Tuesday, December 20, 2011

High Court Judgement in Naturalization Delay Case

Case Summary; Dana Salman v Minister for Justice and Equality, Judgement of Mr. Justice Kearns of 16.12.2011

This case saw the applicant compelling the Minister to administer a decision in his application for naturalisation. The applicant is a refugee originally from Iran. Application for naturalisation was made in early 2008 – thus a delay of three years and nine months was at issue.

This delay caused severe inconvenience to the applicant; he found he was frequently detained at immigration control when he attempted to travel outside the state and for that reason he stopped travelling. The eve prior to the substantive hearing of the proceedings the applicant was issued with a certificate of naturalisation, therefore the sole matter that was to be determined between the parties was the cost of the proceedings.

It was argued by the applicant that the respondent’s statutory duty to consider the application should not be confused with his discretion as to the outcome of the application. Citing Article 34 of the UN Convention on the Status of Refugees and Stateless Persons, 1951 the applicant accepts that there is no requirement to grant citizenship to refugees but there is an obligation to expedite the process and that this requirement has been ignored in the instant case.

Further the applicant argued that even though the Minister is given no time period by law in which to make a decision, there is nevertheless a duty to make a decision within a reasonable time. It is argued that the above delay is not a reasonable one.

Having taken into account article 9.1.2 of the Constitution, Section 15 of the Irish Nationality and Citizenship Act 1986, the United Nations Convention on the Status of Refugees and Stateless Persons, 1951 and the Protocol of 1967 Article 34 the court stated that

‘The respondent in the instant case was not granted an unfettered discretion to issue a decision on the applicant’s application at his leisure, or not to issue a decision at all. He was under a duty to exercise his statutory powers in a fair and reasonable manner.

The court cited Cooke J in the 2010 case of Nearing of 2010;

‘Once it is clear that the Department has in place a particular system for the administration of such a scheme, it is not the role of the court in exercise of its judicial function to dictate how a scheme should be managed or to prescribe staffing levels or rates of productivity in the relevant section of the department. Once it is clear from the evidence that there is in place an orderly, rational and fair system for dealing with applications, the Court has no reason to infer any illegality in the conduct of the Minister unless some specific wrong doing or default is demonstrated in a given case’. 

Having considered this in light of the present circumstances Kearns J found that in this case there was no evidence before the Court of any system in place for dealing with applications for certificates of naturalisation. In particular, the Minister did not indicated specific reasons for delay and refusing to explain the extended period of delay past the average time put forward by the department the court held that there was no evidence that there was in place a fair and rational system for the processing of applications. The court held that the applicant was therefore entitled to costs as he would have been entitled to relief if the judicial review had proceeded.

Such a decision inspires hope for the many awaiting decisions from the Minister in this regard and  is welcomed as a step forward in decreasing the waiting times. 

Brophy Solicitors

1 comment:

  1. This is such a victory to thousands of tax payers, whom adding the value to society for years and being delayed in their constitutional right!