AN Indian doctor who has lived in the State for 10 years yesterday won his High Court case to have a Ministerial decision refusing him Irish citizenship quashed.
Mr Justice Kelly also made an order that the doctor's application for a certificate of nationalisation should be remitted for reconsideration to the Minister for Justice.
The Minister had discretionary power and there was nothing in law which forbade her from being guided by a policy or set of rules. ,But care must be taken to ensure that the application of this policy did not disable the Minister from exercising her discretion in individual cases, the judge said.
Dr Parsharum Mishra (44), Kirkpatrick Drive, Dublin, took the action against the Minister for Justice and the Attorney General.
Mr Justice Kelly said Dr Mishra was an Indian national and married in India in 1982. He had two children, one born in Birmingham, England, in October 1985 and the second born in Kilkenny in July, 1989, who is an Irish citizen.
He obtained his degrees in medicine and surgery in India and practised there. He then went to England and in 1986 came to Ireland.
In order to practice medicine in this country, he had to obtain temporary registration with the Medical Council and this had a maximum five year period.
Previously, non EU doctors had to satisfy two conditions before full registration; to acquire Irish citizenship and a post graduate recognised qualification. After 1992, the Medical Council amended its rules so that Irish citizenship was no longer a prerequisite.
In August 1991, Dr Mishra applied to the Minister for naturalisation.
In August 1993, a Department letter informed him that the Minister was not prepared to grant him a certificate of naturalisation. No reason was given.
Dr Mishra's temporary registration expired and he took examinations to obtain full registration but he passed three out of five. Now he could no longer work.
In an affidavit at the hearing, a Department official had stated there was a general policy of the Minister not to naturalise people who would be unemployable in their chosen profession and by reason of such, would lea after obtaining citizenship.
The judge said it was clear this policy emerged from past experience with foreign doctors who when unable to practise in this country were naturalised and then left and used their Irish citizenship to gain entry to countries where they otherwise would have no such entitlement.
Dr Mishra was undoubtedly unemployable in his chosen profession. However, the policy went further and involved consideration of persons who would leave on obtaining citizenship. It was in respect of the second aspect that he [the judge] found a difficulty.
The decision of the Minister to refuse the certificate was in the words of the affidavit "in line with the guidelines".
The application of these guidelines necessarily involved a conclusion being drawn that Dr Mishra would leave Ireland after obtaining citizenship. The evidence was entirely to the contrary.
While circumstances had changed since the application was made in 1991 and the refusal in 1993, no inquiry was made on whether Dr Mishra's intentions had changed.
"It appears to me to be fundamentally unfair that the application of this general policy, involving as it does the making of an assumption adverse to him concerning his future intention as solemnly declared, required at least that he be given an opportunity to clarify his position," the judge said.
The only doubt raised derived from Dr Mishra's failure to obtain full registration as a doctor. But that fact alone did not mean that if he obtained citizenship, he would leave the jurisdiction contrary to his expressed intention.
It was desirable to state that nothing in the judgment should be construed as in any way suggesting how the application should be reconsidered as to its merits.