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SUPREME COURT DELIVER JUDGEMENT IN P -v- MINISTER FOR JUSTICE AND EQUALITY [2019] IESC 47

An important judgement has been delivered by the Supreme Court in the case of P -v- Minister for Justice and Equality [2019] IESC 47.

The Courts highlighted that this is a difficult and novel area of law. O’Donnell J in his judgement noted: “this is a very difficult area, with competing considerations, an absence of legislative structure, and little by way of guidance from the decided cases.” 

The applicant in his proceedings contended that the reasons provided to him in the refusal of his application for naturalisation remained insufficient and that it ought to have been possible for the Minister to offer to provide “the gist” of the information relied upon.

The applicant contended that if necessary, a special advocate procedure ought to have been adopted.

There is a special advocate procedure in place in other common law countries, most notably the United Kingdom, Canada, and New Zealand, which are now the subject of detailed procedures providing for the appointment of a special advocate, and what are described as closed material hearings.

Two judgements were issued in this matter, by Mr Justice Clarke C.J. and Mr Justice O’Donnell which reach the same conclusion on slightly different legal bases.

Clarke C.J.’s judgement found that it is possible to put in place an “enhanced process” by which an “independent assessment” could be made, “as to whether any version of the information could be provided in a way which would not affect State interests to the extent that disclosure should not be required at all”.

Clarke C.J. also noted that such a process of advice from an independent person would also enhance confidence in any decision made.
O’Donnell J’s discusses “special advocate procedures” stating:

“During these procedures decision-makers, and sometimes courts will consider material and hear evidence which is not provided to the individual or the advocate of his or her choice, but where the individual is represented by a special advocate with security clearance who cannot, however, communicate the substance of the information disclosed to the individual or seek instructions upon it.”

There is currently no provision for such procedures in Ireland.

In his judgment O’Donnell J found that the case of Mallak v. Minister for Justice [2012] IESC 59, [2012] 3 I.R. 297, a case which strongly affirmed the “duty to give reasons” did not govern this particular case.

O Donnell J held that the issue in this particular case was:

“(i) what by way of fair procedures is required where it is said that the basis for the refusal of citizenship is contained in information which cannot be disclosed by way of reasons for the decision, and
(ii) if it is possible to justify the refusal to give reasons, what is required by way of fair procedures to constitute such justification, so that a decision which did not provide reasons, would nevertheless be valid and not liable to be quashed?”

O’ Donnell J found that if national security concerns are properly raised, it cannot be the case that merely by seeking a decision, an interested party can demand access to information, the confidentiality of which is deemed essential to national security. The judge also highlighted, however that it must be recognised that fundamental issues are involved in this case- that a person can be the subject of an adverse decision on a matter of significance to them based upon materials not disclosed to them, and where the reasons for that decision are similarly withheld from them.

The judge referred to a case of the UK courts, R. (Haralambous) v. St. Alban’s Crown Court [2018] UKSC 1, [2018] A.C. 236, in that case, the restrictions on providing the gist of material occurred after there had been a limited closed materials procedure in which the information concerned was subject to some scrutiny independent of the state.

We welcome the Supreme Court’s determination in this case and hope that an “enhanced process” or “special advocate procedure” is introduced by the Minister as soon as possible. An application for citizenship is a hugely important matter for an applicant, who has made their home in Ireland. A fair and balanced system with an element of independence is to be welcomed and will assist both the applicant and the Minister to deal with these particular matters.

The full judgement of O’Donnell J. can be read here and the full judgement of Clarke C.J. can be read here.

RECENT DEVELOPMENTS ON CITIZENSHIP FOR CHILDREN BORN IN IRELAND

Until 2004, citizenship in Ireland was acquired purely by being born in Ireland, or “jus soli”. In 2004 a referendum was held an passed which meant that citizenship could only acquired for a child born in Ireland if one or more if their parents was a citizen of Ireland or had lawful residence for a certain period, otherwise known as “jus sanguinis”. This referendum came in the wake of the case L.O. v Minister for Justice, in which it was held that the Minister for Justice had the power to deport the parents of Irish citizen children where there are “grave and substantial reasons associated with the common good to do so”.

Recent high profile cases of children who have been born in Ireland, or who have lived most of their lives in Ireland, being issued with deportation orders have raised new concerns over the result of the 2004 referendum. The case of Eric Zhi Ying Mei Xue gave rise to massive outcry within both his community and around the country- Eric had been born in Ireland to a Chinese national mother, and a deportation order was issued proposing to return him to a country where he had never lived. Similarly, in the case of P.O. v Minister for Justice, a deportation was issued against a nine year old boy who had been born in Ireland, who tragically passed away as a result of sickle cell anaemia during the appeal of his case to the Supreme Court.

These cases likely represent a small fraction of the children born in Ireland who have been issued with deportation orders since the 2004 amendment and subsequent legislation. Department of Justice figures show that since 2013 approximately 134 children under the age of 18 have been deported from Ireland. At present within the department there are 285 minors who have live deportation orders against them.  From these figures it is unclear how many of these children were born in Ireland, or who have spent most of their lives in Ireland.

As a result of cases like the boy in PO and Eric Zhi Ying Mei, there has been considerable public disagreement with the current regime. A recent Irish Times opinion poll has indicated that up to 71% of respondents to their survey are in favour of birth right citizenship. This is a stark change from the referendum result in 2004, in which 79% of voters agreed with the removal of birth right citizenship. Campaigns for the removal of the amendment or the introduction of amending legislation have been proposed, with the Labour party putting forward a bill which proposed to provide citizenship rights to children of non-national parents if they are born in Ireland and have lived in the State for more than three years. The bill was decried as “bad law” by the Minister for Justice Charlie Flanagan, but it appears that this bill is reflective of a changed view by the Irish public in birth right citizenship. The bill was rejected by government, but with the shifting public opinion it remains to be seen if the government will consider any legislative changes of their own.

REGISTRATION WITH THE IRISH NATURALISATION AND IMMIGRATION SERVICE

If you are not an-EU/EEA and non-Swiss citizen and you wish to stay in Ireland for a period longer than 90 days you must apply for immigration permission and if successful register. For those who do not know there are a variety of categories under which immigration permission can be requested. The most common of which being to study, to work or to live with your spouse, partner, child or family member.