Syrian wins appeal over failure to secure citizenship

 

A unanimous five-judge Supreme Court has overturned the Minister for Justice’s refusal to grant a Syrian lawyer a certificate of naturalisation for Irish citizenship after finding the Minister was obliged to give reasons for his refusal but failed to do so. The judgment has widespread implications for other administrative decisions where unfairness is alleged.

Giving the court’s judgment in favour of Ghandi Mallak, Mr Justice Nial Fennelly observed that developing Irish jurisprudence provided compelling evidence that it must now be “unusual” for a decision-maker to be permitted 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.

Secured asylum

Such decisions were not excluded from review by the courts and any opinion formed by the Minister must be held bona fide, factually sustainable and not unreasonable.

Syrian lawyer Mr 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.

Mr Mallak’s first application was refused on grounds that he was not resident here long enough and he applied again in December 2005. Almost three years later, in November 2008, the Minister refused the application without saying why. Mr Mallak’s wife secured citizenship.

Mr Mallak’s lawyers later sought documents under the Freedom of Information Act, including the Minister’s reasons, but were ultimately told the Minister was not obliged to give a statement of reasons.

The Office of the Information Commissioner (OIC) told Mr Mallak’s lawyers the Minister’s refusal to give reasons was correct and in line with section 18 of the FoI Act permitting exemption from disclosure. The OIC also later acknowledged Mr Mallak was left “none the wiser” as to why his application was refused.

Further requests to the Department of Justice led to it disclosing to Mr Mallak a schedule of records titled “Garda report” and a “Garda Request Form” of which he was previously unaware. He said those documents were never previously disclosed to him, he was given no opportunity to meet any adverse findings in them and speculated they were the documents deemed exempt under the FoI Act.

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

Yesterday Mr Justice Fennelly said there was an emerging commonly held view that persons affected by administrative decisions had a right to know the reasons for them so they could understand them and, if they chose, challenge them in the courts.

‘Mystified’

At the very least, a decision-maker must be able to justify a refusal but there was no attempt to do so here, he said. While the Minister argued there were issues of public policy against giving reasons, no reasons related to the public interest were disclosed in even the most general terms. “One can understand the applicant being mystified,” he remarked.

The failure to provide reasons prevented Mr Mallak from making any fresh meaningful application for naturalisation or challenging the refusal on substantive grounds in judicial review, he ruled.

While a provision of the Irish Nationality and Citizenship Act allowed the Minister to refuse naturalisation if he believed a person was not of good character, the Minister had not sought to rely on that but provided no reasons at all, he noted.

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.

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