The
Supreme Court has quashed the Minister for Justice’s refusal to grant a Syrian
lawyer a certificate of Naturalisation for Irish citizenship following the ministers
failing to give reasons for his decision as he is required.
Mr.
Justice Niall Fennelly noted that developing Irish jurisprudence provided persuasive
evidence that it must now be “unusual” for a decision-maker to be allowed to
refuse to give reasons. “Where fairness can be shown to be lacking, the law
provides a remedy,” he said.
Persons
affected by administrative decisions should have access to justice and the
right to seek court protection to ensure the rule of law had been observed,
fair procedures were applied and their rights not unfairly infringed, he said.
Syrian
lawyer Ghandi Mallak and his wife came here in 2002 and both secured asylum
later that year. They later applied for a certificate of Naturalisation as part
of the process of seeking Irish citizenship. While his wife was granted
citizenship, Mr. Malaks application was refused without explanation.
Mr.
Mallak’s lawyers later sought documents under the Freedom of Information Act,
including the Minister’s reasons, but were told that the minister was under no
obligation to give reasons
He
later appealed to the Supreme Court against the High Court’s rejection of his
challenge to the Minister’s refusal to give reasons.
The
applicant argued that section 15 of the 1956 Act id unconstitutional insofar as
it allows the Minister to refuse to grant a certificate of Naturalisation in
his absolute discretion i.e. without giving reasons. Additionally he argues
that the section should be interpreted in the sense that the minister is
obliged to give reasons.
Mr.
Mallak also complained that the ministers decision refusing him a certificate
of Naturalisation has significant consequences for a person declared a refugee
as he is left effectively stateless.
The
Minister argued that in cases of absolute discretion, there is no obligation to
give reasons. Thus s 15 of the Act of 1956 necessarily excludes any duty to
give reasons since such a duty would negate the nature of the discretion
conferred.
It
was highlighted that Naturalisation is granted by the minister as a matter of
privilege and not a right.
Fennelly
J observed that there was an emerging assumption that persons affected by
administrative decisions were entitled to know the reasons for them so they
could understand them and potentially appeal.
It
was held that while the granting of a certificate of Naturalisation was a
privilege, not a right, and the Minister had discretion in that matter, Mr.
Mallak was still entitled to have his application considered in accordance with
law and to apply to the courts for redress.
The
extent of the Minister’s obligation to give reasons arose in the developing
general principles of judicial review and by reference to the particular
statutory provision, the judge said.
This
judgment has widespread implications for other administrative decisions where
unfairness is at issue.
Welcoming
the decision, Denise Charlton, Chief Executive of the Immigrant Council of
Ireland said that they:
“Continue
to call on the Government to ensure that people whose applications are
unsuccessful are given the reasons in writing and a right to appeal to an
independent body, as well as the courts.
It
is unacceptable that the protections of the Office of the Ombudsman are not
extended to people using the citizenship and immigration system. This court
decision has again highlighted the need for a modern, efficient and transparent
immigration system which is based on justice and fairness.”
Brophy
Solicitors
7.12.12
Irish times article:
Immigrant council
statement:
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