Minister entitled to refuse naturalisation on grounds of drink driving, despite indicating that application was successful

The High Court has found that the Minister for Justice, Equality and Law Reform was entitled to refuse naturalisation to an applicant, despite informing him that his application was successful, as the applicant had not yet satisfied all the necessary criteria, and new information came to light with regards to the applicant’s criminal record.

The applicant, Senad Hodzic, had been resident since 1998, and in 2004 applied for a certificate of naturalisation under section 15 of the Irish Nationality and Citizenship Act 1956.

On 17th February 2009 his solicitor was informed that the application had been approved, and that a formal certificate would be issued in due course.

On 7th May 2009, the applicant made a declaration of fidelity to the nation and loyalty to the State, as required by the legislation.

However, on the 11th May, he was informed that the Minister had decided not to grant the certificate of naturalisation, following a submission which brought to the Minister’s attention the fact that the applicant had come to the Garda’s adverse attention on four separate occasions since the initial report had been made.

Due to a conviction of drunk driving, the Department of Justice had advised the Minister to refuse naturalisation.

The applicant sought review of this decision, arguing that the purported exercise of discretion was ultra vires in that it was based on an error of law. It was said that the correct interpretation of s. 15 of the Act of 1956 was that the discretion referred to could be exercised only once.

The applicant also argued that the decision was unreasonable, as it had been made about someone who had already been told that a decision had been made.

In addition, the applicant said that the communication of the decision of the 20th January to grant a certificate created a legitimate expectation on the part of the applicant that if he made the appropriate declaration he would in fact receive a certificate.

The High Court noted that this was an area where the statute and the general understanding of procedure varied.

While there appeared to be a general belief that declarations of fidelity are made once the certificate is already guaranteed, in fact the statute names the declaration as one of the conditions in order for a certificate to be granted.

That being so arguments based on a suggestion that a discretion, which could only be exercised once, had been exercised or purportedly exercised twice are misplaced. The discretion was exercised only once when the certificate was refused.

In considering whether the decision was unreasonable, the Court noted that “this is an area where the Minister enjoys an absolute discretion so that the scope for impugning a decision as unreasonable is very restricted.”

As noted in Hasan Abedali Jiad v. The Minister for Justice, Equality and Law Reform, I.R. 353 and Abrahamson v. The Law Society of Ireland  1 I.R. 403 as well as more recent statements of the law such as Lett & Company Limited v. Wexford Borough Corporation and Others  lEHC 195, (Unreported, High Court, Clarke J.,23rd May, 2007) andAtlantic Marine Supplies Limited and Sean Rogers v. Minister for Transport, Ireland and the Attorney General  IEHC 104, (Unreported, High Court, Clarke J., 26th March, 2010).

The Court noted that this was a case where the applicant was seeking to hold the Minister to a position adopted on the basis of incomplete information and seeking to compel the Minister to make a decision other than the one that would appear appropriate to him in the light of the most complete information by reference to an earlier indication that was given.

The Court found that while the applicant may have taken the letter notifying him of the positive outcome at face value, the Minister was not legally empowered to make that decision at that time.

By the time the applicant made his declaration, and thereby qualified himself on that ground to receive a certificate, additional information had come to the attention of the Minister and he had decided not to grant a certificate.

The Court found that: “There has never been a moment in time when the applicant fulfilled all the criteria, so that the Minister could or should have issued a certificate. In January, 2009 the applicant had not made his declaration and so was not eligible to receive a certificate and by April, 2009, when he had fulfilled the requirement in relation to the declaration, it had emerged that his background and character were not such that the Minister in his discretion wished to grant a certificate.”

The Court therefore dismissed the application.

  • by Rachel Killean for Irish Legal News