Conor Casey (European University Institute)
Introduction
Damache concerned a constitutional challenge to s.19 of the Irish Nationality and Citizenship Act 1956 (‘the 1956 Act’). This section outlined the statutory process the executive branch – acting through the Minister for Justice (‘the Minister’) – had to follow before revoking a certificate of naturalisation. There were two grounds of challenge. First, the appellant argued the revocation of citizenship was a judicial power that could only be constitutionally exercised by the judiciary and not the executive branch. Second, the appellant argued the statutory process by which citizenship is revoked was an unconstitutional breach of fair procedures. The Supreme Court rejected the appellant’s first argument, finding that the revocation of citizenship was an executive and not a judicial function. The Supreme Court proceeded to find in favour of the appellant’s second point, holding that the fact the executive both initiated the proposal to revoke and made the final decision to confirm or dismiss it, was contrary to fair procedures.
Factual Background
The appellant was born in Algeria and is an Algerian national by birth. He came to Ireland in July 2000 and unsuccessfully claimed asylum. In 2002, the appellant married an Irish citizen by birth and successfully applied for citizenship in 2006 on the basis of this marriage. In 2008, the appellant became naturalised as an Irish citizen pursuant to s.17 of the 1956 Act and subsequently made a declaration of fidelity to the State in the District Court. While resident in Ireland the appellant was involved with terrorism related activities. He was extradited to the US and convicted of terrorist offences. After being convicted he was informed by the Minister of her intention to revoke his citizenship.
Legal Background
Article 9.1.2 of the Irish Constitution provides that the “acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law.” Article 9.3 states that “fidelity to the nation and loyalty to the state are fundamental political duties of all citizens.” The 1956 Act gives concrete effect to these provisions by providing a statutory regime for the acquisition and loss of citizenship.
S.19(1)(b) provides that the Minister may revoke a certificate of naturalisation if she is satisfied inter alia, that “the person to whom it was granted has, by any overt act, shown himself to have failed in his duty of fidelity to the nation and loyalty to the State”. However, s.19(2) provides that before revocation of a certificate of naturalisation is made the Minister shall first give “notice of her intention to revoke the certificate, stating the grounds therefor and the right of that person to apply to the Minister for an inquiry as to the reasons for the revocation.” S.19(3) subsequently provides that if an application is made for an inquiry under subsection (2) the Minister “shall refer the case to a Committee of Inquiry appointed by the Minister consisting of a chairman having judicial experience and such other persons as the Minister may think fit, and the Committee shall report their findings to the Minister.”
Supreme Court’s decision
In relation to the appellant’s first point, the Supreme Court held that the revocation of citizenship was not an aspect of the judicial power constitutionally reserved to the judicial branch, but an executive power. In doing so, the Court placed emphasis on the fact this authority has long been considered an executive function in common law systems with a shared understanding of executive power rooted in British constitutional history and the royal prerogative.[1]
In relation to the second argument, the Court held that due to the drastic and severe consequences revocation of citizenship may have for a person, a very high standard of procedural safeguards must apply. The Court accepted the State’s submission that there was no reason to suggest that the Committee referred to in s.19 would be anything other than independent in considering the appellant’s submissions, and that there was no breach of fair procedures based on this basis.
However, the Court found that the process provided for by s.19 still did not provide the procedural safeguards required to meet the high standards of natural justice applicable to a person facing such severe consequences, because the Minister both initiates the proposal to revoke and makes the final decision after hearing from the independent committee, depriving the person subject to the proposal of an “impartial and independent decisionmaker”.[2]
Commentary
In many ways the Supreme Court’s judgment was theoretically banal, involving the straightforward application of well-settled and uncontroversial constitutional principles. The Supreme Court has long held that the regulation of immigration – including the entry, immigration status, removal, or the granting of citizenship – is an inherent executive power which can be exercised by the Government[3] without a statutory basis. The Oireachtas[4] may structure and regulate the exercise of this power via statute, but as the control of immigration remains an executive function it cannot be alienated from the Government and given to another body.
Similarly, much of the Court’s treatment of fair procedures is uncontentious. It is now axiomatic the executive is not free to exercise either its inherent or statutory power in an arbitrary manner which would effectively dispense with the duty to respect precepts of fair procedures. This is the case even in the context of immigration decisions implicating sensitive policy issues or national security concerns. Finding that fair procedures reach into the process of citizenship revocation is thus entirely unsurprising. Much more contentious, however, was the Court’s translation of the abstract requirement to respect fair procedures into its concrete demands in this case. One can summarize the problem with the Court’s treatment of fair procedures with one word: myopia.
Fair procedures is a highly amorphous concept, which partly explains why Courts often find its demands will vary depending on context: including the gravity of the interests or rights at play, the resource burdens it would place on an administrative decision-maker, the impact on the efficacy of the administrative policy/scheme at issue, and due respect for how the legislature has decided to balance competing institutional concerns in the statutory processes it decides to enact. But the Court in this case instead took a highly precautionary approach to the requirements of fair procedures, one focused on the risks of prejudgment while down-playing important competing contextual considerations.
One consideration given short-shrift was the availability of statutory safeguards provided by the Oireachtas in s.19(3): including the right to be notified of the reasons for a revocation and right to make submissions to an impartial committee with judicial experience who issues a recommendation to the Minister on revocation. These safeguards are also enmeshed in a web of robust administrative law principles which require any decision must be taken in good faith, factually sustainable, and be reasonable in its assessment and weighing of any evidence, the independent committee’s recommendations, and the gravity of interests at play. As an EU Member State, Irish officials are of course also bound by EU law jurisprudence. Post-Case C-135/08 Rottmann v. Freistaat Bayern and Case C221/17 Tjebbes v. Minister van Buitenlandse Zaken it is clear Member States must ensure that deprivation of national citizenship – which results in the loss of EU citizenship and its attendant rights – must be subject to a proportionality assessment. Thus any factually unsustainable or abusive uses of revocation power could be easily flagged in the recommendations of the independent Committee and open to correction via judicial review for unreasonableness or being disproportionate. The Court’s conclusion s.19’s procedural provisions were systemically unsound from the perspective of fair procedures due to a risk of bias, impartiality, and prejudgment etc. seems oddly detached from this context, and its concern at the fact the Minister was not bound by the recommendation of the Committee given undue weight.
Even more troubling is the impact of the Court’s blinkered approach to fair procedures on core separation of powers principles. Article 28 of the Constitution emphatically vests the executive power of the state in the Government, and only the Government or those acting on its authority can exercise it. As acknowledged by the Court, control of immigration policy is an executive power, which means it may not be divested to a non-executive body. But the practical impact of the Court’s decision, however, may well end up mandating this result. The Court’s articulation of the demands of fair procedures means that the Minister cannot now both initiate and confirm a revocation proposal – ensuring that at least one of these responsibilities must be vested in another actor.
Reading between the lines, it appears that the Court would have been satisfied with s.19 if the recommendations of the independent Committee were binding on the executive, so that her confirmation or dismissal of a revocation became an empty formality. In other words, the Court is effectively saying that in order to constitute a lawful exercise of this executive function, a non-executive actor must take over a substantial portion of its exercise and be responsible for either the initiation, or confirmation of, a revocation proposal. This, however, would involve stripping an acknowledged executive function away from the Government and vesting it in what looks suspiciously close to a judicial tribunal – as it would likely be judge-led and with high levels of insulation from executive direction.
This approach may well provide even more robust procedural safeguards for those at risk of citizenship revocation, than the already sizeable safeguards provided by the Oireachtas. But it does so by taking a maximally precautionary approach to protecting abstract constitutional entitlements like fair procedures while simultaneously disrespecting one of the Constitution’s core textual commitments: the vesting of executive power in the Government. Textual commitments aside, this would also involve diluting accountability for profoundly morally and politically controversial exercises of executive power, hiving them to a body not answerable to the Oireachtas or to the people. How the Government will respond to this incursion into their constitutional domain remains to be seen.
[1] Paras 72-73.
[2] Para 128.
[3] Irish executive branch.
[4] Irish legislature.
The featured picture of this blogpost is the Four Courts, the principal seat of the Supreme Court, the Court of Appeal, the High Court and the Dublin Circuit Court. The original photo can be found here.