Facts:
The applicant applied to the Minister for Justice for a certificate of naturalisation and his application was refused, no reasons being provided. He was granted leave by the High Court to apply for judicial review of the refusal on the basis that the refusal to disclose reasons was unlawful.
The court noted that, following the decision of the Supreme Court in Mallak v. Minister for Justice [2012] IESC 59, the Minister accepted that he was required to give a reason or to provide a justification for not giving the reason(s) for the refusal of the application. The Minister claimed that, in line with his new policy, he had informed the applicant that he had decided not to disclose the reason for the decision having considered his obligations under the provisions contained in an extract from the Freedom of Information Act 1997, which had been attached to the refusal letter. He claimed that to give any more specific justification would, in his view, conflict with the interests of the State.
The court noted that the first notification given to the applicant that the Minister had relied upon confidential information, on the basis of which he formulated a reason or reasons to refuse a certificate of naturalisation, was to be found in the affidavit evidence sworn on behalf of the Minister. The affidavit evidence also gave notice of the existence of documents containing that information and over which the Minister claimed privilege.
The applicant challenged the claim of privilege and obtained inspection of some of the three documents disclosed by the Minister in AP v Minister for Justice and Equality (No. 1) [2014] IEHC 17.
The court noted that the first document stated:-
“I would not recommend this applicant for a certificate of naturalisation as I am not satisfied that the applicant meets the condition of good character in s. 15 of the Act, as above.
I would not recommend that the Minister, in his absolute discretion, waives the condition for naturalisation under s. 16 of the Act, as above, and grant the application for a certificate of (naturalisation).
I would not recommend that the Minister disclose to this applicant the reason for his decision not to grant a certificate of naturalisation, having considered his obligations under the Freedom of Information Act 1997, as amended, with particular reference to ss. 18, 24, 25, and 26 of that Act.”
The redacted version of the second document stated:
“The Gardaí state that they have some concerns in relation to the application from A.P.
I am of the view that this individual is of concern to the Gardaí, we should not naturalise her(sic) on the basis that the Minister cannot be satisfied that she(sic) meets the good “character” requirement of the Irish Nationality and Citizenship Act 1956, as amended.
If the individual concerned applies again for naturalisation, similar checks will be carried out and a recommendation made on the basis of the information available at that time.
The Minister will be aware that, as a result of a decision by the Information Commissioner in May 2003, the Department is obliged to give reasons for a decision on an application for naturalisation, if these are sought under s. 18 of the Freedom of Information Act 1997. The Minister will also be aware that notwithstanding the Information Commissioners decision, we are releasing reasons for such decisions at the time we inform the applicant of the decision.
In this particular case, it is intended not to release the reason for the decision. If such reasons are sought under the Freedom of Information Act 1997, we will consider the request under s. 24(3) of that Act and will not disclose the existence of this page, and the Garda report on which it is based, on the basis that to do so will adversely affect the ‘security of the State’”.
The court quashed the refusal of the application for naturalisation.
Reasoning:
Having considered the decision of the Supreme Court in Mallak, the court held that it was open to the Minister to state clearly that there were reasons related to the public interest which justified the withholding of reasons in this case. It noted that the Minister contended that the refusal letter clearly stated that he had decided not to disclose the reasons for his decision to the applicant having considered his obligations under the Freedom of Information Act 1997, with particular reference to ss. 18, 24, 25 and 26 thereof.
The court observed, however, that the letter had not stated which of the several obligations outlined in the sections were considered to be relevant to the decision. It held that their invocation and their enclosure with the refusal letter did not assist in understanding the decision-making process or the reasons for the decision. The reader was left to deduce which reasons were withheld from disclosure, and upon what basis. It noted that it might, or might not be the security of the State, the defence of the State, the international relations of the State, matters relating to Northern Ireland, records containing information conveyed to the Minister in confidence on the basis that it would be treated by him as confidential, information the disclosure of which would be likely to prejudice the giving to the Minister of further similar information from the same person, and/or that the disclosure of the information concerned would constitute a breach of a duty of confidence provided for by an agreement of some kind.
The court pointed out that the essential starting point for the consideration of judicial review was an understanding of the reason for the decision, and that the Minister had failed to give one. It held that, having regard to the existence of the reason as disclosed in the first document, the understanding of which was assisted to a limited degree by the second document, the Minister was clearly in a position to furnish a reason for the refusal of the certificate, namely the failure on the part of the applicant to fulfil the “good character” condition set out in 15(1)(b) of the Irish Nationality and Citizenship Act 1956.
It observed that it was clear from the affidavit evidence on the part of the Minister that he had no difficulty in highlighting the applicant’s character as the matter which was under consideration when describing the rigorous checks as to character and conduct carried out by him and on his behalf. It was clearly implied in the affidavit that the rigorous checks as to character and conduct resulted in the secret recommendation formulated for the Minister and ultimately disclosed in the first document. The court was therefore satisfied that there was nothing to inhibit the Minister from giving notice of his reason or his concern about the “good character” of the applicant. The difficulty for the Minister was that he did not wish to disclose the information upon which that recommendation or conclusion was based. The court held that, in those circumstances, he was obliged having regard to paragraph 79 of the Mallak decision to provide a justification for not doing so. Any challenge to the conclusion reached in respect of “good character” or any justification proffered for refusing to give reasons for that justification could then be the subject of challenge, if that was considered appropriate.
The court held that that was without prejudice to the entitlement of the Minister to rely upon any appropriate privilege. However, it held that the utmost transparency was required in such cases and that the Minister should have informed the applicant that the reason for the refusal of the certificate was that he had failed to fulfil the condition of “good character” under s. 15(1)(b) of the Act of 1956 and, if it was considered appropriate to refuse to give any further reasons, to furnish a justification in that regard based on the fact that the recommendation was made on the basis of information which was properly the subject of privilege. The court held that a cryptic general reference to provisions of the Freedom of Information Act 1997 was, in the instant case, insufficient.
Adopting such a procedure would enable the applicant to be furnished with some understanding at the earliest possible opportunity of the reason for the refusal and/or the justification, if any, for the withholding of the basis for it. The court was critical of the fact that the reason for the refusal of the certificate and/or the reasons for refusing to disclose the underlying basis for that decision were revealed for the first time after the initiation of judicial review proceedings.
Decision:
In the circumstances, the court quashed the decision of the Minister refusing to grant a certificate of naturalisation to the applicant.
