High Court quashes citizenship refusal due to factually unsustainable reasons regarding UK asylum and unring-fencable errors.

[2017] IEHC 41

THE HIGH COURT

JUDICIAL REVIEW

[2016 No. 96 J.R.]

BETWEEN

S.H.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

JUDGMENT of Ms. Justice O’Regan delivered on the 30th day of January, 2017

Issues

1. The applicant is challenging the decision of the respondent dated 27th November, 2015 refusing the applicant’s application for Irish

Citizenship.

2. The grounds upon which the relief is based are as follows:—

(a) the rationale or reasoning of the respondent is not sufficiently clear;

(b) the respondent did not assess the severity of the misrepresentations identified by the respondent and made by the

applicant;

(c) the decision was based upon a clearly unfounded asylum claim in the UK however there was insufficient evidence to

support such a fact;

(d) the applicant had a legitimate expectation that his application for citizenship would be acceded to based upon the

fact that he had previously received residence permissions;

(e) the decision is based upon errors of fact and law;

(f) the respondent in the decision effectively replaced or altered findings of either ORAC or the RAT.

Background

3. The applicant is a Nigerian National born in 1972. He arrived in the State in 2002 and applied for asylum in November, 2002 which

was refused by ORAC on 24th June, 2003. This refusal was appealed to the RAT which was heard on 15th October, 2003. The appeal

was refused by the RAT in the decision of 22nd October, 2003.

4. Following the decision of the RAT aforesaid the applicant was furnished with an intention to deport letter from the respondent and

as a consequence made representation to the respondent under s. 3 of the Immigration Act, 1999 seeking permission to reside within

the State. This application was made on 21st January, 2004 and identifies the 5th October, 2002 as the date on which the applicant

arrived in the State. In his application for Citizenship the Applicant states he arrived in the State on 20th September, 2002 and in a

letter dated 24 April, 2015 he states he arrived in the State on 30th October, 2002. The representation included an assertion that he

was living with his wife and that because he now had a wife he would like to stay with her as she was finishing studying in 2008. The

applicant also indicated that he did not wish to return to Algeria as he was suspected of being a criminal without any factual or

evidential basis.

5. The applicant was ultimately afforded permission to reside in the State on 19th March, 2009.

Application for citizenship

6. The applicant submitted his application in May, 2014 on the basis of documentation dated 10th March, 2014.

7. Following this application correspondence was entertained between the parties. In this regard the respondent raised certain queries

in a letter dated 21st November, 2014 which the applicant responded to in letter dated 26th November, 2014. Further queries were

raised in a letter dated10th March, 2015 and responded to by the applicant on 13th March, 2015. The final queries were raised by the

respondent in a letter dated 22nd April, 2015 and responded to by the applicant on 24th April, 2015.

8. In the letter dated 21st November, 2014 the respondent was seeking confirmation that the adverse immigration history with the UK

related to the applicant. The response of the applicant on the 26th November, 2014 was to the effect that, yes, this adverse

application referred to the applicant but he was unaware as to the confusion as to his name. Subsequent clarification was sought as

to the applicant’s marital status and in a communication dated the 24th April, 2015 the applicant confirmed that he had never been

married and he then was single. Further clarification was also sought of the applicant however not apparently germane to the ultimate

decision.

9. In fact, it appears that the UK authorities furnished contradictory information as to the applicant, namely in a fax communicated on

29th April, 2003. It was indicated that the applicant had previously made an application in England although with a different surname

and date of birth. The file was not then available. Further information from the UK authorities disclosed that there was an asylum

refusal in respect of the instant applicant with the correct name and date of birth in England on 27th April, 2001.

The decision of the 27th November, 2015

10. By letter dated 27th November, 2015 the respondent advised the applicant that the Minister having considered the application

has decided not to grant the applicant a certificate of naturalisation. It was indicated in this letter that the reasons for the refusal

were given in the attached submission.

11. The attached submission includes the following recommendation:—

“The applicant made a clearly unfounded application for asylum both in the State and in the U.K. and has been untruthful,

which goes to his character. I am not satisfied that the applicant is of good character and I would not recommend the

Minister to grant a certificate of naturalisation in this case.”

12. Prior to the recommendation the following issues were raised, namely:—

(a) The applicant had already applied for asylum in the UK on the 14th June, 2000 under a different name and date of birth.

(b) The applicant stated in his asylum application that he arrived in the State from Algeria on 30th October, 2002, however,

elsewhere he has stated that he moved to Ireland directly from the UK with his then girlfriend and claimed asylum.

(c) He has given his marital status as single on his application for a certificate of naturalisation whereas he indicated during his asylum

application that he was married to his former girlfriend in a declaration dated the 21st January, 2004.

13. Insofar as the matter referred at 12 (b) above is concerned this contradiction as to what country the applicant had been in prior

to arriving in Ireland is evident from a review of the applicant’s asylum application before the RAT in which he appears to have

advanced different reasons for his asylum application as well as identifying different countries he was in immediately prior to travelling

to Ireland.

Case law

14. The following case law is relied upon:—

15. In Mallak v. Minister for Justice Equality and Law Reform [2012] IESC 59 being a Supreme Court decision of 6th December, 2012

and in particular the applicant relies on paras. 46 and 47 thereof to the effect that the exercise of a discretionary power can only be

done within the boundaries of the stated objects of the Act and the Minister must act fairly and judicially in accordance with the

principals of constitutional justice and such powers do not give him an absolute or unqualified or an arbitrary power to grant or refuse

at his will. The Minister cannot take into account legally irrelevant considerations. Reasons have to be given as otherwise this would

permit the Minister to exercise the power arbitrarily or capriciously.

16. The applicant further relies on the quote from The State (Keegan) v. the Stardust Compensation Tribunal [1986] I.R. 642 as

contained in para. 63 of the judgment of Fennelly J. in Mallak to the effect that an unsuccessful applicant should be made aware in

general and broad terms of the grounds on which he or she has failed.

17. The respondent does not dispute the application of the foregoing principles to the instant application.

18. The applicant also relies on Hussain v. Minister for Justice Equality and Law Reform [2011] IEHC 171, being a judgment of Hogan

J. in the High Court of 13th April, 2011. This claim involved an application under s. 15 of 1956 Act as amended. During the course of

his judgment Hogan J. dealt with the meaning of the words “good character” and indicated that they should take their meaning

according to the relevant statutory context and general objects of the legislation. At para. 15 Hogan J. indicated that the meaning of

“good character” is to the effect that the applicant’s character and conduct must measure up to reasonable standards of civic

responsibility as gauged by reference to contemporary values and the respondent cannot demand some exalted standard of behaviour

that would be unrealistic nor can a private standard of morality be imposed that is isolated from contemporary values.

19. The respondent did not indicate any particular objection to this interpretation, however on behalf of the respondent it was

indicated that the concept of a party lacking in good character did not equate to criminality — in other words the respondent

contended for an understanding or an interpretation of good character as separate and distinct from any element of criminality.

20. The applicant also relies on the case of O.T.A. v. Minister for Justice and Equality [2016] IEHC 173 being a judgment of Faherty J.

delivered on 15th April, 2016 for the purposes of establishing that in an application under s. 15 of the 1956 Act such as the instance

case, there is an obligation on the Minister to give reasons for the relevant decision.

21. The respondent does not dispute this principle.

22. The applicant seeks to distinguish the case M.A.D. v. Minister for Justice and Equality [2015] IEHC 446 being a judgment of

Stewart J. delivered on 14th July, 2015 notwithstanding that same dealt with a claim under s. 15 of the 1956 Act. In that matter

Stewart J. referred to Hogan J.’s decision in Hussain, referred to above, to the effect that the reference to “absolute” referred to in

s. 15 does not mean that the Minister is free from the obligation of adherence to the rule of law which is the cornerstone of the Irish

legal system. Stewart J. also referred to the decision of Higgins C.J. in the Supreme Court in the State (Lynch) v. Cooney [1982] I.R.

337 to the effect that the consideration must be one “which is bona fide held and factually sustainable and not unreasonable”.

23. Notwithstanding the foregoing, at para. 37 of the judgment of Stewart J. it was held that:—

“While such a decision does certainly fall within the scope of judicial review, courts should be reluctant to intervene

where the applicant might seek to achieve precision in the form of guidelines, especially where this would result in a

fettering of the discretion conferred upon the minister by the statute.”

24. The applicant, in attempting to distinguish that case from the instance case, suggests that the leave granted and the

consideration being afforded by the Court was in respect of a very narrow issue and did not involve constitutional and natural justice.

25. I do not consider the statement of Stewart J. in para. 37 of her judgment to be other than a true reflection of the law.

26. The respondent relies on the case of A.B. v. Minister for Justice Equality and Law Reform [2009] IEHC 449 being a judgment of

Cooke J. delivered on 18th June, 2009 to the effect that, as provided for at para. 17 of the judgment, when a new application is

lodged the Minister is entitled, especially if there has been a lapse of time since the original application was made, to determine the

application on the basis of up-to-date information and new inquiries. This point is raised by the respondent in answer to the

applicant’s suggestion that it is irrational of the Minister to now consider adversely the applicant’s good character when in fact in

2009 and 2014 the Minister afforded the applicant residence within the State and that process by definition involved an assessment

of the applicant’s good character. Notwithstanding this argument made on behalf of the applicant, the applicant also acknowledges

that the Minister is entitled to change his or her mind.

Severability

27. The issue of severability of portion of the decision, if necessary, in the event of it being factually or legally incorrect or inaccurate

so that the balance of the decision might survive has not been addressed in either the statement of opposition or submissions made

by counsel on behalf of the respondent. The applicant complains that this status is most unsatisfactory and not compliant with the

Rules of Court. The respondent counters that it was the Court that raised the issue of severability — while this is true, nevertheless it

does appear to me that the issue of severability was, since the application was first made by the applicant, clearly a relevant issue

given the reference in the decision to the applicant using a different name and date of birth in his asylum application in the UK

although this statement is clearly incorrect, and ultimately, at the conclusion of submissions in fact the respondent accepted the

inaccuracy of this statement.

28. To hold with the Respondent the Court would have to assume that the Ministers decision would have been the same and the

Minister would have reached that same outcome on the remaining reasons, in the circumstances where it is not for this Court to

decide whether the decision reached by the Minister is the correct or incorrect decision nor is it for this Court to agree or disagree

with the decision based on the established facts and evidence. Rather, it is for this Court to examine the process by which the

Minister’s decision was arrived at and ask can it objectively identify the reasons the Minister relied upon in making that decision.

29. Effectively severance creates a problem in this matter. The Court cannot objectively identify the weight attached to the reasons

expressed in making the decision. Was it a culmination of them all? Was it one specific reason? Would the two remaining reasons have

been sufficient? This Court cannot objectively say.

Conclusion

30. I am satisfied that notwithstanding the absolute nature of discretion afforded to the respondent in s. 15 of the legislation

nevertheless there is an obligation on the respondent not to act arbitrarily or capriciously and to give reasons for the decision, which

reasons must be factually sustainable.

31. I am satisfied that the respondent in the decision of the 27th November, 2015 did give reasons for the decision, namely (a) the

untruthfulness of the applicant and (b) the clearly unfounded asylum application in the UK and in this State.

32. I do not accept the applicant’s proposition that for an adverse assessment of good character to be made there must be some

element of criminality involved.

33. I am satisfied that the reasons for the decision were clearly communicated to the applicant in this matter by reference in the

letter dated 27th November, 2015 to the attached submissions.

34. From the respondent’s point of view there are two difficulties with the decision, namely:—

(a) The decision clearly relies upon the fact that it is claimed that the applicant made an asylum application in the UK with a different

name and different date of birth. In fact it is clear that this was the same belief held by the respondent in 2009 when affording the

applicant a right of residence. It is now accepted by the respondent that the suggestion that the applicant made his asylum

application in the UK under a different name and date of birth is factually incorrect.

(b) The decision refers to a clearly unfounded asylum application in the UK notwithstanding that in fact the fax communication from

the UK Home Office dated 29th April, 2003 advises that the applicant file is unavailable and there is no evidence before the Court to

the effect that this file became available to the respondent since the fax dated 29th April, 2003. Accordingly, the only information

available to the respondent from the UK Home Office was to the effect that the applicant was refused asylum and lodged an appeal

which was awaiting consideration. Such a status cannot in my view amount to a clearly unfounded asylum application in the UK and

therefore I am satisfied that this assertion is factually unsustainable.

35. I am not satisfied that it is possible to effectively ring-fence the two factual inaccuracies contained in the decision so as to

enable the decision to survive. In this regard, as has been pointed out on behalf of the applicant there is no evidence before the

Court that if reference to the incorrect name and date of birth in the UK asylum application and reference to a clearly unfounded

asylum application in the UK was expunged from the decision that nevertheless the Minister would have arrived at the same

conclusion as is contained in the decision of 27th November, 2015.

36. For the reasons above I am satisfied that the decision of 27th November, 2015 should be quashed.