the application be reconsidered in accordance with this judgement.

We at Berkeley Solicitors welcome this very encouraging clarification surrounding road traffic offences and the requirement to be of “good character” in accordance with Section 15A(1) of the Irish Nationality and Citizenship Act 1956.

In our experience road traffic offences are one of the most common reasons for refusal of naturalisation applications, based on good character grounds.

It is very clear from the judgement that the deciding officer’s submission to the Minister regarding such offences must also include a summary of mitigating factors, or otherwise the Minister’s conclusion on good character is not reached in a fair and balanced manner.

We would submit that the time that has elapsed since the minor road traffic offences and the fact an applicant has not had any further offences are mitigating factors that should always be brought to the Minister’s attention, and minor traffic offences should not be held against Applicants indefinitely.

Our office is experienced in the submission of applications for naturalisation as an Irish citizen and do our best to assist our clients through this lengthy application process. If you or your family are impacted by these issues or similar issues, please do not hesitate to contact us to discuss this in more detail.

The judgement can be read in full here.