Court allows naturalisation refusal where national security concerns prevent applicant from addressing undisclosed material.

THE COURT OF APPEAL

Neutral Citation Number: [2018] IECA 112

2016, No. 411

Peart J.

Hogan J.

Gilligan J.

BETWEEN

X.P.

APPELLANT/

APPLICANT

- AND -

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

JUDGMENT of Mr. Justice Hogan delivered on the 18th day of April 2018

1. I have had the opportunity of reading in draft the judgment which Gilligan J. is about to deliver and I gratefully adopt the more

detailed statement of facts contained in that judgment. I agree with his conclusions.

2. It gives me no pleasure to have to reach this conclusion because I agree entirely with Gilligan J. that it is in many respects unfair

that the Minister should rely on material which is said to involve highly sensitive matters touching on national security of which the

applicant, Mr. P., has not had sight and in respect of which he knows nothing. Mr. P. cannot accordingly address these national

security concerns in any realistic way so far as his application for naturalisation pursuant to s. 15 of the Irish Nationality and

Citizenship Act 1956 (as amended) is concerned

3. This state of affairs cuts across the basic constitutional value of fair procedures since it is elementary law that a decision maker

exercising statutory powers cannot generally rely on material not disclosed to the applicant, at least absent exceptional

circumstances: see, e.g., Kiely v. Minister for Social Welfare (No.2) [1977] I.R. 287. The circumstances here are, however, quite

exceptional and touch directly on national security concerns and, it seems, sensitive diplomatic channels involving foreign States. It is

already clear from the separate (and un-appealed) decision of McDermott J. in the High Court on the issue of privilege that he has

reviewed the relevant documentation on which the Minister relies. He accordingly has ruled that the Minister may properly claim a

public interest immunity from disclosure in respects of key parts of these documents. It must therefore be accepted that there is a

judicial finding to the effect that the material which was not disclosed to Mr. P. in the course of his naturalisation application presents

real and pressing national security concerns.

4. In these circumstances, like Gilligan J., I feel compelled to hold that the present case is one where this Court’s capacity, in the

words of Article 40.3 of the Constitution, to defend and vindicate the fair procedure rights of the applicant “as far as practicable” is

constrained by these self same national security concerns. While I accept that this is in many respects unsatisfactory, the only other

step presently open to this Court - namely, to order the release of the material on even a redacted or summary basis to Mr. P. - is

simply not a practicable one.

5. Counsel for the applicant, Mr. Kelly S.C., drew our attention to the position which obtains in some other jurisdictions where there is

an elaborate system of special counsel who have been vetted by intelligence and security services and who are permitted to look at

this material, even if the client in question is not. But the very creation of such a system itself raises wider issues of security policy in

respect of which the judiciary is ill-suited to determine or design and, more importantly, in respect of which tasks they have no

democratic mandate: see here, by analogy, the recent decision of this Court in Moore v. Minister for Arts, Heritage and the Gaeltacht

[2018] IECA 28 in which we held that, for somewhat similar reasons, the courts had no free standing power to determine in the first

instance whether a particular place, building or monument should be regarded as a national monument for the purposes of s. 2 of the

National Monuments Act 1930. The creation of such a system of special counsel - and I refrain from expressing any view on the

merits of such a proposal - simply lies beyond the capacity of the judicial branch of government to create or design.

Whether the grant of citizenship by naturalisation involves the implementation of European Union law for the purposes of

Article 51(1) of the EU Charter of Fundamental Rights and Freedoms

6. I now turn to the Mr. P.’s other major submission, namely, that the refusal by the Minister to grant a certificate of naturalisation

involves the implementation by the State of European Union law for the purposes of Article 51.1 of the EU Charter of Fundamental

Rights and Freedoms, thus triggering – or so the argument runs – the guarantees to good administration and access to the file

contained in in Article 41.2(b) of the Charter and the right to an effective remedy in Article 47 of the Charter.

7. Article 9 of the Constitution deals with citizenship. Article 9.1.1 provides that every one who was a citizen of Saorstát Éireann

became a citizen of Ireland on the coming into force of the Constitution on 29th December 1937. Save for the specific position of

certain categories of persons born on the island of Ireland as provided for in Article 9.2 (as inserted by the 19th Amendment of the

Constitution Act 1998 and as subsequently modified by the 27th Amendment of the Constitution Act 2004) who are entitled to such

citizenship by virtue of their birth and parentage, Article 9.1.2 of the Constitution provides that the “future acquisition and loss of

Irish nationality and citizenship shall be determined in accordance with law.”

8. It is Article 9.1.2 which is the foundational constitutional provision so far as Mr. P. is concerned since he was not born on the

island of Ireland but was instead born in a foreign State. To qualify for citizenship, therefore, Mr. P. must, therefore, comply with a

law regulating the entitlement to citizenship which has been enacted in accordance with Article 9.1.2 of the Constitution.

9. There is no dispute but that the law in question is the Irish Citizenship and Nationality Act 1956 (“the 1956 Act”) (as amended). As

there is no suggestion that Mr. P. is entitled to citizenship by descent, his entitlement to that citizenship accordingly must rest on the

naturalisation provisions of s. 15 of the 1956 Act (as amended). Section 15 of the 1956 Act provides that the Minister has an

absolute discretion to grant a certificate of naturalisation to a person where the Minister is satisfied that the person:

“(a) is of full age;

(b) is of good character;

(c) has resided continuously in the State for at least one year immediately before the date of the application and has had

a total residence in the State of four years during the eight immediately preceding years;

(d) intends in good faith to continue to reside in the State after naturalisation; and

(e) has made a declaration in the prescribed manner of fidelity to the nation and loyalty to the State either before a

District Judge in open court, in a citizenship ceremony or in such manner as the Minister, for special reasons, allows.”

10. Perhaps the first thing to note about these provisions in this context is that the decision whether to grant citizenship by

naturalisation is an executive act which is provided for by a law enacted by the Oireachtas in accordance with Article 9.1.2. In other

words, the decision to grant citizenship by naturalisation represents an autonomous act of sovereign power by the State in

accordance with the Constitution. Indeed, the grant of citizenship to a foreign national – coupled as it is with the requirement of

Article 9.3 of the Constitution that all citizens must demonstrate loyalty and fidelity to the State – may be regarded as part of the

inviolate core of national sovereignty envisaged by Article 5 of the Constitution, so that if State lacked this power it might not be

regarded as a fully sovereign state within the sphere of international law.

11. While this State has elected to share key parts of its sovereignty with the other Member States of the European Union in the

manner contemplated by Article 29.4.3 et seq. of the Constitution, decision-making in respect of who is entitled to citizenship of the

State is not one of them. It is true that Article 20(1) TEU provides that every citizen of a Member State shall also be an European

Union citizen. At the same time, however, it is also clear that the determination of who is to be a citizen of a particular member state

remains, in principle, at least, a matter exclusively for the member state concerned: see, e.g., C-200/02 Chen [2004] E.C.R. I -9925;

Case C-135/08 Rottmann EU:C: 2010: 104, [2010] E.C.R. I-4449. It follows, therefore, that the decision by this State (or, for that

matter, any other Member State) to grant citizenship represents the exercise of its own national sovereignty and does not in any

sense involve the implementation of Union law within the sense understood by Article 51.1 of the Charter. The Charter, accordingly,

has no application to the issues presented in this appeal.

12. In arriving at this conclusion I have not overlooked the decision of the CJEU in Rottmann on which the applicant placed a good

deal of reliance. The facts of that case were rather singular in that an Austrian national had applied for German nationality with the

consequence that he thereby lost his original Austrian citizenship. It later emerged that Mr. Rottmann had failed to disclose that he

was under investigation by the Austrian authorities at the time of his application for German citizenship, so that the German courts

held that he had acquired German naturalisation by deception. The German Administrative Court held that the net result of this was

that Mr. Rottmann lost his German nationality and was thereby rendered effectively stateless.

13. Following a reference by that Court to the Court of Justice, the latter Court held that the exercise by a Member State of its

powers to determine the acquisition or loss of nationality was to be exercised with due regard to the principles of European Union law

“in so far as it affected the rights conferred and protected by the legal order of the Union.” The Court held that national laws

providing for the loss of national citizenship – including, as a consequence, loss of citizenship of the Union – were not contrary to the

European Union law provided that the decision to withdraw citizenship was not in itself disproportionate.

14. In the present case, however, it cannot be said that the decision of the Minister to refuse to grant a certificate of naturalisation

to Mr. P. affects any rights of his which have been conferred and protected by the legal order of the Union, precisely because he has

never been an Irish citizen (and, by extension, a citizen of the European Union) in the first place.

Conclusions

15. For these reasons, therefore, I am of the view that by refusing to grant a certificate of naturalisation to Mr. P. in accordance

with s. 15 of the 1956 Act the Minister (and, by extension, the State) was not implementing Union law within the meaning of Article

51.1 of the Charter with the result that neither the Charter and nor, for that matter, European Union law have any application to this

decision.