Tag Archive for: Good character

REFUSAL OF NATURALISATION APPLICATION ON GOOD CHARACTER GROUNDS OVERTURNED BY HIGH COURT

REFUSAL OF NATURALISATION APPLICATION ON GOOD CHARACTER GROUNDS OVERTURNED BY HIGH COURT

Mr Justice Garrett Simons of the High Court has recently delivered a judgement in the case of A.J.A v Minister for Justice [2022] IEHC 162 JR.

The case concerned a refusal of an application for naturalisation.

The application was refused on the grounds that the Applicant did not meet the good character criterion under Section 15(1)(b) of the Irish Nationality and Citizenship Act, 1956. The Applicant was found to have submitted a potentially false Somali passport with her application.

The Applicant subsequently issued judicial review proceedings in the High Court to challenge the decision to refuse her application for a certificate of naturalisation. This was the second set of judicial review proceedings issued by the Applicant in respect of her application for naturalisation. The Applicant had issued judicial review proceedings in 2021 challenging the delay in processing her application. These proceedings were struck out of the High Court in January 2022, following the issuance of a decision on the Applicant’s application in December 2021.

The primary issue that was considered in the second set of judicial review proceedings was whether fair procedures had been observed in the Minister’s decision-making process.

The Applicant submitted her application for naturalisation on the 29th May 2017. On the 6th November 2017, the Applicant’s solicitors submitted a letter to the Minister that highlighted the Applicant’s concern as to the genuineness of the passport that she had submitted with her application. On the 10th May 2018, the Applicant’s solicitors sent a further letter to outline attempts made by the Applicant to have a new Somali passport issued. The Respondent then sent a letter in response, confirming that a thorough investigation was required as to the genuineness of the Applicant’s passport.  It was the Applicant herself who proactively contacted the Minister in relation to this issue and confirmed that she had always acted in good faith in respect of her application for a passport and in respect of her application for naturalisation.

The Applicant was ultimately successful in the High Court on the grounds that the Minister’s decision did not consider the Applicant’s explanation nor the exculpatory factors at issue.

Mr Justice Garrett Simons found that submission of the Minister did not meet the prescribed standard of fair procedures as it failed to acknowledge the explanations offered by the Applicant in respect of her passport. Ms Justice Garrett Simons found that, “The omission from the submission/recommendation of an accurate record of the explanation and exculpatory factors is fatal to the validity of the decision made.” The Court further found that the Minister’s decision did not meet the legal test for the adequacy of reasons.

The Court acknowledged that the submission of a false passport is an extremely serious issue and could of course legitimately give rise to a decision to refuse an application for Irish citizenship by way of naturalisation. The Court found that it was the manner in which the decision was made that was problematic, it was not clear whether the Applicant’s explanation that due to the circumstances in Somalia and the lack of Government, she could not confirm if her passport was valid or not,  had been provided to the Minister when the decision to refuse was made. The Court held that “The failure of the respondent in the present case to take the basic step of identifying the precise documents which had been submitted to the ultimate decision-maker is regrettable”.

The Minister of Justice’s decision to refuse the Applicant’s naturalisation application was quashed. The Court held:

 

  1. The submission/recommendation in the present case failed to meet the prescribed standard of fair procedures. The principal deficiency is that the submission/recommendation fails to record, even in the most cursory form, the explanations offered by the Applicant, through her solicitors, for the submission of the false passport. There is no reference to the practical difficulties asserted by the Applicant in obtaining a passport from Somalia given what is said to be the absence of a functioning central government there. Nor is there any reference to the efforts made by the Applicant to travel to the Somali Embassy in Belgium for the purpose of obtaining a passport. Although these events occurred after the submission of the false passport, they are, 13 arguably, indicative of the practical difficulties which a Somalia national, who has been long-term resident in the Irish State, faces in obtaining a passport from that country

The full judgement can be found here.

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

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.

RECENT HIGH COURT JUDGMENT UPHOLDS DECISION TO REFUSE IRISH PASSPORT TO CHILD OF SUBSIDIARY PROTECTION HOLDER

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.