NATURALIZATION POST MALLAK – WHAT IS REASONABLE JUSTIFICATION?

After the Supreme Court’s judgement in the case of Mallak v The Minister for Justice and Equality (see blog postdated 7th December 2012),  the question continues to arise when can the Minister legally deny  an applicant for Naturalization the grounds upon which his/her application has been refused. 

On the 13^th December 2012, Minster for Justice, Equity Alan Shatter was asked by was of Parliamentary question what measures the Minister would take to ensure transparency and fairness in light of the Mallak judgement. Further, he was asked whether a review mechanism would be put in place for cases similar to Mallak’s- for persons who had been refused citizenship without being giving a reason. Minister Shatter responded as follows;

“The implications of the judgement of the Supreme Court referred to by the Deputies are being considered in consultation with the Office of the Attorney General and any revised procedures arising will be implemented without delay. The Deputies should note that although the Supreme Court in its judgement quashed the Minister's decision to refuse the application in this particular case, it went on to say that it is not for the Court to prescribe whether the Minister will give notice of his concerns to the applicant or to disclose information on which they may be based or whether the Minister will continue to refuse to disclose reasons for the refusal but to provide justification for so doing. In the particular case it is open to the applicant to lodge a new application.”

If the Minister is going to continue refusing to disclose reasons in justified circumstances, the question of course arises, what constitutes an adequate or reasonable justification for doing so? For example,  would it be reasonable for the Minister to indicate that he is refusing to provide the specific grounds for refusal because this would have adverse consequence for matters of State security?

A recent case of Brophy Solicitors highlights some of the problems. Our client has been refused Naturalization on a number of occasions, each time without reason,  despite the fact that our client  appears to fulfil all of the necessary requirements for naturalization in Section 15(1) of the Nationality and Citizenship Act 1956.  He is currently awaiting the determination of his fourth application. In light of Mallak, we wrote to thee Minister requesting that the grounds for the previous refusals be provided to our client so that they can be addressed prior to the determination of his current application. The Minister’s response was that it is a matter for the Minister to determine what procedures would be applied in the Naturalization process in accordance with the Mallak judgement. Thus, in respect of this case, the Minister refused to provide the reasons for the previous refusals for the reason that the Minister is not in a position to divert resources towards previous applications.

It is of most concern to us that it appears from this case that it is the Minister’s interpretation of the Supreme Court’s reasoning in Malak that he can continue to refuse to provide applicants with the grounds for refusal for reasons involving only administrative difficulties such as “scarce resources”. 

Brophy Solicitors

25.01.13