Mallak v Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:Supreme Court
Citation/s:[2012] IESC 59
Nature of Proceedings:Appeal
Judgment Date/s:06 Dec 2012
Judge:Supreme Court (Fennelly J gave judgment for the Court) (Denham CJ, Murray J, O’Donnell J, McKechnie J)
Category:Citizenship, Naturalisation
Keywords:Charter of Fundamental Rights of the European Union, Citizenship, Citizenship (Acquisition of), Geneva Convention & Protocol, Naturalisation, Non-national, Refugee, Refugee (Convention)
URL:https://www.courts.ie/acc/alfresco/01c05728-fb80-47dc-a324-7b100387151a/2012_IESC_59_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts

The appellant was a citizen of Syria. He and his wife were recognised as refugees in Ireland in 2002 and he subsequently applied for a certificate of naturalisation pursuant to Section 15 of the Irish Nationality and Citizenship Act 1956 (as amended). This application was refused by the Minister in November 2008 acting in his absolute discretion. He did not provide any reasons for his decision. However, the appellant’s wife was granted a certificate of naturalisation in October 2008. The Minister stated in his decision that there was no appeal from his decision but that the appellant could reapply for the grant of a certificate of naturalisation in the future, which would be considered having regard to all statutory and administrative conditions applicable at that time.

The appellant’s solicitor sought a statement of reasons for the refusal pursuant to Section 18 of the Freedom of Information Acts 1996 and 2003. This section imposes a general obligation on every head of a public body, to provide a written statement of reasons for its actions, where sought by any person affected those actions. This was declined in accordance with Section 18(2) of the Act. The Information Commissioner stated that he was satisfied that the Minister’s decision to refuse to provide reasons was correct and was in line with Section 18(2). It was acknowledged that the appellant was left none the wiser as to why his naturalisation application and subsequent request for reasons were refused. In parallel, the appellant sought information under the Data Protection Acts 1988 and 2003 and the Department provided a schedule of records which included a ‘Garda report’ and a ‘Garda Request Form’. The appellant maintained that these had never previously been disclosed to him and he had never had an opportunity to meet any adverse findings contained in them.

The appellant argued that the Minister’s decision was unlawful because of his refusal to give reasons for it. The failure to give reasons also hindered him in any future applications for naturalisation he might make. Section 15 should be interpreted as obliging the Minister to give reasons.   He also claimed that insofar as Section 15 of the 1956 Act provided that the Minister may refuse to grant a certificate of naturalisation in his absolute discretion i.e. without giving reasons, and in ousting the jurisdiction of the courts to review Ministerial decisions, the section was unconstitutional. He further claimed that the section infringed Article 41(2), paragraph 3 of the EU Charter of Fundamental Rights insofar as it had the effect of conferring power on the Minister to deprive the appellant of citizenship of the EU without any obligation to give reasons.

Reasoning

Fennelly J. gave the judgment of a unanimous (five judge) Supreme Court. The Court first addressed two points, which were relied upon by the Minister and recurred in High Court judgments, as grounds for dispensing with the need to give reasons.

First, it did not necessarily follow that where a decision is in the absolute discretion of the decision maker, no reason need be given for it. The Supreme Court pointed out that there is a difference between having a reason and disclosing it. It considered that it cannot be correct to say that the ‘absolute discretion’ conferred on the Minister necessarily implied that he is not obliged to have a reason. That would be the very definition of an arbitrary power and the rule of law required all decision makers to act fairly and rationally, meaning that they must not make decisions without reasons. Once it is accepted that there must be a reason for a decision, the characterisation of the Minister’s discretion as absolute provides no justification for the suggestion that he is dispensed from observance of the requirements of the rules of natural and constitutional justice (fair procedures) as otherwise apply.

Secondly, it was said that there was no obligation to give reasons, because the grant of a certificate of naturalisation is matter of benefit or privilege rather than of right.  The Supreme Court found that the grant or refusal of a certificate of naturalisation is, at least in one sense, a matter of privilege rather than of right. However, it would be contrary to the notion of a state founded on the rule of law if all persons within the jurisdiction, including non-nationals, did not in principle have a constitutionally protected right of access to the courts to enforce their legal rights. The mere fact that a person in the position of the appellant was seeking access to a privilege did not affect the extent of his right to have his application considered in accordance with law or apply to the courts for redress.

The 1956 Act established a legal procedure permitting non-nationals to apply for certificates of naturalisation, and as a refugee, the appellant enjoyed a number of specific legal rights by virtue of Section 3 of the Refugee Act 1996, including to travel to and from the State, of access to the courts in the same manner as an Irish citizen, and to apply for a certificate of naturalisation. Article 34 of the Geneva Convention appeared to encourage contracting states to grant naturalisation to those to whom they have granted refugee status.

In previous cases before the High Court concerning cases based on a failure to meet one of the statutory conditions in section 15, the courts did not generally regard the fact that an applicant was applying for the privilege of Irish citizenship meant that he enjoyed inferior legal protection.  Fennelly J. considered that no distinction could be drawn for the purpose of the duty to give reasons between compliance with a statutory condition and the exercise by the Minister of his broader and more general discretion (his ‘absolute’ discretion).

The Minister’s letter to the appellant stated that it was open to him to reapply for the grant of a certificate of naturalisation at any time. This might reasonably be read to imply that the Minister’s reason was not of such importance or permanent character that it would deny the applicant from making a successful application in the future. But it was impossible for the appellant to address the Minister’s concerns and to make an effective application when he was in complete ignorance of the Minister’s concerns. More fundamentally, it was not possible for the appellant, without knowing the Minister’s reason for refusal, to ascertain whether he has a ground for applying for judicial review and, by extension, it was not possible for the courts to effectively exercise their power of judicial review.

Several converging legal sources strongly suggested an emerging common view that persons affected by administrative decisions have a right to know the reasons on which they are based including Section 18 of the Freedom of Information Act 1997, Article 296 of the Treaty on the Functioning of the European Union (TFEU) and Article 41 of the EU Charter of Fundamental Rights, which provides that every person shall benefit from the right to good administration including the obligation of the administration to give reasons for its decisions. The Court also referred to recent jurisprudence of the European Court of Justice, as well as the decision of the English Court of Appeal in R v Secretary of State, ex parte Fayed, where the Secretary of State refused an application for naturalisation as a British citizen, and declined to give reasons. There was no suggestion in Fayed that the applicants were deserving of any diminished standard of review because they were seeking the privilege of UK citizenship and the court also noted the unfairness to fail to inform the applicants of the Secretary of State’s areas of concern.

The Supreme Court considered that at the very least the decision maker must be able to justify the refusal to give reasons. The Minister submitted that there were issues of public policy that leaned against the giving of reasons, but no reasons related to the public interest were disclosed. The Court noted that the Minister had not exercised his power under Section 17(2) of the Refugee Act 1996 to restrict the rights otherwise enjoyed by the appellant (as a refugee), if it was necessary to do so in the interests of national security or public policy (‘ordre public’). The Court said that it could only be concluded that none of those grounds existed in the appellant’s case.

Decision

The Court held that the Minister was under a duty to provide the appellant with the reasons for his decision to refuse his application for naturalisation. His failure to do so deprived the appellant of any meaningful opportunity either to make a new application for naturalisation or to challenge the decision on substantive grounds. If reasons had been provided it might have been possible for the appellant to make relevant representations when making a new application. That might have rendered the decision fair and made it inappropriate to quash it. In the absence of reasons the Court quashed the decision.

The Court held that, in light of that finding, it was not necessary to address the constitutionality of section 15, or of the argument in relation to Article 41 of the EU Charter of Fundamental Rights.

Principles:

It does not necessarily follow that where a decision is in the absolute discretion of the decision maker, no reason need be given for it. There is a difference between having a reason and disclosing it. It cannot be correct to say that the ‘absolute discretion’ conferred on the Minister necessarily implied that he is not obliged to have a reason. That would be the very definition of an arbitrary power and the rule of law required all decision makers to act fairly and rationally, meaning that they must not make decisions without reasons.

While the grant or refusal of a certificate of naturalisation is, at least in one sense, a matter of privilege rather than of right, the mere fact that a person is seeking access to a privilege does not affect the extent of his right to have his application considered in accordance with law or apply to the courts for redress. It would be contrary to the notion of a state founded on the rule of law if all persons within the jurisdiction, including non-nationals, did not in principle have a constitutionally protected right of access to the courts to enforce their legal rights.

It is impossible for an applicant to address the Minister’s concerns and to make an effective application when he is in complete ignorance of the Minister’s concerns. More fundamentally, it is not possible for an applicant, without knowing the Minister’s reason for refusal, to ascertain whether he has a ground for applying for judicial review and, by extension, it would not possible for the courts to effectively exercise their power of judicial review.

Several converging legal sources strongly suggested an emerging common view that persons affected by administrative decisions have a right to know the reasons on which they are based including Section 18 of the Freedom of Information Act 1997, Article 296 of the Treaty on the Functioning of the European Union (TFEU) and Article 41 of the EU Charter of Fundamental Rights, which provides that every person shall benefit from the right to good administration including the obligation of the administration to give reasons for its decisions,  as well as relevant jurisprudence. 

The Supreme Court considered that at the very least the decision maker must be able to justify the refusal to give reasons.

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