Irish Supreme Court restricts discretion in refusals of naturalisation

By Alan Desmond, PhD student at the Faculty of Law, University College Cork, Ireland.

In a report on citizenship acquisition in Ireland issued last year, the Immigrant Council of Ireland highlighted a number of issues which make the process of applying for Irish citizenship unduly difficult for migrants. One of these issues, the Minister for Justice’s freedom not to provide reasons for refusing applications for naturalisation, has been dealt a death blow by a Supreme Court decision delivered on Thursday, 6 December.

In Mallak v. The Minister for Justice, Equality and Law Reform the applicant was a Syrian national who, along with his wife, successfully applied for asylum after arrival in Ireland in 2002.
Mr. Mallak and his wife subsequently applied for Irish citizenship. While his wife’s application was approved, Mr. Mallak was informed that the Minister had decided not to grant him a certificate of naturalisation and that

In reaching this decision, the Minister has exercised his absolute discretion, as provided for by the Irish Nationality and Citizenship Acts 1956 and 1986 as amended. There is no appeals process provided under this legislation. However, you should be aware that you may reapply for the grant of a certificate of naturalisation at any time.

Mr. Mallak was granted leave to apply for judicial review of the Minister’s decision on the grounds that he did not know the reasons for denying him a certificate of naturalisation and that the failure to provide such reasons hindered any future applications he might make for naturalisation.

The Legislation

The Irish Nationality and Citizenship Act 1956 has been amended numerous times. It provides that the conditions for naturalisation include a requirement of good character and a minimum of five years residence in the State during the 9 years prior to application for naturalisation. The Act provides that if the Minister is satisfied that the conditions for naturalisation have been met, he may “in his absolute discretion” grant a certificate of naturalisation.

The High Court

John Cooke in the High Court found that the Minister was not obliged to furnish reasons for his decision refusing Mr. Mallak an award of Irish citizenship. This was because, firstly, the legislation provided that it was within the Minster’s “absolute discretion” to grant or refuse a certificate of naturalisation and, secondly, the Minister’s decision left the applicant in no worse a position than he had been before the decision was made.

In a separate High Court case in 2010, Abuissa v Minister for Justice, Equality and Law Reform, Maureen Clark had also held that the Minister’s discretion in considering applications for naturalisation was absolute and that there was no obligation on him to provide reasons in the event of a refusal.

The Supreme Court

Following an appeal against the High Court finding, Nial Fennelly delivered judgment for the five-judge Supreme Court on Thursday. On the basis of a wide array of sources such as Irish legislation, Article 296 TFEU, Article 41 of the Charter of Fundamental Rights and the case-law of the Irish and UK courts, he held that there was an emerging commonly held view that persons affected by administrative decisions have a right to know the reasons on which such decisions are based and that “at this point, it must be unusual for a decision maker to be permitted to refuse to give reasons.”

The Supreme Court found, firstly, that the Minister’s failure to provide reasons for refusing Mr. Mallak’s application for naturalisation prevented Mr. Mallak from challenging the decision on substantive grounds and from making an effective second application, as he would not be in a position to address whatever concerns the Minister may have about him. Secondly, the failure to provide reasons also prevents the courts from effectively exercising their power of judicial review.

Noting that the underlying objective of the attainment of fairness requires decision makers to give reasons for their decisions, Nial Fennelly granted an order of certiorari quashing the Minister’s decision. The Minister will now have to consider Mr. Mallak’s application afresh and, in the event of refusal, provide reasons or justify his refusal to provide reasons.

Refugees and Citizenship

The applicant in his appeal drew attention to the fact that Article 34 of the Geneva Convention provides that Contracting States shall as far as possible facilitate the assimilation and naturalisation of refugees. The importance attached to the naturalisation of refugees is similarly underscored by the fact that the Irish Nationality and Citizenship Act 1956 provides that in certain cases, including the case of refugees, the Minister may award citizenship even if the statutory conditions for naturalisation have not been met.

A Question of EU Law?

The applicant had also contended that the provisions of the Irish Nationality and Citizenship Act 1956 allowed the Minister to prevent access to EU citizenship without stating any reasons, thereby infringing Article 41(2)(c) of the Charter of Fundamental Rights which codifies the right to good administration and the administrative obligation to provide reasons for decisions made.

The right to award citizenship is, of course, within the competence of each Member State. It is clear, however, from the Rottmann case that the loss of EU citizenship, by virtue of its nature and consequences, brings the denaturalisation decision of a Member State within the scope of EU law. Less clear is whether the application of EU law might be triggered by a refusal on the part of a Member State to award citizenship to a non-EU national.

John Cooke in the High Court had dismissed the Rottmann-based argument that as the Minister’s decision to grant or refuse Irish citizenship also determines the applicant’s access to EU citizenship, the Minister is required to comply with general principles of EU law when exercising his discretion.

The Supreme Court noted that the Charter would only apply if the State, in deciding on Mr. Mallak’s application, was “implementing Union law”. In light of the order quashing the Minister’s decision, it held that it did not need to decide whether or not in this situation the State was engaged in implementation of EU law.

Thus the question as to whether refusal of an application for naturalisation might constitute implementation of EU law, thereby triggering application of EU law princples, remains to be answered.

Conclusion

The Supreme Court judgment in Mallak represents a victory for all current and prospective applicants for Irish citizenship. It will have repercussions for administrative decisions beyond the field of citizenship and immigration but serves to highlight, in particular, the lack of transparency which blights much of the Irish immigration system. It is of course by no means certain that Mr. Mallak will now be granted a certificate of naturalisation, but if again refused he will at least be in a position to challenge the refusal on substantive grounds or make a more effective renewed application for naturalisation.