Damache v Minister for Justice

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Damache v Minister for Justice
Respondent/Defendant:Minister for Justice
Court/s:Supreme Court
Citation/s:[2021] IESC 6
Nature of Proceedings:Judicial review/appeal
Judgment Date/s:10 Feb 2021
Judge:Dunne E
Category:Citizenship
Keywords:Citizenship, Citizenship (Loss of), Naturalisation
Country of Origin:Algeria
URL:https://www.courts.ie/acc/alfresco/e8e35474-4125-4e5e-8023-5a69ee31a436/2021_IESC_6.pdf/pdf#view=fitH

Facts: The applicant was an Algerian national who had been granted a certificate of naturalisation but subsequently pleaded guilty in the United States to a charge of materially assisting in an Islamist terrorist conspiracy. The Minister subsequently issued a proposal to revoke the applicant’s naturalisation on the basis that he had failed in his duty of loyalty and fidelity to the State. The applicant instituted judicial review proceedings challenging the procedure by which revocation of naturalisation is determined under the Irish Nationality and Citizenship Act 1956. The applicant complained inter alia that that the fact that the Minister initiated the revocation process, appointed the committee charged with conducting the inquiry and then reached the final decision was in breach of the constitutional right to fair procedures. In a judgment of 14 October 2020 ([2020] IESC 63) the Supreme Court stated that given the importance of citizenship to the status of an individual, the process by which citizenship may be lost must be robust and at the very least must observe minimum procedural standards in order to comply with the State’s human rights obligations. There was nothing to suggest that the members of the committee charged with conducting the inquiry were anything other than independent in the exercise of their function and there was no breach of natural justice on that basis. However, the Minister had made it clear that the findings of the committee were not binding on him. It was the Minister who initiated the process, whose representatives make the case for revocation before the committee and it was the who ultimately makes the decision to revoke. The Supreme Court concluded that the process as provided for in section 19 of the Irish Nationality and Citizenship Act 1956 did not provide the procedural safeguards required to meet the high standards of natural justice applicable to a person facing such severe consequences by reason of the absence of an impartial and independent decision maker. The Supreme Court subsequently heard further argument on the scope of the final orders which should be made, and in particular whether section 19 of the 1956 Act should be struck down in its entirety or only certain subsections.

Decision: The Supreme Court declared that section 19(2) and 19(3) of the Irish Nationality and Citizenship Act 1956 were invalid having regard to the Constitution. This case was about the procedural safeguards contained in section 19 of the 1956 Act before a certificate of naturalisation could be revoked. It was never suggested that a power to revoke could not be provided for, nor was it suggested that the grounds for revocation were inappropriate or suspect in any way. Section 19(2) and (3) must be struck down in their entirety as they were part of the process involved in the revocation of a certificate of naturalisation. Section 19(1) was not part of the process for revoking a certificate of naturalisation and therefore would not be struck down, but before any revocation could take place it would be necessary to introduce a new process which meets the requirements of natural justice. Given that there was a statutory scheme in place, it would be appropriate for the Oireachtas to determine the basis of any proposed scheme to replace that which has been found wanting, whether the process should be dealt with by way of statutory amendment or alternatively, by way of statute empowering the Minister to create an administrative scheme. It followed therefore that the Minister may not establish an administrative scheme to exercise the powers under the surviving parts of the section without statutory authority. Section 19(4), (5) and (6) would not be declared invalid as they did not concern the revocation procedure.

Principles:Section 19(2) and (3) of the Irish Nationality and Citizenship Act 1956 were invalid having regard to the provisions of the Constitution. Before any revocations could take place it would be necessary to introduce a new process which meets the requirements of natural justice. Given that there was a statutory scheme in place, it would be appropriate for the Oireachtas to determine the basis of any proposed scheme to replace that which has been found wanting, whether the process should be dealt with by way of statutory amendment or alternatively, by way of statute empowering the Minister to create an administrative scheme.
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