Tuesday, April 24, 2012

Naturalization Delay

We continue to receive a large number of queries from clients regarding the on going delays in the Citizenship Section. It is very appararent that many applications submitted in 2007 continue to be undetermined. Amongst our clients in this catagory are a number of doctors, and a client working in the financial services. There is no apparent reason for the delay on the facts of their cases. Our clients are frustrated, particularly as they feel they have given a lot to this State through their professional services. 

The amount of new queries recently received on this issue warants a further posting on our blog. We think that it might be helpful for those who are stuck in this waiting game to understand the caselaw coming from the superior courts, which greatly influences the Naturalization processs.

In most applications before the Minister for Justice, a processing period of 6- 12 months would be regarded as reasonable, while a period of over 18 months would be deemed to be unreasonable and in breach of the applicant's rights. However, during 2009 and 2010, a number of cases before the High Court held that the Minister was not restricted in the time period for processing Naturalization applications because the granting of Citizenship is a special privilege granted by the State, and not comparable to other applications for residency. Thus, the applicants who took the delay cases during that period were unsuccessful. (See cases such as Nawaz v Minister for Justice, 19th July 2009, Bepo v Minister for Justice, 18th June 2009, Tabi v Minister for Justice 16th April 2010, Jiad v Minister for Justice 19th May 2010 and Abuissa v Minister for Justice,1st July 2010 ).

Since then, the Citizenship Section of the Department of Justice has relied on these High Court judgments to support their position that they are permitted to allow extremely long delays in the determinations of many applications for Naturalization. Unfortunately, Immigration lawyers were hesitant to challenge the delays by way of High Court litigation because of the risks posed to their clients becuase of these same unsuccessful High Court judgements in 2009/2010.

On the 16th December 2011, Mr. Justice Kearns of the Supreme Court delivered a judgment which changed this position – the case is Dana Salman v Minister for Justice and Equality. The case involved a hearing to establish liability for costs in respect of one of the previous High Court Naturalization delay cases. The Minister’s delay in determining Mr Salman’s application for naturalization was 3 years and 9 months at the time of issuing of High Court proceedings. Mr. Justice Kearns found that there was no evidence before the Supreme Court of any system in place for dealing fairly with applications for certificates of naturalisation. In particular, the Minister did not indicate any specific reasons for the delay and refused to explain the extended period of delay past the average time put forward by the department (24 months). Mr. Justice Kearns held that the applicant was therefore entitled to costs as he would have been entitled to relief if the judicial review had proceeded. (Please see our previous blog post of December 2011to read further about this judgement).

Since the Salman judgement, a number of new Naturalization delay cases have recently been issued in the High Court, where the delay is in the region of the Salman case – 3 and ½ years. The High Court is granting permission to take a full case against the Department of Justice where there is substantial delay of this kind. It remains to be seen if one of these more recent cases will proceed to full hearing, and perhaps set a new precedent in light of the Salman case.

We will keep updating you as further developements occur.

Brophy Solicitors

1 comment:

  1. Hi Brophy Solicitors,

    First of all I like to congratulate you on maintaining such a informative blog, it brilliant and very interesting.

    So on the delay, what should be the next steps for many of those individuals, whom been paying tax for years and demand a decent service from the State!

    Salman judgement, is a welcome start but isnt enough. Is Minister obliged to take any measures or give concrete evidence.

    Or is there a provision under law, which this delay can simply be brushed under the carpet.

    Best regards