Court of Appeal dismisses appeal where national security privilege prevents disclosure of reasons for citizenship refusal.

THE COURT OF APPEAL

[2016 411]

Peart J.

Hogan J.

Gilligan J.

BETWEEN

A.P.

APPELLANT/APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

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

1. In a reserved judgment handed down on the 19th July 2016, the High Court (Stewart J.) held that the plaintiff failed to discharge

the burden of proof that there was an error in the decision making process engaged in by the respondent in this matter in

circumstances where the applicant’s application for an order of certiorari in respect of the decision of the respondent made on the

1st September 2014 to refuse an application by the applicant for naturalisation as an Irish citizen and an application for an order of

mandamus requiring the respondent to disclose the information adversely affecting the appellant were denied. It is from this decision

that the appellant appeals.

2. The background is that the applicant is an Iranian national who was granted refugee status in Ireland in December, 1991. Since

that time he has applied to the respondent for a certificate of naturalisation on several occasions. All of these applications have been

denied, including an application made on 30th April 2013. The respondent provided no reason for the refusal of this application, relying

on the provisions of the Freedom of Information Act 1997 as amended for so doing. The applicant challenged this decision by way of

judicial review before McDermott J. in the High Court, seeking inter alia an order of certiorari quashing the respondent’s decision and a

declaration that the respondent’s failure to provide reasons was unlawful. In those proceedings (Record No. [2013 No. 347 J.R.]) an

affidavit was filed by the respondent alluding to the existence of certain documents (documents A, B and C) concerning the applicant

and his background. The respondent asserted executive privilege over these documents on the ground that disclosure would be

adverse to the interests of the State.

3. The applicant sought to inspect the documents referred to in the respondent’s affidavit, contending that the respondent’s actions

breached his right to fair procedures, constitutional justice and an effective judicial remedy. McDermott J. delivered a written

judgment on this motion ([2014] IEHC 17) in which he found it necessary for the court to inspect the documents in question under

the principles outlined in Murphy v. Dublin Corporation [1972] IR 215 and Breathnach v. Ireland (No. 3) [1993] 2 IR 548. He also held

that the decision reached in Ambiotrix v. Minister for the Environment (No. 1) [1992] 1 IR 277 enabled the Court to decide which

public interest should prevail – that involved in the production of evidence or the public interest involved in respecting executive

privilege for the purpose of national security.

4. McDermott J. held that one document A. should be disclosed in full and that another document B. should be disclosed in a redacted

form. The Court upheld the claim of privilege over a third document C. in its entirety. This decision was not appealed. The case

proceeded to a hearing and McDermott J. delivered a judgment on the substantive application for judicial review on 2nd May 2014,

[2014] IEHC 241. In that decision McDermott J. ruled in favour of the applicant, finding that there was nothing inhibiting the

respondent from providing a more detailed reason or justification for the decision. A cryptic reference to the provisions of the Freedom

of Information Act 1997 did not suffice.

5. Following the judgment of McDermott J., the applicant made a further application for a certificate of naturalisation, which is the

subject matter of this appeal. Two civil servants working for the respondent prepared a report that set out inter alia the national

security/international relations concerns that arose in the applicant’s case. The report recommended against granting the application

on the basis that “the Minister cannot have confidence in the applicant’s declaration of fidelity to the Irish State in this case nor be

satisfied that the applicant meets the condition of good character as specified in s. 15(1)(b) of the Irish Nationality and Citizenship

Act 1956 as amended”. The report also states that the applicant’s right to specific reasons is outweighed by national security

interests in maintaining confidentiality over the information concerned. The respondent signed and dated the report on 25th August

2014 indicating her acceptance of the negative recommendation in relation to the applicant’s case. By letter dated 1st September

2014 the applicant was informed of the refusal of his application and a copy of the report as relied on was also sent to the applicant.

6. It appears to be clear that the applicant was provided with a reason for the refusal, namely, national security interests, but has

not been provided with the basis for the conclusion that national security interests required the maintenance of confidentiality over

the basis of the reason which resulted in the application being refused.

7. It is clear that the respondent has relied on the content of Documents A, B and C in arriving at her decision to refuse the applicant

naturalisation and citizenship.

8. The applicant claims that his good name has been seriously impugned by the respondent and he has no idea as to what is being

held against him. He believes that whatever it is, it is mistaken because he is a man of good character. He claims that he is being

denied the opportunity to correct whatever slur or damaging assertion has been held or levied against him and is being maintained

behind closed doors. Damaging data remains on file against him which he is not being allowed to meet or address in even the most

general way and to rectify. The applicant asserts that this is manifestly unfair and a gross violation of his constitutional right to have

his good name protected and vindicated and further that it is in breach of his rights and the respondent’s duties under Article 40.3 of

the Constitution and is not permitted under European law or the European Convention on Human Rights.

9. Mr. Kelly, S.C., on behalf of the appellant, submits that the applicant is unable to address the concerns of the Department of

Justice as he does not know what they are. He contends that the case revolves around only assertions of national security.

10. The applicant relies extensively on the decisions of the High Court and Supreme Court in Mallak v. Minister for Justice, Equality

and Law Reform [2011] IEHC 306 and [2012] 3 IR 297 and inter alia the judgment of the Supreme Court (Fennelly J.) in particular at

para. 49, 54, 65, 67 and 68 as follows:

“[49] The mere fact that a person in the position of the applicant 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.

...

[54] The general principles of natural and constitutional justice comprise a number of individual aspects of the protection

of due process. The obligation to give fair notice and, possibly, to provide access to information or, in some cases, to

have a hearing are intimately interrelated and the obligation to give reasons is sometimes merely one part of the process.

The overarching principle is that persons affected by administrative decisions should have access to justice, that they

should have the right to seek the protection of the courts in order to see that the rule of law has been observed, that

fair procedures have been applied and that their rights are not unfairly infringed.

...

[65] This body of cases demonstrates that, over a period approaching 30 years, our courts have recognised a significant

range of circumstances in which a failure or refusal by a decision maker to explain or give reasons for a decision may

amount to a ground for quashing it. Costello J. attached importance, quite correctly, to the presence or absence from the

statutory scheme of a right of appeal. The absence of a statement of reasons may render such a right nugatory.

...

[67] More fundamentally, and for the same reason, it is not possible for the applicant, without knowing the Minister's

reason for refusal, to ascertain whether he has a ground for applying for judicial review and, by extension, it is not

possible for the courts effectively to exercise their power of judicial review.

...

[68] 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.”

11. Mr. Kelly submits that the applicant has only been given the conclusion and not even a hint of a reason. He submits that a good

administrator gives reasons and that reasons lead to better decisions. Mr. Kelly clarifies his submission by saying that he wants to see

the redacted portion of Document B and the entire overdraft Document C and, failing that, he wants Document C in a redacted form

and failing that to be provided with the gist of what is contained in both documents. When asked by the Court as to why there was

no appeal in respect of the privilege that was ordered in respect of Documents B and C, Mr. Kelly indicated that in his view, there was

no reason to appeal. The applicant had applied to inspect the documents and there was no point in appealing the privilege conclusion

in respect of part of Document B and the entire of Document C. Specifically, Mr. Kelly submitted that the attitude adopted was not a

collateral attack on or a collateral appeal from the decision of McDermott J. and the order which he made.

12. Mr. Kelly relied on a number of English decisions, including R. v. Secretary of State for the Home Department, ex parte, Fayed

[1998] 1 WLR 763.

13. In Fayed, the Court of Appeal took that view with regard to s. 44(2) of the British Nationality Act 1981 that although the section

relieves the secretary of state from the obligation of giving reasons in respect to decisions made in the exercise of his discretion, he

was not relieved of the obligation to act fairly and that in the context of the case in question fairness required that before reaching

his decision he should inform an applicant of the nature of any matters weighing against the grant of the application and afford him an

opportunity of addressing them and that accordingly, in failing to adopt such a course, his decisions had been reached unlawfully.

14. It has to be borne in mind that in Fayed the applicants were given no reason for the refusal of their application. Lord Woolf MR at

p. 68 of the judgment stated:

“The letters communicating the decisions to refuse the applications were dated 23rd February, 1995 and were as the

judge (trial judge) said ‘terse in the extreme.’ They merely informed each of the Fayeds that ‘after careful consideration

your application is being refused’. No reasons were given for the decision so applications were made to the Home Office

for reasons for the refusals but they were declined.”

15. Mr Kelly submitted that in recent years the aspect that arises in this particular appeal has come more into prominence with the

arrival in a stronger way in the United Kingdom and the United States of international terrorism. How the system works in England is

that effectively where people were subject to control orders and not knowing any of the reasons involved, the solution was to set up

a special immigration appeals tribunal which gave rise to a situation where it was recognised that the person who was being affected

should have the evidence that is being relied upon tested. A compromise method which was ultimately adopted, which was also

adopted by Canada and New Zealand, was to appoint special advocates. Generally these were members of the Bar who were vetted

by security services and they consider all the necessary privileged or secured information that is relied on. They are prohibited from

speaking to the person concerned but in this way the evidence that is relied on by the state authorities is tested.

16. Mr Kelly further relied on the decision of V.C. Sir Robert Megarry in John v. Rees & Ors. [1970] 1 Ch. 345 where, at p. 402, the

Vice-Chancellor stated:

“It may be that there are some who would decry the importance which the courts attach to the observance of the rules

of natural justice. “When something is obvious,” they may say, “why force everybody to go through the tiresome waste

of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.” Those

who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows,

the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges

which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and

unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature

who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision

against them has been made without their being afforded any opportunity to influence the course of events.”

17. Mr Kelly further relied on the decision of the Administrative Court, Queen’s Bench Division R. (on the application of A.H.K. & Ors.)

v. Secretary of State for the Home Department [2014] EWCA Civ 151 and a number of decisions of the European Court of Justice

and in this regard was assisted by Mr Lynn, S.C., on the European aspect. My colleague Hogan J. will deal with the European aspect

in a separate judgment.

18. Ms. Stack on behalf of the respondent submitted that it was the Minister’s position that this case is covered by Irish law and not

by EU law. Counsel clarified that from the Minister’s perspective, it is correct that the reason given for refusing a Certificate of

Naturalisation was in the interests of national security and that this is the essential reason and is a justification for not having to give

any further reasons for the conclusion arrived at. It is submitted on the respondent’s behalf that there is no disputing that that in the

situation that prevails, the normal rules of fair procedures do not apply because there is an issue as to national security.

19. In particular, para. 79 of the judgment of Fennelly J. in Mallak is relied in insofar as it states:

“[79] Following the making of the order, it will be a matter for the Minister to consider the application afresh. It will be a

matter for him to decide what procedures to adopt in order to comply with the requirements of fairness. It is not a matter

for the court to prescribe whether he will give notice of his concerns to the applicant or disclose information on which

they may be based or whether he will continue to refuse to disclose his reasons but to provide justification for doing so.

Any question of the adequacy of reasons he may actually decide to provide or any justification provided for declining to

disclose them can be considered only when they have been given. At this stage, I would propose that the court make

only the limited decision to quash the Minister's decision.”

20. Counsel emphasises the fact that the underlying consideration in Mallak was that no reason at all had been given and the

application had simply been refused. That is not the situation pertaining in this instance where the reason given and as set out in the

documentation as provided to the applicant is that of national security based on the content of Documents A, B and C.

21. Reliance is placed on the judgment of O’Donnell J. in Murphy v. Ireland [2014] 1 I.R. 198 which considered Mallak, in particular at

para. 40 of his judgment where he states;

“[40] However, the decision in Mallak v. Minister for Justice [2012] IESC 59 , [2012] 3 I.R. 297 was rather more nuanced

than a simple citation in these paragraphs would suggest. The judgment points to s. 18(2) of the Freedom of Information

Act 1997, which introduced into Irish law a statutory entitlement to reasons. However, the Director is not subject to that

Act in respect of prosecutorial decisions. Mallak undoubtedly brings the common law on the duty to give reasons into line

with the obligations of statute, but it does not address the question whether the common law requires decision makers to

go further than the statutory requirement. Put another way, the considerations which underpin the limitation and the

scope of the statutory right to reasons may also be effective at common law. The decision in Mallak v. Minister for

Justice refers, without disapproval, to the decision in Eviston v. Director of Public Prosecutions [2002] 3 I.R. 260 and also

to The State (Lynch) v. Cooney [1982] I.R. 337 where there was limited right of review and no reasons were provided

until the High Court hearing. Perhaps most notably, the decision in Mallak v. Minister for Justice contemplated the

possibility, at para. 77, p. 324, that a decision maker could comply with the requirements of the law not by disclosing

reasons but rather by providing justification for refusing to do so.”

22. Ms Stack contends that following Mallak, the reasons given can be very basic, but national security is effectively in a separate

category, particularly in naturalisation cases where you have a confluence of two factors, namely, the exercise of a discretion and

national security.

23. Reliance is placed on the respondent’s behalf on the assessment of Documents B and C by an esteemed member of the High

Court, McDermott J. and he has had the benefit of seeing both documents and considering their content and has stated on the record

in his judgment that he is satisfied that Document C is confidential and entitled to privilege and having considered the contents of the

document, he was satisfied that it is in the public interest that its contents remain confidential.

24. Reference is also placed on the fact that in respect of Document B, McDermott J. was satisfied that the asserted claim of

privilege should apply to a considerable portion of the document’s contents and that there was a public interest in maintaining the

confidentiality of the information and information gathering process referred to in this confidential note, but that elements may be

safely redacted for the purposes of affording inspection of the unredacted portions. In this regard, McDermott J. was satisfied that

limited inspection of this document does not in any way compromise the confidentiality of any information obtained by the respondent

or the public interest. However, he was satisfied that the disclosure or inspection of the redacted portion would be inimical to the

interests of the State.

25. Ms. Stack emphasises that the assessment and judgment of McDermott J. was accepted by the applicant and the Court’s decision

in this regard was not appealed. Further, applying the facts of Murphy to this case, it was rational for the Minister to refuse the

application for nationalisation. It is submitted that the decision in Murphy v. Ireland is an answer in large part to the applicant’s case

herein.

Conclusion

26. The judgment of the trial judge (Stewart J.) involves a comprehensive review of the facts, submissions on behalf of the parties

and an analysis of the legal principles applicable and she arrived at a reasoned conclusion that the applicant failed to discharge the

burden of satisfying her that there was an error in the decision making process engaged by the respondent. I take the view that it

has to be borne in mind that there is no question of the appellant being deprived of any loss of liberty. He is entitled to apply for a

Certificate of Naturalisation to the Minister which, if successful, will enable him to obtain an Irish Passport and to travel with all the

benefits that an Irish Passport confers on the holder. However, the granting of Irish citizenship is a privilege, and one which, if

granted, carries with it significant responsibility, in many ways, principally, on the respondent’s behalf. In the circumstances of this

case, in compliance with Mallak, the applicant was given a reason for the refusal of his application, namely, in the interests of national

security. It is the case that Document B contained in part, and Document C as a whole, information that was obtained from an

outside source which put the Minister on notice of certain matters, which in the interest of national security and in the interest of

protecting the subject matter and source of such information, caused her to decline to divulge the content thereof. In the exercise of

her discretion, she has chosen not to release the content thereof to the applicant. As a fallback position, the applicant contends that

at least he should be given the gist of the document, but again, the Minister in the exercise of her discretion declines to do so.

27. It has to be accepted that the situation from the applicant’s perspective appears to be unfair. The reality is that there is no other

better solution available. There is not, as such, any formal procedure in place in this jurisdiction whereby an independent body or

person, such as a retired or current judge of the High Court or a senior barrister, can examine a particular document over which

privilege is claimed in the interest of national security so as to consider whether or not the document should be released, or

alternatively, that perhaps the gist of the document in some way can be released to an unsuccessful applicant seeking Irish

citizenship. It is clear from the English authorities that there is a system available in the United Kingdom in a similar type of situation.

However, in the particular circumstances of this case, Documents B and C have been considered by an independent judge of the High

Court, and as set out in his judgment in relation to the privilege aspect, he has clearly indicated that Document B can be released

subject to the redacted portions as directed by the Court and that Document C may not be released, being satisfied that it is in the

public interest that the contents remain confidential. It can clearly be deduced from the judgment of McDermott J. that not even the

gist of Document C or the redacted portion of Document B can be released to the applicant.

28. The interests of national security in my view outweigh the position of the applicant who finds himself in an unfair situation

whereby he does not know the basis of the reason for the respondent coming to a conclusion that national security interests result in

him not being given the basis of the conclusion arrived at by the respondent Minister.

29. I find no fault in the reasoning and conclusion as arrived at in the judgment of Stewart J. as delivered on 19th July 2016 and no

reason, on the basis of the submissions made to this court on the applicant’s behalf as to why in some way that decision should be

set aside.

30. Accordingly, having read and considered the judgment on the European aspect of this matter of my colleague Hogan J., which I

agree with, I dismiss the applicant’s appeal.