Friday, December 7, 2012

Duty to give reasons and the Nature of "absolute discretion" in Naturalisation Applications

The Supreme Court has quashed the Minister for Justice’s refusal to grant a Syrian lawyer a certificate of Naturalisation for Irish citizenship following the ministers failing to give reasons for his decision as he is required.

Mr. Justice Niall Fennelly noted that developing Irish jurisprudence provided persuasive evidence that it must now be “unusual” for a decision-maker to be allowed to refuse to give reasons. “Where fairness can be shown to be lacking, the law provides a remedy,” he said.

Persons affected by administrative decisions should have access to justice and the right to seek court protection to ensure the rule of law had been observed, fair procedures were applied and their rights not unfairly infringed, he said.

Syrian lawyer Ghandi Mallak and his wife came here in 2002 and both secured asylum later that year. They later applied for a certificate of Naturalisation as part of the process of seeking Irish citizenship. While his wife was granted citizenship, Mr. Malaks application was refused without explanation.

Mr. Mallak’s lawyers later sought documents under the Freedom of Information Act, including the Minister’s reasons, but were told that the minister was under no obligation to give reasons

He later appealed to the Supreme Court against the High Court’s rejection of his challenge to the Minister’s refusal to give reasons.

The applicant argued that section 15 of the 1956 Act id unconstitutional insofar as it allows the Minister to refuse to grant a certificate of Naturalisation in his absolute discretion i.e. without giving reasons. Additionally he argues that the section should be interpreted in the sense that the minister is obliged to give reasons.

Mr. Mallak also complained that the ministers decision refusing him a certificate of Naturalisation has significant consequences for a person declared a refugee as he is left effectively stateless.

The Minister argued that in cases of absolute discretion, there is no obligation to give reasons. Thus s 15 of the Act of 1956 necessarily excludes any duty to give reasons since such a duty would negate the nature of the discretion conferred.

It was highlighted that Naturalisation is granted by the minister as a matter of privilege and not a right.

Fennelly J observed that there was an emerging assumption that persons affected by administrative decisions were entitled to know the reasons for them so they could understand them and potentially appeal.

It was held that while the granting of a certificate of Naturalisation was a privilege, not a right, and the Minister had discretion in that matter, Mr. Mallak was still entitled to have his application considered in accordance with law and to apply to the courts for redress.

The extent of the Minister’s obligation to give reasons arose in the developing general principles of judicial review and by reference to the particular statutory provision, the judge said.

This judgment has widespread implications for other administrative decisions where unfairness is at issue.

Welcoming the decision, Denise Charlton, Chief Executive of the Immigrant Council of Ireland said that they:

“Continue to call on the Government to ensure that people whose applications are unsuccessful are given the reasons in writing and a right to appeal to an independent body, as well as the courts.

It is unacceptable that the protections of the Office of the Ombudsman are not extended to people using the citizenship and immigration system. This court decision has again highlighted the need for a modern, efficient and transparent immigration system which is based on justice and fairness.”

Brophy Solicitors

Irish times article:
Immigrant council statement:

1 comment:

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    Immigration Solicitors