Naturalisation refusal upheld; court finds no arbitrariness, EU law not engaged, and no ECHR breach regarding character assessment.

[2018] IEHC 758

THE HIGH COURT

2018 No. 389 JR

Between:

MIGUEL NKOLOVATA NSUNGANI

Applicant

– and –

MINISTER FOR JUSTICE AND EQUALITY

Respondent

JUDGMENT of Mr Justice Max Barrett dated 21st December, 2018.

1. Mr Nsungani’s naturalisation application has been refused by the Minister. Under s.15 of the Irish Nationality and Citizenship Act,

1956, as amended, an applicant for naturalisation must be of good character. In this regard, the Minister considered a Garda report

concerning Mr Nsungani which, per the internal departmental documentation concerning the application, “details motoring offences…

and an alleged incident where Section 12 [of the] Child Care Act was invoked”.

2. The Minister’s wide discretion regarding naturalisations is identified in, e.g., AA (Algeria) v. Minister for Justice and Equality [2016]

IEHC 416, AMA v. Minister for Justice and Equality [2016] IEHC 466 and AA v. Minister for Justice and Equality [2017] IEHC 491.

These cases show that the court is limited to reviewing whether the Minister acted arbitrarily/capriciously/autocratically in reaching

his conclusions or in the conclusions reached. The Minister has not so acted: he considered submissions made and the Garda report;

he did not consider the “alleged incident” as more than alleged; and it is clear since Tabi v. Minister for Justice, Equality and Law

Reform [2010] IEHC 109 that the Minister may consider motor offences when assessing character. As to proportionality, this Court

considers, consistent with the later AA decision, that proportionality plays a part in the Minister’s exercise of his discretion (e.g., in

distinguishing between the differing seriousness of different criminal behaviours). In any one case a want in proportionality might

conceivably impact on the issue of whether the Minister acted arbitrarily/capriciously/autocratically. Here no such want is evidenced

or presents.

3. Three points remain. Mr Nsungani claims that: (1) EU law is engaged in his naturalisation application. But Cooke J. in Mallak v.

Minister for Justice, Equality and Law Reform [2011] IEHC 306, para.24 (which aspect of his judgment did not require to be

addressed, and was not reversed, on appeal) indicates that acquisition of national citizenship is a sovereign matter for Member

States, so EU law is not engaged; (2) his submissions of 06.11.2017 were not considered. But a senior department official has averred

that they were considered and that following consideration his view was that the recommendation to refuse should stay as was,

which averments have not been controverted; (3) the naturalisation process breached Art.6 and/or 8 ECHR. This line of argument was

not greatly developed in submission; however, the court sees no such breach to present.

4. Mr Nsungani has sought an order of certiorari as well as certain declarations and other reliefs. For the above reasons, all the reliefs

sought by him are respectfully refused.