The mystery that has surrounded many decisions to refuse naturalisation is no longer acceptable, following a Supreme Court Decision of the 6th of December 2012 (Mallak v MJELR [2012] IESC 59, here).
The issue for decision in the case was the extent to which decision makers are obliged to disclose the reasons for which decisions are made. The result requires the Minister to exercise his discretion in making naturalisation decisions in a manner that is fair and transparent.
The judgement of Mr. Justice Fennelly explains that the applicant is a national of Syria. He and his wife arrived in Ireland in 2002. They were both granted refugee status in November 2002. Mrs. Mallak was granted a certificate of naturalisation in October 2008 and is now an Irish citizen. Some three years after he applied, Mr. Mallak was informed that his application for naturalisation had been refused. No reason was offered for the refusal.
Mr. Justice Fennelly quashed the Minister’s decision to refuse naturalisation, and ordered the Minister to consider the application afresh:
76. The result is that the Minister has not suggested that there are any reasons relating to the appellant’s character which could justify refusing him naturalisation and that his rights under the Refugees Act are not restricted in the interest of national security or public policy. Furthermore, the Minister granted a certificate of naturalisation to the appellant’s wife with whom he has the right to live (in company with their children). One can understand the appellant being mystified. In my view, the Minister was under a duty to provide the appellant with the reasons for his decision to refuse his application for naturalisation. His failure to do so deprived the appellant any meaningful opportunity either to make a new application for naturalisation or to challenge the decision on substantive grounds. If reasons had been provided, it might well have been possible for the appellant to make relevant representations when making a new application. That might have rendered the decision fair and made it inappropriate to quash it. In the absence of any reasons, it seems to me that the appropriate order is one of certiorari quashing the decision. [my emphasis]
This decision is a significant revision of existing authority: In July 2010, the High Court held that the discretion of the Minister in considering applications for certificates of naturalisation is absolute and rejected a submission that the Minister is obliged to furnish reasons (Abuissav MJELR [2010] IEHC 366, here). This case in turn relied on the decision on Pok Sun Shun v MJELR [1986] ILRM 593, which remains authority for the proposal that “There is no absolute rule of natural justice that reasons for the decisions of an administrative authority must be given.”
The judgement of Mr. Justice Fennelly examines the rules of natural justice, confirming that the Minister must have a reason for making his decision:
43. It cannot be correct to say that the “absolute discretion” conferred on the Minister necessarily implies or implies at all that he is not obliged to have a reason. That would be the very definition of an arbitrary power. Leaving aside entirely the question of the disclosure of reasons to an affected person, it seems to me axiomatic that the rule of law requires all decision-makers to act fairly and rationally, meaning that they must not make decisions without reasons. …
Furthermore, the rules of natural justice apply to such decisions, notwithstanding the fact that the Minister has absolute discretion whether to grant Certificates of Naturalisation:
45. … It does not follow from the fact that a decision is made at the absolute discretion of the decision-maker, here the Minister, that he has no reason for making it, since that would be to permit him to exercise it arbitrarily or capriciously. Once it is accepted that there must be a reason for a decision, the characterisation of the Minister’s discretion as absolute provides no justification for the suggestion that he is dispensed from observance of such requirements of the rules of natural and constitutional justice as would otherwise apply…
The decision confirmed that:
47. The mere fact that a person in the position of the appellant is seeking access to a privilege does not affect the extent of his right to have his application considered in accordance with law or to apply to the courts for redress.
This is relevant because the failure to give a reason for the decision made it impossible for the applicant to understand what he could do about it – he was in the dark as to whether he could seek a judicial review of the decision (if he thought the reason unfair), or how he should go about reapplying, and reassuring the Minister in respect of his concerns (whatever they were):
64. In the present case, the applicant points to the effective invitation to the appellant to “reapply for the grant of a certificate of naturalisation at any time.” … While, therefore, the invitation is, to some extent, in ease of the appellant, it is impossible for the appellant to address the Minister’s concerns and thus to make an effective application when he is in complete ignorance of the Minister’s concerns.
65. More fundamentally, and for the same reason, it is not possible for the appellant, without knowing the Minister’s reason for refusal, to ascertain whether he has a ground for applying for judicial review and, by extension, not possible for the courts effectively to exercise their power of judicial review.
However, it is important to note that the decision does not baldly state that the Minister should disclose his reasons for refusing naturalisation in every case. The requirement is a slightly more nuanced, requiring that the process be fair and transparent:
66. In the present state of evolution of our law, it is not easy to conceive of a decision-maker being dispensed from giving an explanation either of the decision or of the decision-making process at some stage. The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person has been enabled to respond to the concerns of the decision-maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded.
This decision reflects the concerns of immigrant rights organisation, which have been campaigning for a number of years for the introduction of a fair and transparent naturalisation process. I was fortunate to be able to contribute to a report on the subject that was published in 2011. “Living in Limbo: Migrant’s Experiences of Applying for Naturalistion” was published by the Immigrant Council of Ireland in association with Nasc, the Irish Immigrant Support Centre (for whom I was working at the time). You can read that report here.
Principal, Claire McCarthy Solicitor
