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 … Read More
Mallak v Minister for Justice, Equality and Law Reform
| 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 |
| 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. |