High Court: Decision to refuse naturalisation application on good character grounds failed to properly record exculpatory factors

About this case:

• Citation:
  [2022] IEHC 624
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Mr Justice Garrett Simons held that the submissions and recommendation provided to the ultimate decision-maker did not properly record the exculpatory factors identified by the applicant, which was a breach of fair procedures. Further, it was held that the decision did not properly set out the reasons for the decision as required by Mallak v. Minister for Justice Equality and Law Reform [2012] IESC 59.

Background

The applicant was a Somali national who applied for Irish citizenship by naturalisation under the 1956 Act. Under section 15 of the Act, the Minister retained an “absolute discretion” in relation to the grant of a certificate of naturalisation if satisfied that certain criteria were fulfilled. One of the requirements for a grant of naturalisation was that the applicant was a person of “good character.”

The application was submitted in May 2017 and was accompanied by the applicant’s Somalian passport. In November 2017, the applicant’s solicitor sent an unprompted letter to the Minister setting out that the passport may not be genuine. It was outlined that the applicant had obtained the passport through unofficial channels due to the fact that there was no functioning central government in Somalia. It was said that she obtained the passport in good faith.

In May 2018, a second unprompted letter was sent which outlined that the applicant had attempted to enter Holland with their travel papers for the purpose of entering Belgium and applying for new passports at the Somali Embassy. However, they were refused entry to Holland and were returned to Ireland. 

Within three weeks, the Minister responded to this letter and outlined that a “thorough investigation” needed to be carried out regarding the presentation of a false passport. However, the passport had already been referred to the Garda Technical Bureau in June 2017 and the passport was confirmed as invalid in August 2017.

The outcome of this investigation into the passport was never put to the applicant. Following a significant period of delay and judicial review proceedings seeking a decision, the Minister confirmed in December 2021 that the application was refused.

The decision was made by a principal officer in the Minister’s department, who had received a submission and recommendation that had been prepared by an executive officer. Although the principal officer stated in an email that he had read the submission/recommendation and agreed with it, the covering email to him stated: “Another submission and supporting documents for a JR case for signing.”

The submission/recommendation was a two-page document which outlined the investigation into the false passport and recommended the refusal of the application on the grounds that the applicant was not of good character. Although the recommendation stated that the decision-maker had considered the explanation provided by the applicant, there was no discussion of these explanations.

High Court

The applicant issued judicial review proceedings on the grounds that there had been a breach of fair procedures in the case and that the Minister did not provide adequate reasons for the refusal. The court began by noting that the Minister was under a duty to provide reasons for the refusal of a naturalisation application (see Mallak).

Further, the court considered the Minister’s “absolute discretion” and held that the “information that is presented to the Minister in a Submission or recommendation must be accurately recorded, complete and seen in context and considered in full by the decision maker before reaching a determination” (M.N.N. v. Minister for Justice and Equality [2020] IECA 187 applied).

It was held that, in order for the Minister to make a decision on the good character of an applicant, the decision-maker must undertake a “comprehensive assessment” of an applicant and “must consider all aspects of character.” In this case, it was crucial that explanations or exculpatory factors provided by the applicant were carefully considered by the decision-maker.

It was held that the submission/recommendation failed to meet the standard of fair procedures because the document failed to record the explanations offered by the applicant. There was not reference to the practical difficulties asserted by the applicant or to the efforts made to obtain a passport from an official Embassy. 

Additionally, the court noted that the applicant had raised the issue of passport validity with the Minister in unprompted letters. This should have been considered by the decision-maker in assessing her character, the court said.

The omissions of an accurate record of the explanation and exculpatory factors in the submission/recommendation was fatal to the validity if the decision, the court held. Basic fairness required the Minister to highlight any information which could assist in respect of an applicant’s good character. It was not sufficient that this information could be found “somewhere in the file to which a submission is attached.”

The court noted that the Minister was not being held to “an exalted standard” of reproducing all information in a decision, but instead to the standard identified by the Court of Appeal in M.N.N.

As a result of failing to record all the appropriate information in the submission/recommendation, it followed that the ultimate decision did not contain an adequate statement of reasons. Since the ultimate decision-maker only approved or rejected recommendations as drafted for them, the recommendations constituted “the decision” on the application. Accordingly, the document had to meet the legal test for the adequacy of reasons.

Conclusion

The court granted an order quashed the decision and remitted the matter to the Minister.

A.J.A. v. The Minister for Justice and Equality [2022] IEHC 624